AS TO THE ADMISSIBILITY OF
Application No. 12669/87
by R.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 11 October 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
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 7 December 1986
by R. against the Federal Republic of Germany and registered on 26
January 1987 under file No. 12669/87;
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, which do not appear to be in dispute
between the parties, may be summarised as follows.
The applicant, born in 1957, is a German national. When
lodging his application he was detained at Kiel Prison. Before the
Commission he is represented by Mr. G.-M. Achterberg, a lawyer at
Neumünster.
On 24 October 1985 the Osnabrück Regional Court (Landgericht),
supervising the execution of sentences (Vollstreckungsgericht),
suspended (Strafaussetzung zur Bewährung) the remainder of two
sentences in two separate decisions. These sentences had been imposed
on the applicant by the Göttingen Regional Court in 1981 and by the
Freiburg Regional Court in 1983.
In January 1986 information was laid against the applicant on
the suspicion of fraud. The applicant was arrested and, upon a
warrant of arrest of the Neumünster District Court (Amtsgericht),
taken into detention on remand on 30 January 1986. During his
examination on that day by the police, he confessed in detail.
By letter of 12 February 1986 the applicant informed the Kiel
Public Prosecutor's Office (Staatsanwaltschaft) about five further
counts of fraud and requested that the Göttingen and Freiburg Public
Prosecutor's Offices be informed with a view to starting proceedings
to revoke the suspension of his earlier sentences. On 18 February
1986 the applicant requested the Osnabrück Regional Court to revoke -
as soon as possible - the suspension of his previous sentences
according to S. 56(f) para. 1 (1) of the German Penal Code
(Strafgesetzbuch). He added that this letter should be considered as
his observations upon the envisaged decision to revoke the suspension,
and that he regretted "not to have succeeded again".
S. 56(f) para. 1 (1) of the Penal Code 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 12 March and 3 April 1986 the Osnabrück Regional Court
revoked the suspensions of 24 October 1985. The Court stated first
that the applicant was strongly suspected of having committed a
criminal offence. The Court referred, in this respect, to the warrant
of arrest issued on 30 January 1986 and recapitulated its factual
findings. Furthermore it stated that the applicant had admitted that
he had committed the offence and requested that the suspensions be
revoked. The Court concluded that by committing another criminal
offence during the period of suspension the applicant had shown that
he did not fulfil the expectations on which the decisions to suspend
his sentences were based. ("Der Verurteilte hat dadurch, dass er
während einer laufenden Bewährungszeit erneut straffällig geworden
ist, 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.
On 12 and 28 May 1986, respectively, the Oldenburg Court of
Appeal (Oberlandesgericht) dismissed the applicant's appeals
(sofortige Beschwerden) against the decisions of 12 March and
3 April 1986. In its decision of 12 May 1986 the Court noted in
particular that the applicant had admitted that he had again committed
an offence. It considered that, having regard to his relapse into crime
("erneutes Versagen") two months after the suspension of his sentence,
a prolongation of the period of suspension instead of the revokation
could not be considered.
On 27 November 1986 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde) against both sets of decisions on
the ground that it offered no prospect of success.
The Court found in particular that the presumption of
innocence derived from the principle of the rule of law was not
violated. It considered that by virtue of this principle no measures
amounting to a penalty may be taken against a defendant without his
guilt having been established according to law. However, not every
finding of guilt would contravene the principle of the rule of law.
According to constant jurisprudence S. 56(f) para. 1 (1) of the Penal
Code did not require that the defendant had already been convicted,
but the court supervising the execution of sentences, upon the basis
of its own assessment, must be convinced that he committed the offence
in question. This jurisprudence could not be objected to from a
constitutional point of view. The revocation of a suspension
constituted the consequence of the positive decisions to suspend the
sentence. It deprived the defendant of an advantage which was based
on a prognosis as to his future conduct and, in any event, subject to
certain insecurities. The court supervising the execution of sentences
could not be prevented from revoking a suspension in circumstances
which would have been a reason for it not to suspend the sentence at
the time of its initial decision.
In the new criminal proceedings the indictment was preferred
on 27 June 1986. On 27 November 1986 the Kiel Regional Court ordered
a medical examination of the applicant as to his criminal
responsibility.
