CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 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 OF                         Application No. 10833/84                       by K.G.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 13 October 1987, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. JÖRUNDSSON                   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 17 February 1984 by K.G. against the Federal Republic of Germany and registered on 17 February 1984 under file N° 10833/84;           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 German citizen born in 1937 and living in Munich.   He is a lawyer (Rechtsanwalt) by profession.           The applicant's previous applications No. 8309/78 and No. 8858/80 concerning the length of criminal proceedings against him were declared inadmissible in May 1979 and July 1983, respectively.           In 1964 investigation proceedings were instituted against the applicant and others on the suspicion of having committed bombings in Italy in 1962 and 1963.   On 29 May 1980 the applicant and some coaccused were convicted and sentenced by the Cologne Regional Court (Landgericht).   The applicant was found guilty on two counts of bombing and two counts of attempted bombing and he was sentenced to three years' imprisonment.   The judgment was eventually quashed by the Federal Court of Justice (Bundesgerichtshof) on 3 February 1982 on account of violation of procedural law.   The case was sent back to the Regional Court for a new trial.           However, on 5 October 1982 the Bonn Public Prosecutor's Office (Staatsanwaltschaft) decided to discontinue the proceedings in accordance with Section 153 c (3) of the Code on Criminal Procedure (Strafprozessordnung).   In view of the fact that the offences had been committed abroad some twenty years ago, that part of the charges laid against the defendants would have to be dropped, and that consequently the eventual sentences would be less severe than those imposed by the judgment of 29 May 1980, and mainly in view of the excessive length of the proceedings a continuation of the proceedings was considered to be contrary to public interest while the discontinuation on the other hand was considered as redress within the meaning of Article 50 of the Convention with regard to the violation of the right to a speedy trial.           On 31 January 1983 the Cologne Regional Court rejected the applicant's request for compensation under the Act on Compensation for Prosecution Measures (Gesetz über die Entschädigung für Strafverfolgungs- massnahmen) and for reimbursement of his necessary expenses incurred in the criminal proceedings.   The Court stated that compensation could only be granted for equity reasons.   The decision depended on an evaluation of the case on the basis of the material and evidence available at the moment when the proceedings were discontinued.   In the case of the aplicant and his co-defendants the result of such evaluation was that a conviction was most likely ("mit hoher Wahrscheinlichkeit zu erwarten").   Even taking into account the Federal Court's decision there was nothing to show that a new trial would lead to a substantially different result.   Each claimant therefore had had to expect a sentence exceeding the period he spent in detention on remand.   In view of this procedural risk it did not appear equitable to grant compensation or reimbursement of expenses.           The decision was confirmed by the Cologne Court of Appeal (Oberlandesgericht) on 6 July 1983.   The appellate court confirmed the Regional Court's finding that for equity reasons the claims made by the applicant and the former co-defendants had to be rejected.           In this connection the Regional Court had, in the appellate court's opinion, correctly taken into account the procedural risks of the former defendants.   All had been convicted on the basis of extensive evidence and the trial court's appreciation of the evidence comprised 130 pages.   They had received important sentences.   The quashing of the first judgment by the Federal Court in no way implied - neither from a procedural nor from a material point of view - that the former defendants would have had to be acquitted.   Even if the principle of presumption of innocence forbade basing the denial of compensation on any prognosis on the possible result of the proceedings had they not been discontinued the procedural risk of the applicant having possibly to face conviction in a new trial had to be taken into consideration.   Compared to this risk the discontinuance of the proceedings constituted sufficient compensation in itself avoiding for the defendants the stress of further prosecution.   Also the periods of detention on remand (six-and-a-half months in the applicant's case) had not been excessive and particularly burdensome. Denial of compensation and reimbursement of necessary expenses was in the circumstances equitable.           (The German text of the relevant passages reads:             "Zutreffend hat die Strafkammer auf das erhebliche Prozessrisiko         für alle drei Antragsteller abgehoben.   Sie alle sind nach         eingehender Beweisaufnahme (die Beweiswürdigung umfasst etwa 130         Seiten) zu hohen Freiheitsstrafen verurteilt worden.   Die         Aufhebung des ersten Erkenntnisses durch den Bundesgerichtshof         lässt keineswegs einen Freispruch als naheliegend erscheinen, und         zwar weder aus prozessualen noch sachlichen Erwägungen.   Selbst         wenn von der Meinung ausgegangen werden müsste, dass die         Wahrscheinlichkeit einer Verurteilung wegen der         Unschuldsvermutung oder aus anderen Erwägungen nicht         ausschlaggebend sein dürfte, wäre hier eine ausreichende         Kompensation des erheblichen Prozessrisikos und des weiteren         schwerwiegenden langen und belastenden Verfahrens durch die         Anklagerücknahme festzustellen.   