THE FACTS
Whereas the facts presented by the applicant may be summarised as
follows:
The applicant is an Italian citizen, born in 1936 and resident at
B./Rhine. He is represented by Dr. Y., a lawyer at F./Palatinate,
acting under a power-of-attorney dated 5th September, 1967.
From statements and from documents submitted by the applicant it
appears that, on .. June, 1966, he was convicted by the District Court
(Schöffengericht) at F. for negligent homicide (fahrlässige Tötung) and
sentenced to four months' imprisonment. The Court further decided that
the sentence should be suspended for a probationary period of three
years on the conditions that during this period the applicant continued
to be of good behaviour and notified the Court of any change of
address.
It appears that the applicant appealed (Berufung) against his
conviction and sentence to the Regional Court (Landgericht) at F. On
.. November, 1966, the Regional Court rejected the appeal. However, the
Court modified the above condition of probation to the extent that the
applicant should pay to the Red Cross a sum of 1,000 DM in monthly
instalments of 100 DM, in accordance with Article 24 of the Criminal
Code.
The applicant then made a further appeal (Revision) to the Court of
Appeal (Oberlandesgericht) at Zweibrücken.
In the meanwhile, the applicant had lodged with the said Court of
Appeal an appeal (Beschwerde) against the decision modifying the
condition of probation. He alleged that such modification detrimental
to him was unlawful. The Court of Appeal rejected the appeal on ..
January, 1967; it held that the principle prohibiting a reformatio in
peius applied to sentences only and not to conditions of probation.
Furthermore, the condition imposed in the present case did not
constitute an undue hardship on the applicant.
On .. May, 1967, the Court of Appeal dismissed the applicant's further
appeal as well. The applicant states that this decision was taken by
a different division of the same Court from the one which decided his
appeal relating to the modification of conditions of probation.
According to him, this was due to his having successfully challenged
the judges of the former court.
The applicant had also lodged with the Federal Constitutional Court
(Bundesverfassungsgericht) a constitutional appeal
(Verfassungsbeschwerde) against the Court of Appeal's decision of ..
January, 1967. This was rejected on .. July, 1967, on the ground that
the appeal was in part inadmissible and in part clearly ill-founded.
The Court referred to Article 103, paragraph (3), of the Basic Law
(Grundgesetz) which guarantees that a person should not be put in
double jeopardy, and decided that this provision was clearly not
violated in the present case. The Court continued that it was not
possible to allege by way of a constitutional appeal a violation of the
principle prohibiting a reformatio in peius and that in this respect
the appeal was inadmissible.
The applicant now complains that the Convention was violated by the
Regional Court's modification of the condition of probation. He alleges
that, by this decision, a heavier sentence was in fact pronounced
against him than that which was imposed by the District Court. He
contends that an accused should not suffer a detriment where he appeals
against an appeal; further that the detriment need not necessarily
consist of an increase of the sentence but may also be he imposition
of a further obligation as, in the present case, the payment of 1,000
DM.
The applicant alleges a violation of the Convention and, in particular,
Article 7, paragraph (1). He submits that, although the principle
prohibiting a reformatio in peius was not expressly embodied in this
Article, the provision should nevertheless apply in the present case
as the decision complained of had an effect equal to such reformatio
in peius.
THE LAW
Whereas, the applicant alleges a violation of Article 7 (Art. 7) of the
Convention;
Whereas Article 7, paragraph (1) (Art. 7-1), of the Convention provides
that "no one shall be held guilty of any criminal offence on account
of any act or omission which did not constitute a criminal offense
under national or international law at the time when it was committed,
nor shall a heavier penalty be imposed than the one that was applicable
at the time the criminal offence was committed;
Whereas it is to be observed that the second sentence of Article 7,
paragraph (1) (Art. 7-1), of the Convention refers to "penalties" only;
whereas the Commission finds that the conditions of probation do not
constitute a "penalty" within the meaning of this provision but are a
measure touching upon the effects of the penalty imposed; whereas,
consequently, Article 7, paragraph (1) (Art. 7-1), in fine is not
applicable to decisions relating to the conditions of probation;
Whereas it follows that the application is incompatible with the
provisions of the Convention and must be rejected in accordance with
Article 27, paragraph (2) (Art. 27-2), thereof.
Now therefore the Commission declares this application INADMISSIBLE