AS TO THE ADMISSIBILITY OF
Application No. 12380/86
by Dieter Otto HOUSWITSCHKA
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 5 October 1988 , the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy 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 18 June 1986
by Dieter Otto Houswitschka against the Federal Republic of Germany
and registered on 2 September 1986 under file No. 12380/86;
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 facts of the case, as they have been submitted by the
applicant, may be summarised as follows:
The applicant, born in 1951, is a German national and resident
in Karlsruhe. He is a journalist by profession. When lodging his
application he was detained in Bruchsal prison.
His previous application, No. 9859/82 concerning criminal
proceedings against him in 1981, was declared inadmissible by the
Commission on 16 March 1984.
The present application concerns two separate sets of
proceedings.
I.
On 29 November 1984 the Karlsruhe Regional Court (Land-
gericht), supervising the execution of sentences (Vollstreckungs-
gericht), suspended (Strafausetzung zur Bewährung) the remainder of a
sentence, which had been imposed on the applicant by the Stuttgart
Regional Court in 1981.
On 16 December 1985 the Karlsruhe District Court convicted
the applicant inter alia of offences under the Weapons Act (Waffen-
gesetz), forgery of documents, driving without a licence and sentenced
him to two years and three months' imprisonment.
On 21 March 1986 the Karlsruhe Regional Court, upon the
applicant's appeal (Berufung), reduced the sentence to one year and
six months' imprisonment. The Court found in particular that the
applicant had acquired a revolver and had it loaded in his possession
at the time of his arrest. The applicant did not deny these facts.
He stated, however, he had thought that he could possess and carry
such a weapon without official permission. He further stated that he
had been almost sure that it was unlawful to carry a loaded revolver.
However, he had only considered this to be a "regulatory offence"
(Ordnungswidrigkeit).
The applicant lodged an appeal on points of law (Revision).
On 2 April 1986, pending the proceedings concerning the appeal
on points of law, the Stuttgart Public Prosecutor's Office (Staatsan-
waltschaft) requested the Karlsruhe Regional Court, supervising the
execution of sentences, to revoke the suspension of the previous
sentence. The Court requested the applicant to submit his
observations within four weeks, and his request for extension of the
time-limit was not granted.
On 6 May 1986 the Karlsruhe Regional Court revoked the
suspension of 29 November 1984. The Court referred to the District
Court's judgments of 16 December 1985 and in particular to the Regional
Court's judgment of 21 March 1986. It considered the statement of
facts in the latter judgment and found that the applicant had again
committed a serious offence under the Weapons Act ("...steht nach dem
geschilderten Sachverhalt zur Überzeugung der Kammer fest, daß [der
Beschwerdeführer] erneut in erheblicher Weise gegen das Waffengesetz
verstoßen hat."). The Court concluded that, by the fact that he
committed another offence only a few months after the suspension of
his sentence, the applicant had shown that he did not fulfil the
expectations on which the suspension of his sentence was based ("...
der Verurteilte [wurde] nur wenige Monate nach seiner bedingten
Entlassung aus der Strafhaft erneut straffällig ... und [hat] dadurch
gezeigt ..., daß die Erwartung, die der Strafaussetzung zugrunde lag,
sich nicht erfüllt hat.").
In this respect, the Court referred in particular to S. 56 (f)
para. 1(1) of the Penal Code (Strafgesetzbuch) which provides that the
court supervising the execution of sentences 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 Straftat begeht und dadurch
zeigt, daß die Erwartung, die der Strafaussetzung zugrunde lag, sich
nicht erfüllt hat, ...").
On 11 June 1986 the Karlsruhe Court of Appeal (Oberlandes-
gericht) dismissed the applicant's appeal (sofortige Beschwerde). The
Court of Appeal confirmed the reasoning in the Regional Court's
decision of 6 May 1986.
On 24 July 1986 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde). The Constitutional Court found in
particular that the courts supervising the execution of sentences were
not required under constitutional law to await the outcome of the
proceedings on the applicant's appeal on points of law before revoking
the suspension of the remainder of his previous sentence.
The applicant's appeal on points of law against his new
conviction and sentence apparently remained unsucessful.
II.
On 28 April 1986 the Karlsruhe Regional Court decided that
certain security measures should be taken against the applicant being
detained on remand, inter alia that his meals should be passed into
his cell through the hatch. His appeal (Beschwerde) was dismissed by
the Karlsruhe Court of Appeal on 13 May 1986.