Es kommt hinzu, dass die zu         vergleichenden Strafverfolgungsmassnahmen nicht unangemessen         einschneidend gewesen sind (Haftzeiten).   Somit haben die         Angeklagten bei der Abwägung zwischen Prozessrisiko,         Einstellungserwägungen und dem Vorteil der Verfahrensbeendigung         eine derart kompensierende Vergünstigung erfahren, dass nach den         Umständen des Falles eine Entschädigung nicht der Billigkeit         entspricht.")             The applicant then lodged a constitutional complaint (Ver- fassungsbeschwerde) which was rejected by a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) on 24 August 1983 as offering no prospects of success.   According to this decision the decisions complained of did not violate constitutional rights, in particular they were not arbitrary.   The Court pointed out that according to the appellate court's decision the refusal of compensation and reimbursement was equitable even without considering the mere likelihood of a conviction.   COMPLAINTS             The applicant submits that the denial of his claims and the reasons given therefor violate Article 6 para. 2 of the Convention.     THE LAW             The applicant complains that his request to be compensated for his detention on remand in the course of criminal proceedings which were later discontinued, as well as his request for reimbursement of his necessary expenses in the discontinued proceedings were rejected by the German courts.   He also complains of the reasons given in the decisions rejecting these requests and invokes Article 6 para. 2 (Art. 6-2) of the Convention which guarantees the principle of presumption of innocence.           The Commission first observes that Article 6 para. 2 (Art. 6-2) does not contain any obligation for the Contracting States to reimburse an accused's necessary expenses in case of the proceedings against him being discontinued nor does it contain any obligation to pay in such cases compensation for detention on remand.   The provision may, however, be violated if, without the accused having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, 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; Lutz, Englert, Nölkenbockhoff judgments of 25 August 1987, Series A no. 123, paras. 59/60, 36/37 and 36/37, respectively).           In this respect, the European Court of Human Rights found it to be decisive first whether or not "the courts confined themselves in substance to noting the existence of 'reasonable suspicion' that the defendant had 'committed an offence' and second whether or not the decision in question amounted to a penalty or a measure that can be equated to a penalty" (see Lutz, Englert, Nölkenbockhoff judgments previously cited, paras. 62/63, 39/40 and 39/40, respectively).           In the present case the Cologne Regional Court stated in its decision of 31 January 1983, inter alia, that the applicant's conviction was most likely, in the sense that there was a procedural risk of his being convicted again if a new trial would take place.   In addition, the Court of Appeal, in its decision of 6 July 1983, found that the Regional Court's finding about the "likelihood" of the applicant's conviction only referred to the applicant's procedural risk in case of a new trial and only meant that the decision of the Federal Court of Justice to quash the first judgment in no way implied that in a new trial the applicant would have been acquitted.   The appellate court further stated that, even if the principle of presumption of innocence forbade making a prognosis on the possible result of a new trial, it was still justified for equity reasons to reject the applicant's request because the discontinuance of the proceedings avoiding for the applicant the procedural risk of an eventual conviction and the burden of having to stand a new trial constituted sufficient compensation.   It concluded that, in considering the procedural risk, the reasons having motivated the discontinuance of the proceedings and the advantage inherent for the applicant in the termination of the proceedings, it was not equitable in the circumstances of the case to grant compensation as requested by the former defendants.   The Federal Constitutional Court in its decision of 24 August 1983 stated that it was not arbitrary to deny compensation for equity reasons in view of the procedural risk avoided by the applicant as a result of the discontinuance of the proceedings.           The German courts thereby meant to indicate, as they were required to do for the purposes of the decision, that there were still strong suspicions concerning the applicant.   In particular the appellate court pointed out that the reasons in question only contained an appraisal of the applicant's procedural risk in case of a new trial.   Furthermore, the German courts, acting on an equitable basis and having regard to the strong suspicions which seemed to them to exist concerning the applicant, did not impose any sanction on him, but merely refused to order that his necessary costs and expenses or any compensation should be paid out of public funds.           Consequently, the Commission finds that the decision of the Cologne Regional Court, as upheld by the Court of Appeal and the Federal Constitutional Court, does not amount to a violation of the principle of presumption of innocence as guaranteed in Article 6 para. 2 (Art. 6-2) of the Convention.           It follows that 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.       Secretary to the Commission               President of the Commission              (H.C. KRÜGER)                             (C.A. NØRGAARD)