CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 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 } .s23A41E03 { width:36pt; display:inline-block }                          AS TO THE ADMISSIBILITY OF                         Application No. 12669/87                       by R.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 11 October 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   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 7 December 1986 by R. against the Federal Republic of Germany and registered on 26 January 1987 under file No. 12669/87;           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, which do not appear to be in dispute between the parties, may be summarised as follows.           The applicant, born in 1957, is a German national.   When lodging his application he was detained at Kiel Prison.   Before the Commission he is represented by Mr.   G.-M. Achterberg, a lawyer at Neumünster.           On 24 October 1985 the Osnabrück Regional Court (Landgericht), supervising the execution of sentences (Vollstreckungsgericht), suspended (Strafaussetzung zur Bewährung) the remainder of two sentences in two separate decisions.   These sentences had been imposed on the applicant by the Göttingen Regional Court in 1981 and by the Freiburg Regional Court in 1983.           In January 1986 information was laid against the applicant on the suspicion of fraud.   The applicant was arrested and, upon a warrant of arrest of the Neumünster District Court (Amtsgericht), taken into detention on remand on 30 January 1986.   During his examination on that day by the police, he confessed in detail.           By letter of 12 February 1986 the applicant informed the Kiel Public Prosecutor's Office (Staatsanwaltschaft) about five further counts of fraud and requested that the Göttingen and Freiburg Public Prosecutor's Offices be informed with a view to starting proceedings to revoke the suspension of his earlier sentences.   On 18 February 1986 the applicant requested the Osnabrück Regional Court to revoke - as soon as possible - the suspension of his previous sentences according to S. 56(f) para. 1 (1) of the German Penal Code (Strafgesetzbuch).   He added that this letter should be considered as his observations upon the envisaged decision to revoke the suspension, and that he regretted "not to have succeeded again".           S. 56(f) para. 1 (1) of the Penal Code 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 12 March and 3 April 1986 the Osnabrück Regional Court revoked the suspensions of 24 October 1985.   The Court stated first that the applicant was strongly suspected of having committed a criminal offence.   The Court referred, in this respect, to the warrant of arrest issued on 30 January 1986 and recapitulated its factual findings.   Furthermore it stated that the applicant had admitted that he had committed the offence and requested that the suspensions be revoked.   The Court concluded that by committing another criminal offence during the period of suspension the applicant had shown that he did not fulfil the expectations on which the decisions to suspend his sentences were based.   ("Der Verurteilte hat dadurch, dass er während einer laufenden Bewährungszeit erneut straffällig geworden ist, 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.           On 12 and 28 May 1986, respectively, the Oldenburg Court of Appeal (Oberlandesgericht) dismissed the applicant's appeals (sofortige Beschwerden) against the decisions of 12 March and 3 April 1986.   In its decision of 12 May 1986 the Court noted in particular that the applicant had admitted that he had again committed an offence.   It considered that, having regard to his relapse into crime ("erneutes Versagen") two months after the suspension of his sentence, a prolongation of the period of suspension instead of the revokation could not be considered.           On 27 November 1986 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) against both sets of decisions on the ground that it offered no prospect of success.           The Court found in particular that the presumption of innocence derived from the principle of the rule of law was not violated.   It considered that by virtue of this principle no measures amounting to a penalty may be taken against a defendant without his guilt having been established according to law.   However, not every finding of guilt would contravene the principle of the rule of law. According to constant jurisprudence S. 56(f) para. 1 (1) of the Penal Code did not require that the defendant had already been convicted, but the court supervising the execution of sentences, upon the basis of its own assessment, must be convinced that he committed the offence in question.   This jurisprudence could not be objected to from a constitutional point of view.   The revocation of a suspension constituted the consequence of the positive decisions to suspend the sentence.   It deprived the defendant of an advantage which was based on a prognosis as to his future conduct and, in any event, subject to certain insecurities.   The court supervising the execution of sentences could not be prevented from revoking a suspension in circumstances which would have been a reason for it not to suspend the sentence at the time of its initial decision.           In the new criminal proceedings the indictment was preferred on 27 June 1986.   On 27 November 1986 the Kiel Regional Court ordered a medical examination of the applicant as to his criminal responsibility.           On 27 February 1987 the Kiel Regional Court convicted the applicant of thirty counts of fraud and sentenced him to four years' imprisonment.   The Court relied on the applicant's confession as well as on the medical expert opinion according to which the applicant was not suffering from a mental illness, although it could not be excluded that due to the weakness of his character and the neurotic development of his life his criminal responsibility was considerably limited.           The applicant's appeal on points of law (Revision) was dismissed by the Federal Court of Justice (Bundesgerichtshof) on 3 August 1987.   COMPLAINTS           The applicant complains under Article 6 paras. 2 and 3 (b), (c) and (d) of the Convention that the German court decisions revoking the suspensions of his sentences violated the presumption of innocence.   He considers that the courts, on the evidence before them, could not be convinced of the applicant's guilt as required under S. 56(f) of the Penal Code.   The revocation of a suspension was not only a provisional measure but in fact amounted to a penalty.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 7 December 1986 and registered on 6 January 1987.           On 9 December 1987 the Commission decided in accordance with Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the application to the respondent Government and to invite them to present before 11 March 1987 their observations in writing on the admissibility and merits of the application.           The Government's observations were submitted on 15 March 1988 and received on 18 March 1988.   The applicant's reply of 9 May 1988 was received on 16 May 1988.     SUBMISSIONS OF THE PARTIES   A.       The respondent Government&S           The Government contend that the application is incompatible ratione personae with the provisions of the Convention on the ground that the applicant had admitted the fraud concerned and expressly requested that the suspension of his previous sentences be revoked. There was nothing to indicate that his confession was not serious or false; in particular, it did not follow from the medical expert opinion that his confession was unreliable.   According to the principle of "volenti non fit iniuria" the applicant cannot claim that the court decisions of 24 October 1985 amount to a violation of his rights under the Convention.           Moreover, the Government submit that, having regard to the applicant's conviction on 27 February 1987 and his unsuccessful appeal on points of law, the impugned court decisions would have, in any event, been taken after conclusion of these proceedings.   The earlier taking of the decisions did not prejudice the applicant.           Furthermore, the Government submit that the application is incompatible ratione materiae with the provisions of the Convention. They refer to the Convention organs' case-law (Eur.   Court H.R., Engel and others judgment of 8 June 1976, Series A No. 22, para. 90; Eur. Comm.   H.R., No. 5620/72, Dec. 18.7.74; No. 7058/76, Dec. 12.7.76) according to which Article 6 para. 2 of the Convention does not apply to proceedings concerning only the kind or level of punishment.   The Government consider that this also applies in the present case.   When deciding upon whether or not to revoke the suspension of a sentence, the competent national court also has to consider all factors relating to the individual's personality.           Moreover, the Government contend that the application is in any way manifestly ill-founded on the ground that the impugned court decisions of the Osnabrück Regional Court dated 12 March and 3 April 1986 and of the Oldenburg Court of Appeal dated 12 and 28 May 1986 comply with the principles laid down by the Strasbourg organs as regards the presumption of innocence (Eur.   Court H.R., Minelli judgment of 25 March 1983, Series A No. 62, para. 37; Eur.   Comm.   H.R., No. 7986/77, Dec. 3.10.78, D.R. 13 p. 73; No. 9212/80, Dec. 7.12.81).           The Government find that Article 6 para. 2 of the Convention does not require an oral hearing.   Rather, it is the task of the domestic legislator to lay down the more specific rules of criminal procedure.   The Government conclude that S. 56 (f) para. 1 (1) of the German Code of Criminal Procedure, as applied in the present case, is in conformity with the Convention.           Furthermore they submit that both the Osnabrück Regional Court and the Oldenburg Court of Appeal found that the applicant had committed another criminal offence during his period of probation. The Courts relied, in this respect, on the applicant's confession and had no reason to doubt his criminal responsibility.   The Courts concluded, with legal effect only for the proceedings on the issue whether or not to revoke the suspension of a sentence, that the presumption of innocence under Article 6 para. 2 of the Convention was refuted; and, to that extent, the applicant was proved guilty according to law in judicial proceedings (justizförmiges Verfahren), in which he had the opportunity to exercise the rights of the defence.           The Government also refer to the Commission's decision of 6 May 1985 on the admissibility of Application No. 11226/84, according to which the decision to revoke the suspension of a sentence can be based on a suspicion that the person concerned committed another criminal offence.   The German provision requiring that the competent court is convinced that the person concerned committed another criminal offence could only work to the latter's benefit and not amount to a violation of his rights.           