Information Note on the Court’s case-law 36

November 2001

Böhmer v. Germany (dec.) - 37568/97

Decision 15.11.2001 [Section III]

Article 6

Article 6-2

Presumption of innocence

Revocation by court of suspension of prison sentence, on the basis of a finding of guilt in respect of a new offence, although the proceedings dealing directly with the offence were still pending: admissible

In June 1991 the applic ant was convicted by the Regional Court of receiving stolen goods and theft and was sentenced to two years’ imprisonment suspended on probation for four years. In March 1993 he was convicted by the Ahrensburg District Court of drunken driving and careless driving without a licence and given a fine. Following this conviction, the Regional Court extended his probation period to six years. In 1995 two sets of proceedings were instituted in the Hamburg District Court against the applicant, both involving fraud. In December 1995, in other proceedings, the applicant was convicted of fraud by the Kiel District Court. After the decision had become final, he lodged a request for retrial. In April 1996 the Regional Court revoked the suspension on the applicant’s priso n sentence of June 1991, relying on the fact that he had subsequently been convicted twice. The applicant lodged an appeal against this decision. In October 1996 the Court of Appeal dismissed the applicant’s appeal. The court considered that his pending re quest for retrial regarding the conviction by the Kiel District Court might result in the hearing of numerous witnesses and as the prolonged period of suspension had already expired four months from then, the court deemed that it could not wait for the out come of these proceedings. The court considered that it could not wait for the outcome of the proceedings pending before the Hamburg District Court either. Having heard the alleged victim of the case before the Hamburg District Court and another witness, i n the presence of the applicant’s counsel, the court found that it was beyond doubt that the applicant was guilty of fraud. The Federal Constitutional Court refused to entertain his subsequent complaint.

Admissible under Article 6 § 1 and § 2.

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

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