CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 octobre 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  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)