AS TO THE ADMISSIBILITY OF
Application No. 10833/84
by K.G.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 13 October 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. JÖRUNDSSON
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 17 February
1984 by K.G. against the Federal Republic of Germany and
registered on 17 February 1984 under file N° 10833/84;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen born in 1937 and living in
Munich. He is a lawyer (Rechtsanwalt) by profession.
The applicant's previous applications No. 8309/78 and
No. 8858/80 concerning the length of criminal proceedings against him
were declared inadmissible in May 1979 and July 1983, respectively.
In 1964 investigation proceedings were instituted against the
applicant and others on the suspicion of having committed bombings in
Italy in 1962 and 1963. On 29 May 1980 the applicant and some
coaccused were convicted and sentenced by the Cologne Regional Court
(Landgericht). The applicant was found guilty on two counts of
bombing and two counts of attempted bombing and he was sentenced to
three years' imprisonment. The judgment was eventually quashed by the
Federal Court of Justice (Bundesgerichtshof) on 3 February 1982 on
account of violation of procedural law. The case was sent back to the
Regional Court for a new trial.
However, on 5 October 1982 the Bonn Public Prosecutor's Office
(Staatsanwaltschaft) decided to discontinue the proceedings in
accordance with Section 153 c (3) of the Code on Criminal Procedure
(Strafprozessordnung). In view of the fact that the offences had been
committed abroad some twenty years ago, that part of the charges laid
against the defendants would have to be dropped, and that consequently
the eventual sentences would be less severe than those imposed by the
judgment of 29 May 1980, and mainly in view of the excessive length of
the proceedings a continuation of the proceedings was considered to be
contrary to public interest while the discontinuation on the other
hand was considered as redress within the meaning of Article 50 of the
Convention with regard to the violation of the right to a speedy
trial.
On 31 January 1983 the Cologne Regional Court rejected the
applicant's request for compensation under the Act on Compensation for
Prosecution Measures (Gesetz über die Entschädigung für Strafverfolgungs-
massnahmen) and for reimbursement of his necessary expenses incurred
in the criminal proceedings. The Court stated that compensation could
only be granted for equity reasons. The decision depended on an
evaluation of the case on the basis of the material and evidence
available at the moment when the proceedings were discontinued. In
the case of the aplicant and his co-defendants the result of such
evaluation was that a conviction was most likely ("mit hoher
Wahrscheinlichkeit zu erwarten"). Even taking into account the
Federal Court's decision there was nothing to show that a new trial
would lead to a substantially different result. Each claimant
therefore had had to expect a sentence exceeding the period he spent
in detention on remand. In view of this procedural risk it did not
appear equitable to grant compensation or reimbursement of expenses.
The decision was confirmed by the Cologne Court of Appeal
(Oberlandesgericht) on 6 July 1983. The appellate court confirmed the
Regional Court's finding that for equity reasons the claims made by
the applicant and the former co-defendants had to be rejected.
In this connection the Regional Court had, in the appellate
court's opinion, correctly taken into account the procedural risks of
the former defendants. All had been convicted on the basis of
extensive evidence and the trial court's appreciation of the evidence
comprised 130 pages. They had received important sentences. The
quashing of the first judgment by the Federal Court in no way implied
- neither from a procedural nor from a material point of view - that
the former defendants would have had to be acquitted. Even if the
principle of presumption of innocence forbade basing the denial of
compensation on any prognosis on the possible result of the
proceedings had they not been discontinued the procedural risk of the
applicant having possibly to face conviction in a new trial had to be
taken into consideration. Compared to this risk the discontinuance of
the proceedings constituted sufficient compensation in itself avoiding
for the defendants the stress of further prosecution. Also the
periods of detention on remand (six-and-a-half months in the
applicant's case) had not been excessive and particularly burdensome.
Denial of compensation and reimbursement of necessary expenses was in
the circumstances equitable.
(The German text of the relevant passages reads:
"Zutreffend hat die Strafkammer auf das erhebliche Prozessrisiko
für alle drei Antragsteller abgehoben. Sie alle sind nach
eingehender Beweisaufnahme (die Beweiswürdigung umfasst etwa 130
Seiten) zu hohen Freiheitsstrafen verurteilt worden. Die
Aufhebung des ersten Erkenntnisses durch den Bundesgerichtshof
lässt keineswegs einen Freispruch als naheliegend erscheinen, und
zwar weder aus prozessualen noch sachlichen Erwägungen. Selbst
wenn von der Meinung ausgegangen werden müsste, dass die
Wahrscheinlichkeit einer Verurteilung wegen der
Unschuldsvermutung oder aus anderen Erwägungen nicht
ausschlaggebend sein dürfte, wäre hier eine ausreichende
Kompensation des erheblichen Prozessrisikos und des weiteren
schwerwiegenden langen und belastenden Verfahrens durch die
Anklagerücknahme festzustellen. Es kommt hinzu, dass die zu
vergleichenden Strafverfolgungsmassnahmen nicht unangemessen
einschneidend gewesen sind (Haftzeiten). Somit haben die
Angeklagten bei der Abwägung zwischen Prozessrisiko,
Einstellungserwägungen und dem Vorteil der Verfahrensbeendigung
eine derart kompensierende Vergünstigung erfahren, dass nach den
Umständen des Falles eine Entschädigung nicht der Billigkeit
entspricht.")