On 27 February 1987 the Kiel Regional Court convicted the
applicant of thirty counts of fraud and sentenced him to four years'
imprisonment. The Court relied on the applicant's confession as well
as on the medical expert opinion according to which the applicant was
not suffering from a mental illness, although it could not be excluded
that due to the weakness of his character and the neurotic development
of his life his criminal responsibility was considerably limited.
The applicant's appeal on points of law (Revision) was
dismissed by the Federal Court of Justice (Bundesgerichtshof) on
3 August 1987.
COMPLAINTS
The applicant complains under Article 6 paras. 2 and 3 (b),
(c) and (d) of the Convention that the German court decisions revoking
the suspensions of his sentences violated the presumption of
innocence. He considers that the courts, on the evidence before them,
could not be convinced of the applicant's guilt as required under
S. 56(f) of the Penal Code. The revocation of a suspension was not
only a provisional measure but in fact amounted to a penalty.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 7 December 1986 and
registered on 6 January 1987.
On 9 December 1987 the Commission decided in accordance with
Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the
application to the respondent Government and to invite them to present
before 11 March 1987 their observations in writing on the
admissibility and merits of the application.
The Government's observations were submitted on 15 March 1988
and received on 18 March 1988. The applicant's reply of 9 May 1988
was received on 16 May 1988.
SUBMISSIONS OF THE PARTIES
A. The respondent Government&S
The Government contend that the application is incompatible
ratione personae with the provisions of the Convention on the ground
that the applicant had admitted the fraud concerned and expressly
requested that the suspension of his previous sentences be revoked.
There was nothing to indicate that his confession was not serious or
false; in particular, it did not follow from the medical expert
opinion that his confession was unreliable. According to the
principle of "volenti non fit iniuria" the applicant cannot claim that
the court decisions of 24 October 1985 amount to a violation of his
rights under the Convention.
Moreover, the Government submit that, having regard to the
applicant's conviction on 27 February 1987 and his unsuccessful appeal
on points of law, the impugned court decisions would have, in any
event, been taken after conclusion of these proceedings. The earlier
taking of the decisions did not prejudice the applicant.
Furthermore, the Government submit that the application is
incompatible ratione materiae with the provisions of the Convention.
They refer to the Convention organs' case-law (Eur. Court H.R., Engel
and others judgment of 8 June 1976, Series A No. 22, para. 90; Eur.
Comm. H.R., No. 5620/72, Dec. 18.7.74; No. 7058/76, Dec. 12.7.76)
according to which Article 6 para. 2 of the Convention does not apply
to proceedings concerning only the kind or level of punishment. The
Government consider that this also applies in the present case. When
deciding upon whether or not to revoke the suspension of a sentence,
the competent national court also has to consider all factors relating
to the individual's personality.
Moreover, the Government contend that the application is in
any way manifestly ill-founded on the ground that the impugned court
decisions of the Osnabrück Regional Court dated 12 March and 3 April
1986 and of the Oldenburg Court of Appeal dated 12 and 28 May 1986
comply with the principles laid down by the Strasbourg organs as
regards the presumption of innocence (Eur. Court H.R., Minelli
judgment of 25 March 1983, Series A No. 62, para. 37; Eur. Comm. H.R.,
No. 7986/77, Dec. 3.10.78, D.R. 13 p. 73; No. 9212/80, Dec. 7.12.81).
The Government find that Article 6 para. 2 of the Convention
does not require an oral hearing. Rather, it is the task of the
domestic legislator to lay down the more specific rules of criminal
procedure. The Government conclude that S. 56 (f) para. 1 (1) of the
German Code of Criminal Procedure, as applied in the present case, is
in conformity with the Convention.
Furthermore they submit that both the Osnabrück Regional Court
and the Oldenburg Court of Appeal found that the applicant had
committed another criminal offence during his period of probation.
The Courts relied, in this respect, on the applicant's confession and
had no reason to doubt his criminal responsibility. The Courts
concluded, with legal effect only for the proceedings on the issue
whether or not to revoke the suspension of a sentence, that the
presumption of innocence under Article 6 para. 2 of the Convention was
refuted; and, to that extent, the applicant was proved guilty
according to law in judicial proceedings (justizförmiges Verfahren),
in which he had the opportunity to exercise the rights of the defence.
