Communicated on 8 January 2014

FIFTH SECTION

Application no. 2130/10 Rachid EL KAADA against Germany lodged on 11 January 2010

STATEMENT OF FACTS

The applicant, Mr Rachid El Kaada , is a German national, who was born in 1988 and lives in Gladbeck . When lodging his application, he was detained in Essen Prison. He is represented before the Court by Mr T. Wings , a lawyer practising in Gladbeck .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case

On 9 October 2008 the Gladbeck District Court convicted the applicant of several counts of extortion, robbery, burglary , embezzlement and assault. Applying the criminal law relating to young offenders, it sentenced him to two years ’ imprisonment. The District Court suspended the execution of the sentence and granted probation. In a separate decision of the same day, the District Court imposed conditions on the applicant during the probatio n period, which was to run until 16 October 2010. The applicant was not to reoffend; in addition, he was ordered, inter alia , to complete at least 200 hours of unpaid social work.

O n 7 October 2009 the applicant was arrested . He was heard on 8 October 2009 by the investigati ng judge at the Herford District Court on suspicion of having committed another burglary in a hotel on 31 May 2009 / 1 June 2009 in Gladbeck . The applicant, who was not represented by counsel, admitted having committed the offence described in the detention order .

On 20 October 2009, in a hearing before the Gladbeck District Court for review of the necessity of his further detention on remand, the applicant, who was from then on represented by counsel, revoked his confession of 8 October 2009 . He argued that he had only confessed to the offence as a police officer had told him at the time of his arrest that he had good chances of being released from detention on remand if he did so.

2. The proceedings at issue

(a) The decision of the Gladbeck District Court

On 22 October 2009 the Gladbeck District Court revoked the suspension on probation of the applicant ’ s prison sentence granted in that court ’ s judgment of 9 October 2008 (Article 56f § 1 no. 1 of the Criminal Code; see Relevant domestic law and practice below) .

The District Court noted that in its decision of 9 October 2008 to suspend the sentence on probation, the applicant had been imposed the condition not to reoffend during the probation period. He had breached that condition as he had confessed having committed a burglary on 31 May 2009 / 1 June 2009 in Gladbeck. His new offence was similarly serious as the offences he had been convicted of on 9 October 2008 .

The District Court further noted that the applicant had failed to comply with additional conditions imposed in the probation order. In particular, he had failed to complete the hours of unpaid social work he had been imposed and had not contacted his probation officer without excuse.

Subsequently, on 23 October 2009, the Essen Public Prosecutor ’ s Office charged the applicant with burglary, committed in a hotel in Gladbeck on 31 May 2009 / 1 June 2009.

(b) The decision of the Essen Regional Court

On 27 October 2009 the applicant lodged an appeal against the District Court ’ s decision. He contested the court ’ s finding that he had reoffended. He stressed, in particular, that he had revoked his confession of 8 October 2009. Moreover, a confession alone, the credibility of which had not been tested, was not sufficient to be proved guilty of an offence. In any event, under the standards of European law, the revocation of the suspension of a sentence on probation could only be based on a final conviction of a new offence. He had to be presumed innocent until proved guilty according to law.

On 16 November 2009 the Essen Regional Court dismissed the applicant ’ s appeal against the District Court ’ s decision. The Regional Court considered that the revo cation of the suspension on probation of the applicant ’ s prison sentence could not be based on the applicant ’ s failure to have completed the hours of unpaid social work he had been imposed in the probation order because the District Court had failed to specify in which institution the applicant was to carry out that work.

However, the Regional Court found that the suspension of the applicant ’ s sentence had to be revoked because the applicant , as the District Court had correctly found, had committed another offence during the probation period. T he Regional Court confirmed that the revocation of the suspension of the applicant ’ s sentence did not require that the applicant had been convicted by a final judgment of the offence on which the revocation was based. It was sufficient that the court revoking the suspension of the sentence had obtained certainty by other means that the person concerned had committed the offence. The presumption of innocence laid down in Article 6 § 2 of the Convention did not warrant a different conclusion. That presumption only related to proceedings in which a decision on the charges against the accused had to be taken and not to proceedings concerning the revocation of the suspension of a sentence on probation. Referring, in particular, to a decision of the Federal Constitutional Court of 9 December 2004 (see Relevant domestic law and practice below), the Regional Court found that it was therefore sufficient, in particular, if the court revoking the suspension on probation of the penalty was convinced that the person concerned was guilty of a new offence on the basis of a credible confession that person made before a judge.

