The European Commission of Human Rights sitting in private on 10 March
1986 the following members being present:
MM C.A. NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
F. ERMACORA
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs G.H. THUNE
Sir Basil HALL
Mr H.C. KRÜGER, Secretary to the Commission
Having regard to Art 25 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (art. 25);
Having regard to the application introduced on 10 June 1985 by Ismet
KAYHAN against the Federal Republic of Germany and registered on 11
June 1985 under file N° 11585/85;
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 Turkish citizen, born in 1962 and living in Akcadag
Malatya. He is represented by Messrs. Wingerter, Hohbach,
Stiefel-Bechdolf, lawyers in Heilbronn.
On 1 September 1980 the applicant arrived as a tourist in the Federal
Republic of Germany, where he stayed with relatives without a
residence permit. On 1 June 1981 the authorities noticed that he had
taken up work without a work permit. Consequently, an expulsion order
was issued against him on 16 June 1981 and on the following day an
arrest order for the purpose of the expulsion. On 22 June 1978 the
applicant lodged an appeal and applied for political asylum. On
25 June 1981 the execution of the expulsion order was suspended and
the applicant was released.
On 13 July 1981 he was lodged in a home for political refugees at
Karlsruhe and ordered not to leave the city pending his request for
asylum.
On 15 September 1981 a fine of 25 day rates (in the amount of 15 DM
each) was imposed on the applicant by the Karlsruhe District Court for
having deliberately violated the order not to leave Karlsruhe. He
was, however, acquitted of a further charge, ie theft. His appeal was
dismissed on 4 March 1982. On 18 October 1983 the Federal
Constitutional Court quashed the appellate court's decision because
the appeal had been heard in the absence of the official defence
counsel who had been appointed by the court. The case was referred
back to the Karlsruhe Court of Appeal (Oberlandesgericht).
On 27 October 1983 the applicant requested the court to appoint
Mr Wingerter as his official defence counsel. This request was refused
on 17 February 1984 and again on 12 March 1984 on the ground that the
previous appointment of another official defence counsel for the
applicant was still valid.
On 6 April 1984 the proceedings were discontinued in accordance with
Section 47 (2) of the Regulatory Offences Act (OWiG). The appellate
court stated that in view of the applicant's return to Turkey it no
longer appeared necessary to punish him for an action which
constituted only a regulatory offence. The costs of the proceedings
were imposed on the treasury except for the applicant's necessary
expenses. Reimbursement of these expenses was refused on the ground
that "according to the given findings it was shown with sufficient
probability that Section 471 N° 5 of the Aliens Act (AuslG) and
Section 35 of the Act on Proceedings in political asylum matters
(AsylVfG) respectively, had been violated (nach den getroffenen
Feststellungen ist ein Verstoß gegen § 47 Abs 1 Nr 5 AuslG zur Tatzeit
bzw gegen § 35 AsylVfG nach der gegenwärtigen Gesetzeslage mit
hinreichender Wahrscheinlichkeit dargetan).
In a letter of 27 March 1984 applicant's counsel Wingerter had
objected to the court's intention to discontinue the proceedings,
considering that the applicant, having made a request for political
asylum, was free to move in the Federal Republic and should
consequently be acquitted.
On 12 April 1984 the appellate court rejected as being without object
and unfounded a motion of challenge submitted on the applicant's
behalf on 10 April 1984.
On 26 November 1984 a group of three judges of the Federal
Constitutional Court rejected, as offering no prospects of success,
the applicant's constitutional complaint against the appellate court's
order of 6 April 1984. Insofar as the applicant had alleged a
violation of the principle of presumption of innocence it is stated in
the decision of 26 November 1984 that the appellate court's reasoning
only indicated that according to the findings of the Karlsruhe
District Court there were sufficient reasons to suspect the applicant
of having committed the offence of which he was charged. In
particular the use of the word "shown" (dargetan) made it clear that
the appellate court did not determine the charge levied against the
applicant but only pointed out that in the circumstances it had been
justified to levy a charge against him (... das Oberlandesgericht hat
gleichsam nur die Schlüssigkeit des Vorwurfs eines Verstosses ...
geprüft und bejaht). In conclusion it is pointed out that the
applicant's innocence continued to be presumed (Seine Unschuld wird
deshalb weiter vermutet). The Federal Constitutional Court's decision
was received by applicant's counsel on 12 December 1984.
