AS TO THE ADMISSIBILITY
Application No. 11735/85
by Mazhar Mouhamet ZEDAN
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private on
7 October 1987, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
M.A. TRIANTAFYLLIDES
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
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 3 September
1985 by Mazhar Mouhamet ZEDAN against the Federal Republic of Germany
and registered on 5 September 1985 under file No. 11735/85;
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 facts of the case, as they have been submitted by the
applicant, may be summarised as follows:
The applicant, born in 1926 in Syria, is a German national
resident at Heilbronn. He is a mechanic by profession. Before the
Commission he is represented by Mr. N. Wingerter, a lawyer practising
at Heilbronn.
I.
On 9 August 1983 the Heilbronn District Court (Amtsgericht)
fined the applicant for insult of one Mr. H. The Court found in
particular that the applicant's allegations as to his innocence were
clearly disproved by the evidence before it. In the criminal
proceedings Mr. H. had joined party with the prosecution
(Nebenkläger).
On 2 November 1983 the Heilbronn Regional Court (Landgericht),
pending appeal proceedings, decided, with the applicant's consent,
provisionally to suspend the criminal proceedings against him, and
ordered him to pay an amount of 250 DM to the Treasury. The Court
informed him that after payment the proceedings were to be
discontinued definitely. The Court thereby relied on S. 153a para. 2
of the German Code of Criminal Procedure (Strafprozessordnung).
S. 153a provides, inter alia:
"I. In the case of a minor offence the public prosecutor's
office may, with the consent of both the court competent to
decide on the opening of the main proceedings and the person
charged, provisionally refrain from indictment and order the
person charged
...
to pay a certain amount of money to ... the
Treasury
...
if the respective charges and orders are appropriate to
remove the public interest in prosecution in cases of minor
guilt ... If the person charged fulfils the charges and
orders, the act can no longer be prosecuted as a minor offence
...
II. After indictment the court may, with the consent of
both the public prosecutor's office and the accused,
discontinue the proceedings until the end of the trial,
during which the facts are finally assessed, and impose the
same charges and orders as mentioned in the first sentence
of paragraph 1 ..."
On 18 November 1983 the Court finally discontinued the
proceedings. It ordered the applicant to pay the costs of the
proceedings and to bear his own incidental expenses under S. 467
paras. 1 and 5 of the Code of Criminal Procedure which reads:
"I. If the accused is acquitted, or if the opening of
the main proceedings against him is refused, or if the
proceedings against him are discontinued, the costs of the
proceedings and the necessary expenses incurred by the
accused shall be borne by the Treasury.
...
V. If the court definitely discontinues the proceedings
after a provisional discontinuance (S. 153a), the necessary
expenses incurred by the accused shall not be borne by the
Treasury."
On 14 June 1985 the Heilbronn Regional Court corrected its
decision of 18 November 1983 ex officio with regard to the costs
of the proceedings. Moreover, upon the joint plaintiff's request, it
amended the decision and ordered the applicant also to bear the joint
plaintiff's individual costs. The Court found that, for reasons of
fairness to the joint plaintiff, it had to apply by analogy S. 471
para. 3 sub-para. 2 of the Code of Criminal Proceedings which concerns
the costs of proceedings in cases of private prosecution (Privatklage)
and reads:
"The court may distribute the costs of the proceedings and
the incidental costs of the parties in an appropriate way
or, within its due discretion, award the costs against
one party, if
...
the proceedings were discontinued under S. 383 para. 2 (S.
390 para. 5) in view of their trivial nature;
..."
The Court considered that the applicant, in paying the
respective amount of money to the Treasury under S. 153a of the Code
of Criminal Procedure, had admitted his guilt - though it was of a
trivial nature. He had accepted a sanction in order to avoid
conviction. S. 467 para. 5 of the Code of Criminal Procedure provided
for an equal treatment of convicted persons, and those whose
proceedings were terminated under S. 153a of the Code of Criminal
Procedure, in respect of the incidental costs of the accused. The
obligation also to bear the joint plaintiff's incidental costs would,
therefore, be justified on the respective grounds that the applicant
gave rise to the proceedings in committing the criminal offence and
that this criminal offence had been established in a manner equivalent
to a conviction. The Court further stated:
"The Court is, on the basis of the case-file, convinced of
the accused's guilt, though it is of a trivial nature. The
District Court's assessment of the facts is reasonable and
conclusive and the dismissal of the applicant's appeal would
thus have been highly probable."
("Die Strafkammer ist nach Aktenlage von einer - wenn auch
nicht schweren - Schuld des Angeklagten überzeugt. Die vom
Amtsgericht vorgenommene Beweiswürdigung ist nachvollziehbar
und schlüssig, so dass auch mit hoher Wahrscheinlichkeit mit
der Verwerfung der vom Angeklagten eingelegten Berufung zu
rechnen gewesen wäre.")
On 22 July 1985 the Stuttgart Court of Appeal (Oberlandes-
gericht) rejected the applicant's appeal (Beschwerde) against the
decision of 14 June 1985 as inadmissible on the ground that no appeal
lay against the final decision of 18 November 1983, as amended.
The applicant submits that he did not lodge a constitutional
complaint (Verfassungsbeschwerde) with the Federal Constitutional
Court (Bundesverfassungsgericht) as such a complaint would have been
unsuccessful in view of the Court's constant case-law. He refers in
particular to three decisions of the Court of 2 February 1982 (2 BvR
1312/81) concerning a decision not to reimburse the accused's
incidental costs, of 20 July 1984 (2 BvR 790/84) concerning a decision
not to compensate damages due to a criminal prosecution and of
26 November 1984 (2 BvR 627/84) also concerning the accused's own
incidental costs. In these decisions the Federal Constitutional Court
stressed that the respective previous instances neither expressly
stated the accused's guilt nor treated him as guilty.