In the present case, the Regional Court was convinced that the applicant had committed a new offence, namely a burglary on 31 May 2009 / 1 June 2009 in Gladbeck, in view of the applicant ’ s confession of 8 October 2009 before the investigating judge . That confession was credible, in particular, as it was supported by the detailed description of the applicant ’ s acts before and after the offence given by witness S. before the police. The subsequent revocation of the confession by the applicant, who had further contested S. ’ s statements, arguing that S. wanted to take revenge following the breakdown of their relationship, was not credible in the light of the results of the investigations undertaken to date , in particular the reports of the witness statements made by S. and Z. before the police . The Regional Court therefore concluded that the applicant had demonstrated by his new offence that he had not fulfilled the expectations on which the suspension of his sentence had been based.

On 7 December 2009 , following an order of the Gladbeck District Court, the applicant started serving the sentence imposed on him in the Gladbeck District Court ’ s judgment of 9 October 2008.

(c) The decision of the Federal Constitutional Court

On 10 December 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Gladbeck District Court dated 22 October 2009 and of the Essen Regional Court dated 16 November 2009. He argued, in particular, that the said courts ’ finding, on the basis of the case-file alone, that he had committed another burglary had disregarded the rule of law and the presumption of innocence as guaranteed by the Basic Law and by Article 6 §§ 1 and 2 of the Convention. His initial confession before the investigating judge was irrelevant as he had revoked that confession, the credibility of which had not been tested by the courts revoking the suspension of his sentence on probation. He further took the view that the question whether he had committed a new burglary had to be determined by the competent criminal courts following a trial. The domestic courts ’ finding that he he had committed another burglary before he had been convicted thereof by a final judgment also disregarded the European Court of Human Right ’ s findings in a judgment of 3 October 2002 ( Böhmer v. Germany , no. 37568/97).

On 23 December 2009 the Federal Constitutional Court , without giving reasons, declined to consider the applicant ’ s constitutional complaint (file no. 2 BvR 2888/09) .

3. Subsequent developments

On 19 January 2010 the Gladbeck District Court convicted the applicant of burglary, committed on 31 May 2009 / 1 June 2009 in a hotel in Gladbeck , and sentenced him to one year ’ s imprisonment.

B. Relevant domestic law and practice

1. Relevant provision of the Criminal Code

Article 56f § 1 of the Criminal Code, on the revocation of the suspension of a penalty on probation, provides:

“The court shall revoke the suspension of a penalty on probation if the convicted person

(1) commits a criminal offence during the period of probation and, thereby, shows that the expectations upon which the suspension of the sentence had been based were not met,

(2) grossly or persistently breaches directions or persistently evades the supervision and guidance of the probation officer, thereby giving grounds for the fear that he will reoffend, or ... ”

2. The Federal Constitutional Court ’ s decision of 9 December 2004

In a decision dated 9 December 2004 (file no. 2 BvR 2314/04), the Federal Constitutional Court found that it was in the first place for the legislator to concretise the effects on procedural law of the presumption of innocence, a constitutional right rooted in the rule of law (see also Article 6 § 2 of the Convention). However, much militated in favour of interpreting Article 56f § 1 no. 1 of the Criminal Code to the effect that the revocation of the suspension of a penalty on probation because of the commission of a new offence, in order to comply with the constitutional protection of the presumption of innocence, required that, as a rule, the perpetrator had been convicted of the new offence (see the European Court of Human Right ’ s judgment of 3 October 2002 in the case of Böhmer v. Germany ).

The Federal Constitutional Court considered, however, that the revocation of the suspension of a penalty on probation because of a new offence of which the person concerned had not been convicted of did not disregard the presumption of innocence if the person concerned had made a credible confession that he had committed the new offence (the court again referred to the European Court of Human Right ’ s judgment in the case of Böhmer , cited above, to support its view).

COMPLAINT

The applicant complains under Article 6 § 2 of the Convention that the revocation of the suspension of his prison sentence on probation by the German courts violated the presumption of innocence. He submits that the domestic courts revoked the suspension of his sentence arguing that he had committed another burglary during the probation period. However, at the time of the revocation, the criminal proceedings con cerning the charges of the new burglary , which he contests, were not terminated by a final, or indeed by any judgment . He relies on the Court ’ s judgment in the case of Böhmer (cited above) to support his view.

QUESTION TO THE PARTIES

Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case?