CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 octobre 1988

.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. 12380/86                       by Dieter Otto HOUSWITSCHKA                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 5 October 1988 , the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              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 18 June 1986 by Dieter Otto Houswitschka against the Federal Republic of Germany and registered on 2 September 1986 under file No. 12380/86;           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 1951, is a German national and resident in Karlsruhe.   He is a journalist by profession.   When lodging his application he was detained in Bruchsal prison.           His previous application, No. 9859/82 concerning criminal proceedings against him in 1981, was declared inadmissible by the Commission on 16 March 1984.           The present application concerns two separate sets of proceedings.   I.           On 29 November 1984 the Karlsruhe Regional Court (Land- gericht), supervising the execution of sentences (Vollstreckungs- gericht), suspended (Strafausetzung zur Bewährung) the remainder of a sentence, which had been imposed on the applicant by the Stuttgart Regional Court in 1981.           On 16 December 1985 the Karlsruhe District Court convicted the applicant inter alia of offences under the Weapons Act (Waffen- gesetz), forgery of documents, driving without a licence and sentenced him to two years and three months' imprisonment.           On 21 March 1986 the Karlsruhe Regional Court, upon the applicant's appeal (Berufung), reduced the sentence to one year and six months' imprisonment.   The Court found in particular that the applicant had acquired a revolver and had it loaded in his possession at the time of his arrest.   The applicant did not deny these facts. He stated, however, he had thought that he could possess and carry such a weapon without official permission.   He further stated that he had been almost sure that it was unlawful to carry a loaded revolver. However, he had only considered this to be a "regulatory offence" (Ordnungswidrigkeit).           The applicant lodged an appeal on points of law (Revision).           On 2 April 1986, pending the proceedings concerning the appeal on points of law, the Stuttgart Public Prosecutor's Office (Staatsan- waltschaft) requested the Karlsruhe Regional Court, supervising the execution of sentences, to revoke the suspension of the previous sentence.   The Court requested the applicant to submit his observations within four weeks, and his request for extension of the time-limit was not granted.           On 6 May 1986 the Karlsruhe Regional Court revoked the suspension of 29 November 1984.   The Court referred to the District Court's judgments of 16 December 1985 and in particular to the Regional Court's judgment of 21 March 1986.   It considered the statement of facts in the latter judgment and found that the applicant had again committed a serious offence under the Weapons Act ("...steht nach dem geschilderten Sachverhalt zur Überzeugung der Kammer fest, daß [der Beschwerdeführer] erneut in erheblicher Weise gegen das Waffengesetz verstoßen hat.").   The Court concluded that, by the fact that he committed another offence only a few months after the suspension of his sentence, the applicant had shown that he did not fulfil the expectations on which the suspension of his sentence was based ("... der Verurteilte [wurde] nur wenige Monate nach seiner bedingten Entlassung aus der Strafhaft erneut straffällig ... und [hat] dadurch gezeigt ..., daß die Erwartung, die der Strafaussetzung zugrunde lag, sich nicht erfüllt hat.").           In this respect, the Court referred in particular to S. 56 (f) para. 1(1) of the Penal Code (Strafgesetzbuch) which provides that the court supervising the execution of sentences revokes the suspension of a sentence if the convicted person commits another criminal offence during the period of probation and, thereby, shows that he did not fulfil the expectations upon which the suspension of the sentence was based ("Das Gericht widerruft die Strafaussetzung, wenn der Verurteilte in der Bewährungszeit eine Straftat begeht und dadurch zeigt, daß die Erwartung, die der Strafaussetzung zugrunde lag, sich nicht erfüllt hat, ...").           On 11 June 1986 the Karlsruhe Court of Appeal (Oberlandes- gericht) dismissed the applicant's appeal (sofortige Beschwerde).   The Court of Appeal confirmed the reasoning in the Regional Court's decision of 6 May 1986.           On 24 July 1986 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde).   The Constitutional Court found in particular that the courts supervising the execution of sentences were not required under constitutional law to await the outcome of the proceedings on the applicant's appeal on points of law before revoking the suspension of the remainder of his previous sentence.           The applicant's appeal on points of law against his new conviction and sentence apparently remained unsucessful.   II.           On 28 April 1986 the Karlsruhe Regional Court decided that certain security measures should be taken against the applicant being detained on remand, inter alia that his meals should be passed into his cell through the hatch.   His appeal (Beschwerde) was dismissed by the Karlsruhe Court of Appeal on 13 May 1986.           On 8 August 1986 the Federal Constitutional Court, upon the applicant's constitutional complaint, ordered an advance payment of court fees of DM 30.   On 21 November 1986 the Federal Constitutional Court refused to admit his constitutional complaint on the ground that he had not paid the advance fee under S. 34 para. 6 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz).   COMPLAINTS   1.       The applicant complains under Article 6 para. 2 of the Convention that the German court decision revoking the suspension of his sentence violated the presumption of innocence.   He considers that pending the proceedings concerning his appeal on points of law the Karlsruhe Regional Court, supervising the execution of sentences, was not entitled to come to a finding of guilt.   2.       Further, the applicant appears to complain about the court decision of 28 April 1986 as regards his meals in prison.   He also submits that he had informed the Constitutional Court that he did not have any financial means to pay the advance fee.   He does not invoke any provisions of the Convention in this respect.     THE LAW   1.       The applicant complains under Article 6 para. 2 (Art. 6-2) of the Convention that the German court decision to revoke the suspension of the remainder of his previous sentence contains an appraisal of his guilt although he had not yet been finally convicted by the competent court.           Article 6 para. 2 (Art. 6-2) guarantees that "everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".           The Commission recalls that the scope of Article 6 para. 2 (Art. 6-2) is not limited to a procedural guarantee in proceedings concerning the determination of criminal charges.   The Commission and the Court have found that the presumption of innocence will be violated if without the accused having previously been proved guilty according to law 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;   mutatis mutandis, Eur. Court H.R., Lutz/Englert/ Nölkenbockhoff judgments of 25 August 1987, Series A no. 123 p. 25, para. 60, p. 54 - 55 para. 37 and p. 79 para. 37, respectively; cf. also Eur.   Comm.   H.R., No. 7986/778, Dec. 3.10.1978, D.R. 13 p. 73). The Commission therefore finds that the presumption of innocence may, in principle, be invoked as regards the court decision concerned in the present case, which was taken pending the proceedings concerning the applicant's appeal on points of law.           However, the Commission observes that the sentence to imprisonment was lawfully imposed on the applicant after his conviction in 1981 and, following the decision to cancel the suspension of the remainder of the sentence, the applicant is lawfully detained in accordance with Article   5 para. 1 (a) (Art. 5-1-a) of the Convention. The impugned decision, therefore, does not as such violate Article 6 para. 2 (Art. 6-2) of the Convention.           The question next to be determined is whether or not the supporting reasoning amounts in substance to a determination of the applicant's guilt contrary to Article 6 para. 2 (Art. 6-2) of the Convention.           The Commission, in this respect, attaches particular weight to the fact that, in the main proceedings concerning the new charges, the Karlsruhe Regional Court, dismissing his appeal, found that the applicant had admitted possession of a loaded revolver without licence although he had assumed that this act constituted only a "regulatory offence".           The Commission further notes that the Karlsruhe Regional Court, supervising the execution of sentences, referred to the judgments given in the new criminal proceedings against the applicant. Considering the facts established, in particular, in the Regional Court's judgment of 21 March 1986, it found that the applicant had again committed an offence under the Weapons Act.   This reasoning was confirmed by the Karlsruhe Court of Appeal.   The Federal Constitutional Court considered in particular that the court supervising the execution of sentences was not required to await the determination of the applicant's appeal on points of law.           The Commission finds that these statements must be read as a whole and in their proper context (cf.   Eur.   Court H.R., Adolf judgment of 26 March 1982, Series A no. 49, p. 18 para. 40;   Minelli judgment, op. cit., p. 18 para. 40).           It is true that the Regional Court, in its decision of 6 May 1986, concluded that the applicant had committed another criminal offence.   This reasoning was confirmed by the Court of Appeal and the Federal Constitutional Court.           However, the Regional Court relied on the judgments of the competent courts in the new criminal proceedings against the applicant.   The Court, considering the reasoning given in these judgments and, in particular, the applicant's statements as regards the charges under the Weapons Act, as set out in the Karlsruhe Regional Court's judgment of 21 March 1986, adopted the finding that he had committed another criminal offence.           The Commission concludes that, in the particular circumstances of the present case, the decision revoking the suspension of the applicant's previous sentence does not disclose any appearance of a violation of the presumption of innocence as guaranteed under Article 6 para. 2 (Art. 6-2) of the Convention.           It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       As regards the applicant's further complaints concerning the decision of 28 April 1986 relating to his meals in prison and the subsequent court proceedings, the Commission finds that it is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation 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.           The Commission recalls its constant jurisprudence according to which there is no exhaustion of domestic remedies where a domestic appeal is not admitted because of a procedural mistake (No. 6878/75, Dec. 6.10.76, D.R. 6 p. 79).    In the present case, the Federal Constitutional Court refused to admit the applicant's constitutional complaint under S. 34 para. 6 of the Federal Constitutional Court Act on the ground that he had failed to pay the advance fee required.   He has not, therefore, exhausted the remedies available to him under German law and has thus not complied with the requirements under Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies.           It follows that this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.             For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE       Deputy Secretary to the Commission          President of the Commission               (J. RAYMOND)                               (C. A. NØRGAARD)