Lexploria

The European Commission of Human Rights sitting in private on 10 March

1986 the following members being present:

MM C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

F. ERMACORA

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs G.H. THUNE

Sir Basil HALL

Mr H.C. KRÜGER, Secretary to the Commission

Having regard to Art 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (art. 25);

Having regard to the application introduced on 10 June 1985 by Ismet

KAYHAN against the Federal Republic of Germany and registered on 11

June 1985 under file N° 11585/85;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen, born in 1962 and living in Akcadag

Malatya. He is represented by Messrs. Wingerter, Hohbach,

Stiefel-Bechdolf, lawyers in Heilbronn.

On 1 September 1980 the applicant arrived as a tourist in the Federal

Republic of Germany, where he stayed with relatives without a

residence permit. On 1 June 1981 the authorities noticed that he had

taken up work without a work permit. Consequently, an expulsion order

was issued against him on 16 June 1981 and on the following day an

arrest order for the purpose of the expulsion. On 22 June 1978 the

applicant lodged an appeal and applied for political asylum. On

25 June 1981 the execution of the expulsion order was suspended and

the applicant was released.

On 13 July 1981 he was lodged in a home for political refugees at

Karlsruhe and ordered not to leave the city pending his request for

asylum.

On 15 September 1981 a fine of 25 day rates (in the amount of 15 DM

each) was imposed on the applicant by the Karlsruhe District Court for

having deliberately violated the order not to leave Karlsruhe. He

was, however, acquitted of a further charge, ie theft. His appeal was

dismissed on 4 March 1982. On 18 October 1983 the Federal

Constitutional Court quashed the appellate court's decision because

the appeal had been heard in the absence of the official defence

counsel who had been appointed by the court. The case was referred

back to the Karlsruhe Court of Appeal (Oberlandesgericht).

On 27 October 1983 the applicant requested the court to appoint

Mr Wingerter as his official defence counsel. This request was refused

on 17 February 1984 and again on 12 March 1984 on the ground that the

previous appointment of another official defence counsel for the

applicant was still valid.

On 6 April 1984 the proceedings were discontinued in accordance with

Section 47 (2) of the Regulatory Offences Act (OWiG). The appellate

court stated that in view of the applicant's return to Turkey it no

longer appeared necessary to punish him for an action which

constituted only a regulatory offence. The costs of the proceedings

were imposed on the treasury except for the applicant's necessary

expenses. Reimbursement of these expenses was refused on the ground

that "according to the given findings it was shown with sufficient

probability that Section 471 N° 5 of the Aliens Act (AuslG) and

Section 35 of the Act on Proceedings in political asylum matters

(AsylVfG) respectively, had been violated (nach den getroffenen

Feststellungen ist ein Verstoß gegen § 47 Abs 1 Nr 5 AuslG zur Tatzeit

bzw gegen § 35 AsylVfG nach der gegenwärtigen Gesetzeslage mit

hinreichender Wahrscheinlichkeit dargetan).

In a letter of 27 March 1984 applicant's counsel Wingerter had

objected to the court's intention to discontinue the proceedings,

considering that the applicant, having made a request for political

asylum, was free to move in the Federal Republic and should

consequently be acquitted.

On 12 April 1984 the appellate court rejected as being without object

and unfounded a motion of challenge submitted on the applicant's

behalf on 10 April 1984.

On 26 November 1984 a group of three judges of the Federal

Constitutional Court rejected, as offering no prospects of success,

the applicant's constitutional complaint against the appellate court's

order of 6 April 1984. Insofar as the applicant had alleged a

violation of the principle of presumption of innocence it is stated in

the decision of 26 November 1984 that the appellate court's reasoning

only indicated that according to the findings of the Karlsruhe

District Court there were sufficient reasons to suspect the applicant

of having committed the offence of which he was charged. In

particular the use of the word "shown" (dargetan) made it clear that

the appellate court did not determine the charge levied against the

applicant but only pointed out that in the circumstances it had been

justified to levy a charge against him (... das Oberlandesgericht hat

gleichsam nur die Schlüssigkeit des Vorwurfs eines Verstosses ...

geprüft und bejaht). In conclusion it is pointed out that the

applicant's innocence continued to be presumed (Seine Unschuld wird

deshalb weiter vermutet). The Federal Constitutional Court's decision

was received by applicant's counsel on 12 December 1984.

COMPLAINTS

The applicant considers that under Art 2 (1) of the Fourth Protocol

(P4-2-1) he was free to visit his relatives at Schwaigern and that

consequently the proceedings instituted against him on account of this

visit violated the said provision. Furthermore he complains that the

reasons given for the refusal to reimburse his necessary expenses

violate his right under Art 6 (2) of the Convention (art. 6-2) to be

presumed innocent. He further invokes Art 6 (1) of the Convention

(art. 6-1) which, in his opinion, is violated because Mr Wingerter was

not appointed as his official defence counsel and because the

proceedings against him were discontinued without his consent

depriving him of the possibility to argue his case. Furthermore he

argues that the challenged judge should not have participated in the

appellate court's decision of 6 April 1984 as he already participated

in the earlier decision of 4 March 1982 which was quashed by the

Federal Constitutional Court.

