TO THE ADMISSIBILITY OF
Application No. 17664/91
by E.C.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 9 October 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission,
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 November 1990
by E.C. against the Federal Republic of Germany and registered
on 14 January 1991 under file No. 17664/91;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows:
The applicant, born in 1950, is a German national and resident
at Nidderau. Before the Commission she is represented by
Mr. G. Hintze, a lawyer practising in Frankfurt.
On 9 June 1987 the Hanau Regional Court (Landgericht)
convicted the applicant of tax evasion and, taking a previous
conviction into account, sentenced her to one year and six months'
imprisonment. The execution of the sentence was suspended on
probation (Strafaussetzung zur Bewährung).
On 30 March 1990 the 5th Economic Crimes Chamber (Wirt-
schaftsstrafkammer) at the Hanau Regional Court convicted the
applicant of having, in her position as manager of a firm, repeatedly
failed to pay salaries in due time, of having failed to request the
opening of bankruptcy proceedings for the above insolvent firm, and of
having committed fraud on several counts.
On 4 April 1990 the same Chamber revoked the suspension of
9 June 1987.
The Regional Court, referring to S. 56 (f) para. 1 (1) of the
Penal Code (Strafgesetzbuch), found that by committing further
criminal offences the applicant had shown that she did not fulfil the
expectations on which the suspension was based ("Die Strafaussetzung
war zu widerrufen, ..., weil die Verurteilte in der Bewährungszeit
Straftaten begangen hat und dadurch gezeigt hat, daß sich die der
Strafaussetzung zugrundeliegende Erwartung nicht erfüllt hat").
The Regional Court considered that, in the course of her
period of probation, the applicant, in her position as manager of a
firm, had repeatedly failed to pay salaries in due time, had failed to
request the opening of bankruptcy proceedings for the above insolvent
firm, and had committed fraud on several counts. As regards the
details of these criminal offences, the Regional Court referred to its
judgment of 30 March 1990.
It noted that the applicant had lodged an appeal against her
conviction which was thus not final. However, it considered that it
could already revoke the suspension in view of the aforesaid criminal
offences on the ground that, as followed from its judgment of 30 March
1990, it was convinced of the applicant's guilt after having conducted
the trial against her in the same composition of judges ("Auch wenn
die Verurteilung der Angeklagten noch nicht rechtskräftig ist, weil
diese ein Rechtsmittel eingelegt hat, konnte die erkannte Straf-
aussetzung zur Bewährung bereits wegen der vorgenannten Straftaten
widerrufen werden ..., weil die Kammer, wie sich aus dem Urteil vom
30.03.1990 ergibt, nach der mit der gleichen Berufsrichterbesetzung
durchgeführten Hauptverhandlung insoweit von der Schuld der Verur-
teilten überzeugt ist."). Moreover, the applicant had admitted her
guilt as regards two of the offences.
S. 56 (f) para. 1 (1) provides that the court supervising the
execution of sentences (Vollstreckungsgericht) revokes the suspension
of a sentence if the convicted person commits another criminal offence
during the period of probation and thereby shows that he did not fulfil
the expectations upon which the suspension of the sentence was based
("Das Gericht widerruft die Strafaussetzung, wenn der Verurteilte in
der Bewährungszeit eine neue Straftat begeht und dadurch zeigt, daß
die Erwartung, die der Strafaussetzung zugrundelag, sich nicht erfüllt
hat, ...").
On 14 August 1990 the Frankfurt Court of Appeal (Oberlandes-
gericht) dismissed the applicant's appeal (sofortige Beschwerde). The
Court of Appeal considered that the suspension of a sentence could be
revoked in view of a new criminal offence even before final conviction
in this respect. However, it was necessary that the court, on the
basis of facts beyond doubt, was and could be convinced that the
convicted person had committed a new criminal offence. Having regard
to these considerations, the establishment of facts relating to the
applicant's new criminal offences in the judgment of the Hanau
Regional Court of March 1990, which was based on the applicant's
admission of guilt, justified the conviction that she had committed a
new criminal offence. Having regard to the separate sentences of one
year and six months' imprisonment, which were imposed in this respect,
less strict measures could not be considered.
On 15 October 1990 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde) on the ground that it offered no
prospect of success. The Constitutional Court found in particular
that the impugned court decisions did not violate the presumption of
innocence. In the proceedings concerning a decision under S. 56 (f)
para. 1 (1) of the Penal Code, the presumption of innocence was not
affected under the prevailing legislation, if the court concerned
referred to new preliminary investigations, established new criminal
behaviour and drew particular consequences for its decision to revoke
the suspension of a sentence. In the present case, the Regional Court
and the Court of Appeal had based their decisions upon charges against
the applicant, which had resulted in the applicant's new conviction of
economic crimes after trial. In the trial upon which this judgment,
not yet final, was based the applicant had partly admitted her guilt;
in this respect separate sentences of one year and six months'
imprisonment had been imposed. In these circumstances, the decisions
to revoke the suspension of her previous sentence were not
objectionable under constitutional law.
COMPLAINTS
The applicant complains under Article 6 para. 2 of the
Convention that the German court decisions revoking the suspension of
her sentence violated the presumption of innocence. She submits in
particular that at the time of revocation the judgment in the new
criminal proceedings was not yet final.
THE LAW
The applicant complains under Article 6 para. 2 (Art. 6-2) of
the Convention that the German court decisions to revoke the
suspension of her previous sentence before final determination of the
new charges against her violated the presumption of innocence.
Article 6 para. 2 (Art. 6-2) guarantees that "everyone charged
with a criminal offence shall be presumed innocent until proved
guilty according to law".
The Commission recalls that the scope of Article 6 para. 2
(Art. 6-2) is not limited to a procedural guarantee in proceedings
concerning the determination of criminal charges. The presumption of
innocence will be violated if, without the accused having previously
been proved guilty according to law, a judicial decision concerning
him reflects an opinion that he is guilty (Eur. Court H.R., Minelli
judgment of 25 March 1983, Series A no. 62, p. 18, para. 37; mutatis
mutandis, Eur. Court H.R., Lutz/Englert/Nölkenbockhoff judgments of
25 August 1987, Series A no. 123, p. 25, para. 60, pp. 54/55, para. 37
and p. 79, para. 37, respectively; cf. also Eur. Comm. H.R., No.
7986/77, Dec. 3.10.1978, D.R. 13 p. 73). The Commission therefore
finds that the presumption of innocence may, in principle, be invoked
as regards the court decisions concerned in the present case, which
were taken prior to final determination of the new charges against
the applicant by the competent courts.
However, the Commission observes that the sentence of
imprisonment was lawfully imposed on the applicant after her conviction
in 1987. Following the Hanau Regional Court's decision to revoke the
suspension of this sentence, the applicant's detention is lawful and
in accordance with Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.
It is true that the applicant's conviction in the new
criminal proceedings had not yet become final at that date. However,
the Commission finds that the presumption of innocence does not
require a final judgment before the facts established in a full trial
can be taken into account for the revocation of the suspension.
The impugned decisions, therefore, do not as such violate
Article 6 para. 2 (Art. 6-2) of the Convention.
As regards the question whether the supporting reasoning in
the impugned court decisions amounts in substance to a determination of
the applicant's guilt contrary to Article 6 para. 2 (Art. 6-2) of the
Convention, the Commission attaches particular weight to the fact
that the applicant was, at first instance, convicted of the offences
concerned after trial before the same Chamber at the Hanau Regional
Court where she had the opportunity to exercise her defence rights.
The Commission notes that the 5th Economic Crimes Chamber at
the Hanau Regional Court, in its decision of 4 April 1990, relied on
its judgment of 30 March 1990 convicting the applicant of the criminal
offences in question after having conducted a trial in the same
composition of judges. Thereby it found that she had committed new
criminal offences, and thus failed to fulfil the expectations on which
the decision to suspend her previous sentence had been based. This
reasoning was confirmed by the Frankfurt Court of Appeal. The Federal
Constitutional Court considered in particular that the decisions of
the Regional Court and the Court of Appeal had been based upon charges
against the applicant, which had resulted in the applicant's new
conviction of economic crimes after trial, and that in the trial upon
which this judgment was based she had partly admitted her guilt.
In these circumstances, the impugned decisions revoking the
suspension of the applicant's previous sentence do not disclose any
appearance of a violation of the presumption of innocence as
guaranteed under Article 6 para. 2 (Art. 6-2) of the Convention.
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy