Resolution CM/ ResDH (2011)215 [1]

Execution of the judgment of the European Court of Human Rights

Böhmer against Germany

(Application No. 37568/97, judgment of 3 October 2002, final on 21 May 2003)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerned the unfairness of a trial due to a failure to observe the presumption of innocence (violation of Article 6, paragraphs 1 and 2) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)215

Information about the measures to comply with the judgment in the case of

Böhmer against Germany

Introductory case summary

The case concerns a decision of the Hamburg Court of Appeal of 16 October 1996 to revoke the suspension of a two-year prison sentence pronounced against the applicant on 14 June 1991. The European Court considered that the Court of Appeal had breached the presumption of the applicant ’ s innocence and thus his right to a fair trial in that, in the reasons of the decision to revoke the suspension, it had gone into an in-depth analysis of the applicant ’ s guilt with regard to other proceedings still pending in order to conclude that the applicant had committed a criminal offence during the probationary period (violation of Article 6§§1 and 2).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

The applicant made no request for just satisfaction.

b) Individual measures

On 21 October 2003, the Hamburg Public Prosecutor ’ s Office, referring to the judgment of the European Court , ordered that the prison sentence should not be enforced, as the Court of Appeal ’ s decision confirming the revocation of the suspension had violated the Convention. It held that enforcement would be illegal in view of the violation found by the European Court . The applicant was informed accordingly and he has not complained about any other potential consequence of the way the matter was resolved. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The judgment of the European Court was sent out to competent German courts and published in the Neue Juristische Wochenschrift ((NJW), 2004, Volume 1-2, p. 43-45).

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Germany has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies