CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 décembre 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. 11150/84                       by G.W.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 9 December 1987, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER              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 18 September 1984 by G.W. against the Federal Republic of Germany and registered on 21 September 1984 under file No. 11150/84;           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 1925 and living in N..   He is represented by Mr.   K. Kühl, a professor at Giessen University.           On 3 December 1979 the applicant was indicted, inter alia, of having between 1977 and 1979 acted as a professional receiver of stolen goods.           On 13 May 1983 the Krefeld Regional Court (Landgericht), having heard the applicant and the Public Prosecutor's Office, decided to discontinue the proceedings in accordance with S. 206 a of the Code of Criminal Procedure (Strafprozessordnung) on the ground that according to medical expert opinions the applicant was permanently unfit to stand trial for health reasons (dauernde Verhandlungsunfähigkeit).           The Court ordered that, in accordance with S. 467 para. 3 N° 2 of the Code of Criminal Procedure, the applicant had to bear his necessary expenses because he would, in the Court's opinion, have been convicted, had the trial taken place ("... da die Durchführung des Verfahrens nach Auffassung der Kammer zu einer Verurteilung geführt hätte").           Referring to the indictment the Court pointed out that the applicant was suspected of having, as the manager of the G. Wurm Industrie-Bedarf company, received and sold stolen nickel.   For each of the approximately thirty stolen lots worth altogether 2.5 million DM he allegedly paid DM 12,000 to an accomplice.   Although he had denied the charges his conviction was, in the present state of the file, nearly certain ("... nach Aktenlage ist seine Verurteilung jedoch annähernd sicher zu erwarten").           The Court then pointed out that the four persons, who were involved in the complex of "nickel theft" (MM G, S, M and B), had meanwhile been convicted on 2 June 1980 of some 18 or 17 counts of theft respectively.   The judgment had become final.   This judgment contained the statements according to which the applicant had offered and paid a remuneration to the accused for stolen nickel.   The Court added that although the above findings had no binding effect with regard to the applicant it had to be expected that in view of the credible confessions of the four former accomplices he would likewise have been convicted.   The Court finally stated that a claim for compensation for the applicant's detention on remand had to be rejected in accordance with S. 6 para. 1 N° 2 of the Act on Compensation for Prosecution Measures (Strafrechtsentschädigungsgesetz) because the applicant would most likely have been convicted and would have received a severe prison sentence had the proceedings not been discontinued.             The applicant's appeal (sofortige Beschwerde) against the order of 13 May 1983 was rejected by the Düsseldorf Court of Appeal (Oberlandesgericht) on 18 July 1983 as being ill-founded.           On 22 December 1983 the Court of Appeal, upon the applicant's objections (Gegenvorstellung), reconsidered the applicant's appeal and decided there were no reasons to quash or amend its earlier decision of 18 July 1983.   The fact that meanwhile the convicted G and B had made statements exonerating the applicant was of no importance as these new statements were not credible.   At the trial the two had described the applicant as being the instigator and the person who mainly profited from the thefts.   They had given no convincing explanation why they incriminated the applicant if he had nothing to do with the matter.   Furthermore G's statement of 30 July 1983, according to which at least three "deliveries" were made at the store-room of the applicant's company, would - as the Public Prosecutor correctly observed - make no sense if the applicant had not participated in the commercialisation of the stolen goods.           On 29 March 1984 and 27 April 1984 the Court of Appeal rejected two further objections raised by the applicant, who alleged that his right to be heard still had not been sufficiently respected.           On 13 July 1984 a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) refused to admit the applicant's constitutional complaint on the ground that it offered no prospects of success.           The Court found that neither the refusal to reimburse the applicant's necessary expenses nor the refusal of compensation for detention on remand had the character of a sanction which would violate the principle of presumption of innocence.   The application of the relevant legal provisions likewise did not violate this principle. The Regional Court had neither established the applicant's guilt nor treated him as being guilty.   On the basis of the existing suspicion, it had only made a prognosis on the possible result of the proceedings.   This could not be held against the applicant as a finding of guilt, as there was no formal conviction and his innocence had consequently still to be assumed.   That the reasons given in the order of 13 May 1983 could not be misinterpreted as containing an appraisal of guilt also followed from the fact that the proceedings had been discontinued.   The citation of passages from the judgment convicting the co-accused and relating to the applicant's participation in the criminal action of these co-accused also had to be understood as being made in the framework of a prognosis only. Furthermore it did not violate the applicant's right to a fair trial if the Regional Court based its decision on the state of the file at the moment when the proceedings were discontinued.   At that time the judgment against the co-accused had been given and was part of the file.   The applicant had the opportunity to submit his comments in writing and thus his right to be heard had been respected.   Further fact finding measures would have been contrary to the function of the discontinuance of the proceedings.     COMPLAINTS           The applicant considers that the reasons stated in the Regional Court's order of 13 May 1983, which was confirmed by the Court of Appeal, contain an appraisal of guilt contrary to Art 6 para. 2 of the Convention.     THE LAW           The applicant complains under Article 6 para. 2 (Art. 6-2) of the Convention that the reasons given in the German court decisions not to reimburse his necessary expenses in the discontinued proceedings and not to award compensation for his detention on remand amount to a violation of the 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 the case of the proceedings against him being discontinued nor does it contain any obligation to pay in such cases compensation for lawful detention on remand.   The provision may, however, be violated if, without the accused's 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 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 Krefeld Regional Court stated in its decision of 13 May 1983, inter alia, that the applicant would have been convicted, had the trial taken place; that his conviction was, in the present state of the file, nearly certain; that he would most likely have been convicted.   The Düsseldorf Court of Appeal, in its decision of 22 December 1983, found that the statements of two co-accused, which exonerated the applicant, were not credible.   For the Federal Constitutional Court the impugned decisions did not establish the applicant's guilt nor treat him as guilty, but only made, on the basis of the existing suspicion, a prognosis on the possible result of the proceedings.           The Commission understands that the German courts thereby meant to indicate that there were still strong suspicions concerning the applicant.   Although certain formulations were ambiguous, the courts nevertheless confined themselves in substance to describing, on the basis of the court file, a state of suspicion.   The decision did not contain any finding of guilt.   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 Krefeld Regional Court, as upheld by the Court of Appeal and the Federal Constitutional Court, does not amount to a violation of the principle of the 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)