COMPLAINTS
The applicant considers that under Art 2 (1) of the Fourth Protocol
(P4-2-1) he was free to visit his relatives at Schwaigern and that
consequently the proceedings instituted against him on account of this
visit violated the said provision. Furthermore he complains that the
reasons given for the refusal to reimburse his necessary expenses
violate his right under Art 6 (2) of the Convention (art. 6-2) to be
presumed innocent. He further invokes Art 6 (1) of the Convention
(art. 6-1) which, in his opinion, is violated because Mr Wingerter was
not appointed as his official defence counsel and because the
proceedings against him were discontinued without his consent
depriving him of the possibility to argue his case. Furthermore he
argues that the challenged judge should not have participated in the
appellate court's decision of 6 April 1984 as he already participated
in the earlier decision of 4 March 1982 which was quashed by the
Federal Constitutional Court.
THE LAW
1. The applicant first complains that he was wrongly being
prosecuted for having disregarded an order not to leave Karlsruhe.
It is true that Art 2 (1) of the Fourth Protocol to the Convention
(P4-2-1) secures to everyone lawfully within the territory of a State
the right to liberty of movement and freedom to choose his residence.
However the applicant lived and worked as a foreigner in the Federal
Republic of Germany without having obtained a residence permit and a
work permit. Consequently an expulsion order was given against him.
This order was not affected by the applicant's subsequent request for
political asylum. Only its execution was stayed. In these
circumstances it cannot be found that the applicant was "lawfully"
within the territory of the Federal Republic.
An examination by the Commission of this complaint as it has been
submitted does not therefore disclose any appearance of a violation of
the rights and freedoms set out in the Convention and in particular in
the above Article (P4-2-1).
It follows that this part of the application is manifestly ill-founded
within the meaning of Art 27 (2) of the Convention (art. 27-2).
2. The applicant has further complained that in the regulatory
offence proceedings against him his right under Art 6 (1) of the
Convention (art. 6-1) to a fair trial had been violated as well as his
right to be presumed innocent (Art 6 (2)) (art. 6-2) as the reasons
given for the refusal to reimburse his necessary expenses implied his
guilt.
The Commission recalls that it repeatedly expressed the opinion that
Art 6 (2) (art. 6-2) cannot be understood as giving the accused an
unconditional right to the continuation of the proceedings against him
until the final proof or disproof of the charge (Adolf v Austria,
Comm Report, 8.10.80, para 56; see also Dec N° 4550/70, Soltikow
v Federal Republic of Germany, Coll 38, 123 (127)).
Consequently a decision discontinuing criminal proceedings on the
ground of procedural economy, or for other reasons does not in
principle violate any provision of the Convention if it simply implies
that reasons to suspect the person concerned of having committed an
offence continue to exist while the prosecuting authorities are
prevented from prosecuting or renounce to prosecute (Adolf Report,
para 59).
It may even be accepted that a decision discontinuing criminal
proceedings contains a statement indicating that although some
suspicion still exists there are not sufficient reasons to continue
the trial. It has to be noted that the Convention itself justifies
procedural measures on the basis of suspicion without granting an
unlimited right to be either convicted or acquitted (see Arts 5 (1)(c)
and 6 (3)(a)) (art. 5-1-c, art. 6-3-a). Consequently it does not, in
principle, violate the right to a fair trial if proceedings are
discontinued without a hearing on the merits of the case. As the
German courts did not determine the charge laid against the applicant,
it does not affect the applicant's right to a fair trial that his
motion of challenge was rejected as well as his request to appoint
another official defence counsel.
As regards the principle of presumption of innocence, it is mainly a
matter of degree whether a formulation in a decision discontinuing
criminal proceedings violates Art 6 (2) (art. 6-2). Unlike in the
cases Englert, Lutz and Nölkenbockhoff (Comm Reports of 9.10.85 and
18.10.85) which are pending before the European Court of Human Rights,
the reasons complained of in the present case do not contain a
statement that the applicant's "conviction" was "most likely" or "most
probable". The decision in question does not contain any prognosis on
the possible result of the proceedings had they not been discontinued
but is limited to the statement that in the light of the evidence so
far obtained a violation of the Aliens Act was shown with sufficient
probability. The Commission notes that according to the Federal
Constitutional Court the use of the term "shown" ("dargetan") in the
decision complained of makes it sufficiently clear that the appellate
court's reasoning does not express an appraisal of guilt but only an
appreciation of the validity of the charge laid against the applicant.
The Federal Constitutional Court expressly points out that "the
applicant's innocence continued to be presumed".
In these circumstances the Commission considers that read in the light
of the decision of the Federal Constitutional Court the appellate
court's order of 6 April 1984 does not imply a finding of guilt
(cf Eur Court HR, Adolf case, judgment of 26.3.82, Series A, Vol 49,
para 40). The complaint as it has been submitted does not therefore
disclose any appearance of a violation of the rights and freedoms set
out in the Convention and in particular in Art 6 (1) and (2)
(art. 6-1, art. 6-2).
It follows that this part of the application is likewise manifestly
ill-founded within the meaning of Art 27 (2) of the Convention
(art. 27-2).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)