Information Note on the Court’s case-law 214
January 2018
Bikas v. Germany - 76607/13
Judgment 25.1.2018 [Section V]
Article 6
Article 6-2
Presumption of innocence
Offences for which the criminal proceedings had been discontinued taken into account in sentencing process: no violation
Facts – The applicant had been convicted of four counts of coercion to engage in sexual activity and sentenced to six years’ imprisonment. Before the European Court he alleged that the presumption of innocence had been violated as the court, when setting his sentence, had taken into consideration further offences of which he had not been convicted.
Law – Article 6 § 2
(a) Admissibility: The applicant had initially been “charged”, for the purposes of Article 6 § 2, with committing a large number of offences, including at least fifty further counts of coercion to engage in sexual activity, given that he had been indicted and tried in the proceedings before the Regional Court for those offences. In a decision taken on the last day of the trial, the Regional Court had provisionally discontinued the criminal proceedings for those offences under Article 154 of the Code of Criminal Procedure. Under that provision, the proceedings could be provisionally discontinued as the penalty which might have resulted from prosecution for those fifty offences was not considered as being particularly significant in addition to the penalty which the applicant could expect for the remaining four counts of coercion to engage in sexual activity. Under German case-law that discontinuation did not exclude, however, their consideration as an aggravating element in the sentencing process for a conviction if their existence had been sufficiently established. The applicant had been warned that those counts of coercion could be taken into account at the sentencing stage for the remaining four counts. The Regional Court did so in its sentencing procedure. In its judgment, the Regional Court amply evaluated the evidence concerning the fifty further offences and repeatedly stated that it was convinced that they had taken place.
In those circumstances, at the time when the Regional Court took into account the fifty further incidents of coercion to engage in sexual activity, the applicant still had to be considered as notified of an allegation that he had committed further counts of coercion to engage in sexual activity and thus as being “charged” with, inter alia, the fifty further offences at issue. Article 6 § 2, which applied first and foremost in the context of pending criminal proceedings, was therefore applicable in the proceedings at issue.
(b) Merits: In defining the requirements for compliance with the presumption of innocence the Court had drawn a distinction between cases where a final acquittal judgment had been handed down and those where criminal proceedings had been discontinued. In cases concerning statements made after an acquittal had become final the Court had considered that the voicing of suspicions regarding an accused’s innocence was no longer admissible. In contrast, the presumption of innocence would only be violated in cases concerning statements after the discontinuation of criminal proceedings if, without the accused’s having previously been proved guilty according to law and, in particular, without his having had an opportunity to exercise the rights of the defence, a judicial decision concerning him reflected an opinion that he was guilty. A judicial decision might reflect that opinion even in the absence of any formal finding of guilt; it sufficed that there was some reasoning suggesting that the court regarded the accused as guilty.
In cases concerning compliance with the presumption of innocence, the language used by the decision maker would be of critical importance in assessing the compatibility of the decision and its reasoning with Article 6 § 2. Regard had to be had, in that respect, to the nature and context of the particular proceedings in which the impugned statements had been made. The provisional discontinuation of the proceedings in respect of, in particular, the fifty further events had taken place on the last day of the trial, following seventeen days of taking of evidence, and on the same day as that on which the judgment had been delivered. All the applicant’s defence rights had been observed during the trial. At the moment of the provisional discontinuation of the proceedings, for reasons of procedural economy, the applicant had been warned that the said events might be used during sentencing.
The judgment focusing on four events and taking into account, when measuring out the sentence, fifty further offences described the facts established during the entire time span during which the alleged offences had taken place. The Regional Court stated several times in the judgment that it was convinced that the other fifty events had taken place, but that it was not possible to provide specificity as regards the exact place and time of all these events. The Regional Court thus rendered a judgment in which it explicitly convicted the accused of four counts of coercion to engage in sexual activity. While the four incidents were explicitly mentioned in the operative part of the judgment, the other fifty incidents were described in the reasoning of the judgment and were taken into account as an aggravating element in determining the penalty.
The Regional Court could accordingly be said to have applied, pursuant to domestic law, high, but different standards of proof for the determination of the applicant’s guilt in respect of those incidents. While for the first four incidents the court had all the elements to define the crimes as offences in the procedural sense, for fifty further incidents in respect of which it discontinued the proceedings it was convinced that the accused was guilty, but could not indicate the exact time and place at which the incidents took place owing to the victim’s speech disorder. In that context the Court took into account that the other fifty incidents were, as stated by the Regional Court, indeed similar and closely linked: they all related to the same type of offences, i.e. coercion to engage in sexual activity; they had been committed on the same victim within a certain period, with precisely the same intention of sexual abuse. That supported the finding that in such a case, against the background that the occurrence of the acts had been proven beyond reasonable doubt, it was not necessary to determine the exact time and place of every committed act. Thereby, the courts had fulfilled the requirements which had been established in the domestic courts’ case-law regarding the assessment of evidence in accordance with the particularities of serial offences in the field of sexual abuse.
The applicant had been found guilty, in substance, of the fifty further offences, to which a different standard of proof had been applied. That standard of proof was sufficient, under domestic law, for taking those offences into account in the sentencing process, but not for formally convicting the applicant thereof. The standard of proof necessary for finding a person guilty of an offence was for the national authorities to determine. The Court therefore considered that the applicant in the present case was also proved guilty, in accordance with the standards which were and could be fixed by domestic law, of the fifty further incidents in question and that the presumption of innocence was therefore rebutted.
Finally, the Court took into account the States’ positive obligation under Articles 3 and 8, in particular with respect to sexual offences, to safeguard the individual’s physical integrity. Further, it does not overlook that the German courts’ case-law authorising the domestic courts to take into account, in the sentencing process, further acts, was both transparent and served the useful purpose of procedural economy.
Conclusion: no violation (unanimously).
(Allen v. the United Kingdom [GC], 25424/09, 12 July 2013, Information Note 165; Vulakh and Others v. Russia, 33468/03, 10 January 2012, Information Note 148)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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