On 8 August 1986 the Federal Constitutional Court, upon the
applicant's constitutional complaint, ordered an advance payment of
court fees of DM 30. On 21 November 1986 the Federal Constitutional
Court refused to admit his constitutional complaint on the ground that
he had not paid the advance fee under S. 34 para. 6 of the Federal
Constitutional Court Act (Bundesverfassungsgerichtsgesetz).
COMPLAINTS
1. The applicant complains under Article 6 para. 2 of the
Convention that the German court decision revoking the suspension of
his sentence violated the presumption of innocence. He considers
that pending the proceedings concerning his appeal on points of law
the Karlsruhe Regional Court, supervising the execution of sentences,
was not entitled to come to a finding of guilt.
2. Further, the applicant appears to complain about the court
decision of 28 April 1986 as regards his meals in prison. He also
submits that he had informed the Constitutional Court that he did not
have any financial means to pay the advance fee. He does not invoke
any provisions of the Convention in this respect.
THE LAW
1. The applicant complains under Article 6 para. 2 (Art. 6-2) of
the Convention that the German court decision to revoke the suspension
of the remainder of his previous sentence contains an appraisal of his
guilt although he had not yet been finally convicted by the competent
court.
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 Commission and
the Court have found that 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, p. 54 - 55 para. 37 and p. 79 para.
37, respectively; cf. also Eur. Comm. H.R., No. 7986/778, 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 decision concerned in the present case, which was taken pending
the proceedings concerning the applicant's appeal on points of law.
However, the Commission observes that the sentence to
imprisonment was lawfully imposed on the applicant after his
conviction in 1981 and, following the decision to cancel the
suspension of the remainder of the sentence, the applicant is lawfully
detained in accordance with Article 5 para. 1 (a) (Art. 5-1-a) of the
Convention. The impugned decision, therefore, does not as such violate
Article 6 para. 2 (Art. 6-2) of the Convention.
The question next to be determined is whether or not the
supporting reasoning 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, in this respect, attaches particular weight to
the fact that, in the main proceedings concerning the new charges, the
Karlsruhe Regional Court, dismissing his appeal, found that the
applicant had admitted possession of a loaded revolver without licence
although he had assumed that this act constituted only a "regulatory
offence".
The Commission further notes that the Karlsruhe Regional
Court, supervising the execution of sentences, referred to the
judgments given in the new criminal proceedings against the applicant.
Considering the facts established, in particular, in the Regional
Court's judgment of 21 March 1986, it found that the applicant had
again committed an offence under the Weapons Act. This reasoning was
confirmed by the Karlsruhe Court of Appeal. The Federal Constitutional
Court considered in particular that the court supervising the
execution of sentences was not required to await the determination of
the applicant's appeal on points of law.
The Commission finds that these statements must be read as a
whole and in their proper context (cf. Eur. Court H.R., Adolf judgment
of 26 March 1982, Series A no. 49, p. 18 para. 40; Minelli judgment,
op. cit., p. 18 para. 40).
It is true that the Regional Court, in its decision of
6 May 1986, concluded that the applicant had committed another
criminal offence. This reasoning was confirmed by the Court of Appeal
and the Federal Constitutional Court.
However, the Regional Court relied on the judgments of the
competent courts in the new criminal proceedings against the
applicant. The Court, considering the reasoning given in these
judgments and, in particular, the applicant's statements as regards
the charges under the Weapons Act, as set out in the Karlsruhe
Regional Court's judgment of 21 March 1986, adopted the finding that
he had committed another criminal offence.
The Commission concludes that, in the particular circumstances
of the present case, the decision revoking the suspension of the
applicant's previous sentence does 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 this part of the application must be rejected
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. As regards the applicant's further complaints concerning the
decision of 28 April 1986 relating to his meals in prison and the
subsequent court proceedings, the Commission finds that it is not
required to decide whether or not the facts alleged by the applicant
disclose any appearance of a violation of the Convention as, under
Article 26 (Art. 26) of the Convention, it may only deal with a matter
after all domestic remedies have been exhausted according to the
generally recognised rules of international law.
The Commission recalls its constant jurisprudence according to
which there is no exhaustion of domestic remedies where a domestic
appeal is not admitted because of a procedural mistake (No. 6878/75,
Dec. 6.10.76, D.R. 6 p. 79). In the present case, the Federal
Constitutional Court refused to admit the applicant's constitutional
complaint under S. 34 para. 6 of the Federal Constitutional Court Act
on the ground that he had failed to pay the advance fee required. He
has not, therefore, exhausted the remedies available to him under
German law and has thus not complied with the requirements under
Article 26 (Art. 26) of the Convention as to the exhaustion of domestic
remedies.
It follows that this part of the application must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C. A. NØRGAARD)