The Government also refer to the Commission's decision of
6 May 1985 on the admissibility of Application No. 11226/84, according
to which the decision to revoke the suspension of a sentence can be
based on a suspicion that the person concerned committed another
criminal offence. The German provision requiring that the competent
court is convinced that the person concerned committed another
criminal offence could only work to the latter's benefit and not
amount to a violation of his rights.
Finally, the Government submit that, though the Code of Criminal
Procedure does not expressly provide for a means to correct a decision
to revoke the suspension of a sentence, such a decision could, if
necessary, be taken as a matter of grace.
The Government request the Commission to declare the
application inadmissible as being incompatible ratione materiae
with the provisions of the Convention; alternatively, as being
manifestly ill-founded within the meaning of Article 27 para. 2 of the
Convention.
B. The applicant&S
The applicant considers that Article 6 para. 2 of the
Convention presupposes judicial proceedings in which the basic
guarantees of a fair trial within the meaning of Article 6 para. 1
of the Convention, in particular the right to a public hearing, are
ensured.
Furthermore the applicant submits that the timing of a
decision to revoke the suspension of a sentence should not be regarded
as optional. The facts that the applicant was later convicted and the
impugned decisions could have been taken at that time are, therefore,
irrelevant to the present case.
The applicant also finds that a reliable confession can only
constitute one of the elements to be considered in a decision to
revoke the suspension of a sentence under S. 56(f) para. 1 (1) of the
Penal Code. Without having heard the applicant in person, the Courts
concerned could not properly conclude that he did not fulfil the
expectations on which the decisions to suspend his sentence were
based.
THE LAW
1. The applicant complains under Article 6 para. 2 (Art. 6-2) of
the Convention that the German court decisions to cancel the
suspension of his sentences contained an appraisal of his guilt in
respect of the new charge although he had not yet been 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. 7986/77, 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 the determination of the new charge against the applicant by the
competent court.
However, the Commission observes that the two sentences to
imprisonment were lawfully imposed on the applicant after convictions
in 1981 and 1983 and following the decisions to cancel the suspension
of the remainder of these sentences the applicant is lawfully detained
in accordance with Article 5 para. 1 (a) (Art. 5-1-a) of the
Convention. 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 amount 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 did not only admit his guilt, but also requested that
the decision to suspend his sentences be revoked.
Furthermore the Commission notes that the Osnabrück Regional
Court, in its decisions of 12 March and 4 April 1986, stated that
there were strong suspicions against the applicant that he had
committed another criminal offence. It then referred to the warrant
of arrest against him and recapitulated the charge on which it was
based. The Court also considered that the applicant had confessed in
detail the fraud in question and requested that the suspension be
revoked, and concluded that the applicant had committed another offence
and thus did not fulfil the expectations on which the decisions to
suspend his sentences had been based. The Oldenburg Court of Appeal
found that the applicant had admitted his guilt. The Federal
Constitutional Court considered that by virtue of the principle of the
rule of law no measures amounting to a penalty may be taken against a
defendant without his guilt having been established according to law.
According to the constant jurisprudence of German courts the court
supervising the execution of sentences must be convinced of the
applicant's guilt. However, this finding of guilt did not violate the
presumption of innocence on the ground that the impugned decision only
deprived the applicant of an advantage.
The Commission finds that these different 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 decisions of 12
March and 4 April 1986, concluded that the applicant had committed
another criminal offence. This reasoning was confirmed by the Court of
Appeal and by the Federal Constitutional Court which in fact assumed a
finding of guilt in the present case.
However, the Regional Court, in the two first paragraphs of
the impugned decisions, clearly pointed out that there were only new
criminal proceedings instituted against the applicant, that there was
a strong suspicion and that the charge concerned had not yet been
determined according to law. Moreover, the decisions were in
particular based upon the applicant's detailed confession and his
request that the suspension of his sentences be revoked.
The Commission concludes that, in the particular circumstances of
the present case, the impugned German court decisions 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 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. The applicant also invokes Article 6 para. 3 (b), (c) and (d)
(Art. 6-3-b-c-d) of the Convention with regard to the above complaint.
However, the Commission finds no appearance of a violation of these
provisions.
This part of the application is, therefore, also manifestly
ill-founded within the meaning of Article 27 para. 3 (Art. 27-3) of
the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)