Information Note on the Court’s case-law 190

November 2015

El Kaada v. Germany - 2130/10

Judgment 12.11.2015 [Section V]

Article 6

Article 6-2

Presumption of innocence

Revocation of order suspending prison sentence owing to revoking court’s “firm conviction” that defendant had committed further offence: violation

Facts – Section 26 § 1 (1) of the Juvenile Courts Act provides that an order suspending a custodial sentence shall be revoked if a young offender commits a (further) criminal offence during the period of probation.

The applicant was a juvenile. In 2008 he was convicted of various offences and given a two-year prison sentence, which was suspended. While on release on licence in respect of those offences he was arrested in connection with a further offence of burglary. Under questioning and in the absence of a lawyer he initially admitted the offence. However, he retracted his confession a few days later. The order suspending his original two-year sentence was subsequently revoked by a district court under section 26 § 1 (1) of the Juvenile Courts Act on the grounds that he had committed a further offence, as attested by his confession to the burglary offen ce. The applicant appealed, arguing that he had retracted his confession, but his appeal was dismissed by a regional court.

In the Convention proceedings, the applicant complained that the revocation of the order suspending his prison sentence had violated his right to be presumed innocent, in breach of Article 6 § 2 of the Convention.

Law – Article 6 § 2: In upholding the district court’s decision to revoke the order suspending the applicant’s prison sentence, the regional court stated that the applicant h ad “committed another offence during the probation period” and that, in view of his confession to the burglary charge, it was of the “firm conviction” that he had again committed an offence. Those statements confirmed without any reservations or reference to a state of suspicion the district court’s finding for the purposes of section 26 § 1 (1) of the Juvenile Courts Act that the applicant had committed a new offence. They therefore amounted to a clear declaration that the applicant was guilty of burglary before he had been proved guilty by the competent trial court in a final judgment in accordance with the law. The reasoning in the domestic courts’ decisions revoking the suspension of the applicant’s sentence had thus breached the applicant’s right to be presumed innocent.

Conclusion : violation (unanimously).

Article 41: EUR 7,500 in respect of non-pecuniary damage.

(See also, for a case concerning similar legislation applicable to adult offenders, Böhmer v. Germany , 37568/97 , 3 October 2002)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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