The applicant then lodged a constitutional complaint (Ver-
fassungsbeschwerde) which was rejected by a group of three judges of
the Federal Constitutional Court (Bundesverfassungsgericht) on
24 August 1983 as offering no prospects of success. According to this
decision the decisions complained of did not violate constitutional
rights, in particular they were not arbitrary. The Court pointed out
that according to the appellate court's decision the refusal of
compensation and reimbursement was equitable even without considering
the mere likelihood of a conviction.
COMPLAINTS
The applicant submits that the denial of his claims and the
reasons given therefor violate Article 6 para. 2 of the Convention.
THE LAW
The applicant complains that his request to be compensated for
his detention on remand in the course of criminal proceedings which
were later discontinued, as well as his request for reimbursement of
his necessary expenses in the discontinued proceedings were rejected
by the German courts. He also complains of the reasons given in the
decisions rejecting these requests and invokes Article 6 para. 2 (Art. 6-2) of
the Convention which guarantees the principle of presumption of
innocence.
The Commission first observes that Article 6 para. 2 (Art. 6-2) does
not contain any obligation for the Contracting States to reimburse an accused's
necessary expenses in case of the proceedings against him being discontinued
nor does it contain any obligation to pay in such cases compensation for
detention on remand. The provision may, however, be violated if, without the
accused having previously been proved guilty according to law and, notably,
without his having had the opportunity of exercising his rights of defence, 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; Lutz, Englert, Nölkenbockhoff judgments of 25 August 1987, Series A no.
123, paras. 59/60, 36/37 and 36/37, respectively).
In this respect, the European Court of Human Rights found it
to be decisive first whether or not "the courts confined themselves in
substance to noting the existence of 'reasonable suspicion' that the
defendant had 'committed an offence' and second whether or not the
decision in question amounted to a penalty or a measure that can be
equated to a penalty" (see Lutz, Englert, Nölkenbockhoff judgments
previously cited, paras. 62/63, 39/40 and 39/40, respectively).
In the present case the Cologne Regional Court stated in its
decision of 31 January 1983, inter alia, that the applicant's
conviction was most likely, in the sense that there was a procedural
risk of his being convicted again if a new trial would take place. In
addition, the Court of Appeal, in its decision of 6 July 1983, found
that the Regional Court's finding about the "likelihood" of the
applicant's conviction only referred to the applicant's procedural
risk in case of a new trial and only meant that the decision of the
Federal Court of Justice to quash the first judgment in no way implied
that in a new trial the applicant would have been acquitted. The
appellate court further stated that, even if the principle of
presumption of innocence forbade making a prognosis on the possible
result of a new trial, it was still justified for equity reasons to
reject the applicant's request because the discontinuance of the
proceedings avoiding for the applicant the procedural risk of an
eventual conviction and the burden of having to stand a new trial
constituted sufficient compensation. It concluded that, in
considering the procedural risk, the reasons having motivated the
discontinuance of the proceedings and the advantage inherent for the
applicant in the termination of the proceedings, it was not equitable
in the circumstances of the case to grant compensation as requested by
the former defendants. The Federal Constitutional Court in its
decision of 24 August 1983 stated that it was not arbitrary to deny
compensation for equity reasons in view of the procedural risk avoided
by the applicant as a result of the discontinuance of the proceedings.
The German courts thereby meant to indicate, as they were
required to do for the purposes of the decision, that there were still
strong suspicions concerning the applicant. In particular the
appellate court pointed out that the reasons in question only
contained an appraisal of the applicant's procedural risk in case of a
new trial. Furthermore, the German courts, acting on an equitable
basis and having regard to the strong suspicions which seemed to them
to exist concerning the applicant, did not impose any sanction on him,
but merely refused to order that his necessary costs and expenses or
any compensation should be paid out of public funds.
Consequently, the Commission finds that the decision of the
Cologne Regional Court, as upheld by the Court of Appeal and the
Federal Constitutional Court, does not amount to a violation of the
principle of presumption of innocence as guaranteed in 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 this reason, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)