THE LAW

1. The applicant first complains that he was wrongly being

prosecuted for having disregarded an order not to leave Karlsruhe.

It is true that Art 2 (1) of the Fourth Protocol to the Convention

(P4-2-1) secures to everyone lawfully within the territory of a State

the right to liberty of movement and freedom to choose his residence.

However the applicant lived and worked as a foreigner in the Federal

Republic of Germany without having obtained a residence permit and a

work permit. Consequently an expulsion order was given against him.

This order was not affected by the applicant's subsequent request for

political asylum. Only its execution was stayed. In these

circumstances it cannot be found that the applicant was "lawfully"

within the territory of the Federal Republic.

An examination by the Commission of this complaint as it has been

submitted does not therefore disclose any appearance of a violation of

the rights and freedoms set out in the Convention and in particular in

the above Article (P4-2-1).

It follows that this part of the application is manifestly ill-founded

within the meaning of Art 27 (2) of the Convention (art. 27-2).

2. The applicant has further complained that in the regulatory

offence proceedings against him his right under Art 6 (1) of the

Convention (art. 6-1) to a fair trial had been violated as well as his

right to be presumed innocent (Art 6 (2)) (art. 6-2) as the reasons

given for the refusal to reimburse his necessary expenses implied his

guilt.

The Commission recalls that it repeatedly expressed the opinion that

Art 6 (2) (art. 6-2) cannot be understood as giving the accused an

unconditional right to the continuation of the proceedings against him

until the final proof or disproof of the charge (Adolf v Austria,

Comm Report, 8.10.80, para 56; see also Dec N° 4550/70, Soltikow

v Federal Republic of Germany, Coll 38, 123 (127)).

Consequently a decision discontinuing criminal proceedings on the

ground of procedural economy, or for other reasons does not in

principle violate any provision of the Convention if it simply implies

that reasons to suspect the person concerned of having committed an

offence continue to exist while the prosecuting authorities are

prevented from prosecuting or renounce to prosecute (Adolf Report,

para 59).

It may even be accepted that a decision discontinuing criminal

proceedings contains a statement indicating that although some

suspicion still exists there are not sufficient reasons to continue

the trial. It has to be noted that the Convention itself justifies

procedural measures on the basis of suspicion without granting an

unlimited right to be either convicted or acquitted (see Arts 5 (1)(c)

and 6 (3)(a)) (art. 5-1-c, art. 6-3-a). Consequently it does not, in

principle, violate the right to a fair trial if proceedings are

discontinued without a hearing on the merits of the case. As the

German courts did not determine the charge laid against the applicant,

it does not affect the applicant's right to a fair trial that his

motion of challenge was rejected as well as his request to appoint

another official defence counsel.

As regards the principle of presumption of innocence, it is mainly a

matter of degree whether a formulation in a decision discontinuing

criminal proceedings violates Art 6 (2) (art. 6-2). Unlike in the

cases Englert, Lutz and Nölkenbockhoff (Comm Reports of 9.10.85 and

18.10.85) which are pending before the European Court of Human Rights,

the reasons complained of in the present case do not contain a

statement that the applicant's "conviction" was "most likely" or "most

probable". The decision in question does not contain any prognosis on

the possible result of the proceedings had they not been discontinued

but is limited to the statement that in the light of the evidence so

far obtained a violation of the Aliens Act was shown with sufficient

probability. The Commission notes that according to the Federal

Constitutional Court the use of the term "shown" ("dargetan") in the

decision complained of makes it sufficiently clear that the appellate

court's reasoning does not express an appraisal of guilt but only an

appreciation of the validity of the charge laid against the applicant.

The Federal Constitutional Court expressly points out that "the

applicant's innocence continued to be presumed".

In these circumstances the Commission considers that read in the light

of the decision of the Federal Constitutional Court the appellate

court's order of 6 April 1984 does not imply a finding of guilt

(cf Eur Court HR, Adolf case, judgment of 26.3.82, Series A, Vol 49,

para 40). The complaint as it has been submitted does not therefore

disclose any appearance of a violation of the rights and freedoms set

out in the Convention and in particular in Art 6 (1) and (2)

(art. 6-1, art. 6-2).

It follows that this part of the application is likewise manifestly

ill-founded within the meaning of Art 27 (2) of the Convention

(art. 27-2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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KAYHAN v. THE FEDERAL REPUBLIC OF GERMANY

KAYHAN v. THE FEDERAL REPUBLIC OF GERMANY

LEXI