II.
On 11 April 1985 the Heilbronn Regional Court dismissed the
applicant's request to be granted free legal aid in order to institute
civil proceedings against one Ms. O, his stepdaughter, in connection
with a hereditary title. The Court found that the applicant's claim
did not offer any prospect of success.
COMPLAINTS
1. The applicant complains under Article 6 para. 2 of the
Convention that the Regional Court's decision of 14 June 1985 ordering
him to bear the joint plaintiff's incidental costs violated the
presumption of innocence. He submits in particular that the reasons
for this decision contained an appreciation as to his guilt. He refers
to the Court's statements that he admitted his guilt and gave rise to
the proceedings in committing the criminal offence and further
observes that the Court expressed its conviction of the applicant's
guilt. Furthermore, referring to the judgments of the European Court
of Human Rights in the cases of Lutz, Englert, Nölkenbockhoff, he
maintains that the decision of the Heilbronn Regional Court amounted
to a penalty.
2. The applicant furthermore complains that the civil proceedings
before the Heilbronn Regional Court were unfair and led to incorrect
results.
THE LAW
1. The applicant complains under Article 6 para. 2 (Art. 6-2) of the
Convention that the Regional Court's decision to award the joint
plaintiff's incidental costs against him and in particular the Court's
reasoning violated the presumption of innocence.
Article 6 para. 2 (Art. 6-2) of the Convention secures to everyone
charged with a criminal offence the right to be "presumed innocent
until proved guilty according to law".
The Commission first recalls the Convention organs' constant
case-law according to which the presumption of innocence applies to
cases where decisions on costs after suspension or discontinuation of
criminal proceedings imply an appraisal of the guilt of the accused
(Eur. Court H.R., Lutz, Englert, Nölkenbockhoff judgments of
25 August 1987, Series A no. 123, paras. 59, 36 and 36, respectively).
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a violation
of Article 6 para. 2 (Art. 6-2) 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.
In the present case the applicant failed to lodge a
constitutional complaint with the Federal Constitutional Court under
S. 90 of the Federal Constitutional Court's Act (Bundesverfassungs-
gerichtsgesetz).
It is true that the applicant, referring to certain decisions
of the Federal Constitutional Court in these matters, submits that a
constitutional complaint in his case would have had no prospect of
success.
However, the Commission considers that a constitutional
complaint would indeed have constituted an effective remedy within the
meaning of Article 26 (Art. 26) of the Convention.
According to the Federal Constitutional Court's constant
case-law the principle of the "presumption of innocence" is embodied
in the Constitution of the Federal Republic of Germany and has to be
considered in cases of individual complaints that, after a
discontinuation of criminal proceedings, the accused had to bear his
own incidental costs or other damages due to the prosecution (Federal
Constitutional Court's decisions of 2 February 1982, 20 July and
26 November 1984, referred to by the applicant, as well as the
decision of 30 September 1982 in the Nölkenbockhoff case, cf. Comm.
Report, op. cit., para. 28).
It is true that in those decisions the Federal Constitutional
Court has found no violation of the constitutional principle of the
presumption of innocence. However, the respective decisions did not
deal with situations directly comparable to the circumstances of the
present case. The respective cases concerned cost decisions after the
discontinuation of criminal proceedings for reasons of procedural
economy (S. 154 of the Code of Criminal Procedure) while the
proceedings against the applicant were discontinued under S. 153 of
the Code of Criminal Procedure which applies to cases of minor guilt
if certain orders and charges are fulfilled. As regards these orders
and charges, the present case also differs from the situation in the
Neubecker case (No. 6281/73, Dec. 5.3.76, D.R. 5 p. 13) under S. 153
of the Code of Criminal Procedure. Moreover, the applicant was not
only ordered to bear his own incidental costs, but also the joint
plaintiff's costs were awarded against him pursuant to an application
by analogy of S. 471 para. 3 sub-para. 2 of the Code of Criminal
Procedure.
Furthermore, the Commission had regard to the Federal
Constitutional Court's decision of 26 March 1987 whereby it quashed,
as contravening the principle of the presumption of innocence, two
decisions by district courts and one decision by a regional court
whereby the courts, having held the guilt of the defendants to be
insignificant, had stayed the private prosecutions brought against
them but had awarded the costs of the proceedings against the
defendants, including the costs and expenses of the complainants
(cases 2 Bvr 740/81 and 2 Bvr 284/85, Europäische Grundrechte-
Zeitschrift 1987, pp. 203-209; cf. Englert judgment of 25 August 1987,
Series A no. 123 paras. 22, 32 in fine).
It follows that the applicant cannot be considered as having
exhausted the remedies available to him under German law. Moreover,
an examination of the case does not disclose the existence of any
special circumstances which might have absolved the applicant,
according to the generally recognised rules of international law, from
exhausting the domestic remedies at his disposal.
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies, laid down in Article 26
(Art. 26) of the Convention, and his application must consequently be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant also complains of the alleged unfairness of the
proceedings before the Regional Court concerning his request to be
granted free legal aid. However, the Commission finds no appearance
of a violation of the Convention. It follows that this aspect of 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.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)