Finally, the Government submit that, though the Code of Criminal Procedure does not expressly provide for a means to correct a decision to revoke the suspension of a sentence, such a decision could, if necessary, be taken as a matter of grace.           The Government request the Commission to declare the application inadmissible as being incompatible ratione materiae with the provisions of the Convention; alternatively, as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.     B.       The applicant&S           The applicant considers that Article 6 para. 2 of the Convention presupposes judicial proceedings in which the basic guarantees of a fair trial within the meaning of Article 6 para. 1 of the Convention, in particular the right to a public hearing, are ensured.         Furthermore the applicant submits that the timing of a decision to revoke the suspension of a sentence should not be regarded as optional.   The facts that the applicant was later convicted and the impugned decisions could have been taken at that time are, therefore, irrelevant to the present case.           The applicant also finds that a reliable confession can only constitute one of the elements to be considered in a decision to revoke the suspension of a sentence under S. 56(f) para. 1 (1) of the Penal Code.   Without having heard the applicant in person, the Courts concerned could not properly conclude that he did not fulfil the expectations on which the decisions to suspend his sentence were based.     THE LAW   1.       The applicant complains under Article 6 para. 2 (Art. 6-2) of the Convention that the German court decisions to cancel the suspension of his sentences contained an appraisal of his guilt in respect of the new charge although he had not yet been 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. 7986/77, 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 decisions concerned in the present case, which were taken prior to the determination of the new charge against the applicant by the competent court.           However, the Commission observes that the two sentences to imprisonment were lawfully imposed on the applicant after convictions in 1981 and 1983 and following the decisions to cancel the suspension of the remainder of these sentences the applicant is lawfully detained in accordance with Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.   The impugned decisions, therefore, do not as such violate Article 6 para. 2 (Art. 6-2) of the Convention.           As regards the question whether the supporting reasoning in the impugned court decisions amount in substance to a determination of the applicant's guilt contrary to Article 6 para. 2 (Art. 6-2) of the Convention, the Commission attaches particular weight to the fact that the applicant did not only admit his guilt, but also requested that the decision to suspend his sentences be revoked.           Furthermore the Commission notes that the Osnabrück Regional Court, in its decisions of 12 March and 4 April 1986, stated that there were strong suspicions against the applicant that he had committed another criminal offence.   It then referred to the warrant of arrest against him and recapitulated the charge on which it was based.   The Court also considered that the applicant had confessed in detail the fraud in question and requested that the suspension be revoked, and concluded that the applicant had committed another offence and thus did not fulfil the expectations on which the decisions to suspend his sentences had been based.   The Oldenburg Court of Appeal found that the applicant had admitted his guilt.   The Federal Constitutional Court considered that by virtue of the principle of the rule of law no measures amounting to a penalty may be taken against a defendant without his guilt having been established according to law. According to the constant jurisprudence of German courts the court supervising the execution of sentences must be convinced of the applicant's guilt.   However, this finding of guilt did not violate the presumption of innocence on the ground that the impugned decision only deprived the applicant of an advantage.           The Commission finds that these different 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 decisions of 12 March and 4 April 1986, concluded that the applicant had committed another criminal offence.   This reasoning was confirmed by the Court of Appeal and by the Federal Constitutional Court which in fact assumed a finding of guilt in the present case.           However, the Regional Court, in the two first paragraphs of the impugned decisions, clearly pointed out that there were only new criminal proceedings instituted against the applicant, that there was a strong suspicion and that the charge concerned had not yet been determined according to law.   Moreover, the decisions were in particular based upon the applicant's detailed confession and his request that the suspension of his sentences be revoked.           The Commission concludes that, in the particular circumstances of the present case, the impugned German court decisions do 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.       The applicant also invokes Article 6 para. 3 (b), (c) and (d) (Art. 6-3-b-c-d) of the Convention with regard to the above complaint.   However, the Commission finds no appearance of a violation of these provisions.       This part of the application is, therefore, also manifestly ill-founded within the meaning of Article 27 para. 3 (Art. 27-3) of the Convention.             For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE.         Secretary to the Commission          President of the Commission                (H.C. KRÜGER)                       (C.A. NØRGAARD)