CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 octobre 1991

.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 }                          TO THE ADMISSIBILITY OF                         Application No. 17664/91                       by E.C.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 9 October 1991, the following members being present:                MM.   C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   J.C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   M.P. PELLONPÄÄ                   B. MARXER                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 15 November 1990 by E.C. against the Federal Republic of Germany and registered on 14 January 1991 under file No. 17664/91;           Having regard to the report provided for in Rule 47 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 1950, is a German national and resident at Nidderau.   Before the Commission she is represented by Mr.   G. Hintze, a lawyer practising in Frankfurt.           On 9 June 1987 the Hanau Regional Court (Landgericht) convicted the applicant of tax evasion and, taking a previous conviction into account, sentenced her to one year and six months' imprisonment.   The execution of the sentence was suspended on probation (Strafaussetzung zur Bewährung).           On 30 March 1990 the 5th Economic Crimes Chamber (Wirt- schaftsstrafkammer) at the Hanau Regional Court convicted the applicant of having, in her position as manager of a firm, repeatedly failed to pay salaries in due time, of having failed to request the opening of bankruptcy proceedings for the above insolvent firm, and of having committed fraud on several counts.           On 4 April 1990 the same Chamber revoked the suspension of 9 June 1987.           The Regional Court, referring to S. 56 (f) para. 1 (1) of the Penal Code (Strafgesetzbuch), found that by committing further criminal offences the applicant had shown that she did not fulfil the expectations on which the suspension was based ("Die Strafaussetzung war zu widerrufen, ..., weil die Verurteilte in der Bewährungszeit Straftaten begangen hat und dadurch gezeigt hat, daß sich die der Strafaussetzung zugrundeliegende Erwartung nicht erfüllt hat").           The Regional Court considered that, in the course of her period of probation, the applicant, in her position as manager of a firm, had repeatedly failed to pay salaries in due time, had failed to request the opening of bankruptcy proceedings for the above insolvent firm, and had committed fraud on several counts.   As regards the details of these criminal offences, the Regional Court referred to its judgment of 30 March 1990.           It noted that the applicant had lodged an appeal against her conviction which was thus not final.   However, it considered that it could already revoke the suspension in view of the aforesaid criminal offences on the ground that, as followed from its judgment of 30 March 1990, it was convinced of the applicant's guilt after having conducted the trial against her in the same composition of judges ("Auch wenn die Verurteilung der Angeklagten noch nicht rechtskräftig ist, weil diese ein Rechtsmittel eingelegt hat, konnte die erkannte Straf- aussetzung zur Bewährung bereits wegen der vorgenannten Straftaten widerrufen werden ..., weil die Kammer, wie sich aus dem Urteil vom 30.03.1990 ergibt, nach der mit der gleichen Berufsrichterbesetzung durchgeführten Hauptverhandlung insoweit von der Schuld der Verur- teilten überzeugt ist.").   Moreover, the applicant had admitted her guilt as regards two of the offences.         S. 56 (f) para. 1 (1) provides that the court supervising the execution of sentences (Vollstreckungsgericht) 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 neue Straftat begeht und dadurch zeigt, daß die Erwartung, die der Strafaussetzung zugrundelag, sich nicht erfüllt hat, ...").           On 14 August 1990 the Frankfurt Court of Appeal (Oberlandes- gericht) dismissed the applicant's appeal (sofortige Beschwerde).   The Court of Appeal considered that the suspension of a sentence could be revoked in view of a new criminal offence even before final conviction in this respect.   However, it was necessary that the court, on the basis of facts beyond doubt, was and could be convinced that the convicted person had committed a new criminal offence.   Having regard to these considerations, the establishment of facts relating to the applicant's new criminal offences in the judgment of the Hanau Regional Court of March 1990, which was based on the applicant's admission of guilt, justified the conviction that she had committed a new criminal offence.   Having regard to the separate sentences of one year and six months' imprisonment, which were imposed in this respect, less strict measures could not be considered.           On 15 October 1990 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) on the ground that it offered no prospect of success.   The Constitutional Court found in particular that the impugned court decisions did not violate the presumption of innocence.   In the proceedings concerning a decision under S. 56 (f) para. 1 (1) of the Penal Code, the presumption of innocence was not affected under the prevailing legislation, if the court concerned referred to new preliminary investigations, established new criminal behaviour and drew particular consequences for its decision to revoke the suspension of a sentence.   In the present case, the Regional Court and the Court of Appeal had based their decisions upon charges against the applicant, which had resulted in the applicant's new conviction of economic crimes after trial.   In the trial upon which this judgment, not yet final, was based the applicant had partly admitted her guilt; in this respect separate sentences of one year and six months' imprisonment had been imposed.   In these circumstances, the decisions to revoke the suspension of her previous sentence were not objectionable under constitutional law.     COMPLAINTS           The applicant complains under Article 6 para. 2 of the Convention that the German court decisions revoking the suspension of her sentence violated the presumption of innocence.   She submits in particular that at the time of revocation the judgment in the new criminal proceedings was not yet final.     THE LAW           The applicant complains under Article 6 para. 2 (Art. 6-2) of the   Convention that the German court decisions to revoke the suspension of   her previous sentence before final determination of the new charges against her violated the presumption of innocence.           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 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, pp. 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 final determination of the new charges against the applicant by the   competent courts.           However, the Commission observes that the sentence of imprisonment was lawfully imposed on the applicant after her conviction in 1987.   Following the Hanau Regional Court's decision to revoke the suspension of this sentence, the applicant's detention is lawful and in accordance with Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.           It is true that the applicant's conviction in the new criminal proceedings had not yet become final at that date.   However, the Commission finds that the presumption of innocence does not require a final judgment before the facts established in a full trial can be taken into account for the revocation of the suspension.           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 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 attaches particular weight to the fact that the   applicant was, at first instance, convicted of the offences concerned    after trial before the same Chamber at the Hanau Regional Court where    she had the opportunity to exercise her defence rights.           The Commission notes that the 5th Economic Crimes Chamber at the Hanau Regional Court, in its decision of 4 April 1990, relied on its judgment of 30 March 1990 convicting the applicant of the criminal offences in question after having conducted a trial in the same composition of judges.   Thereby it found that she had committed new criminal offences, and thus failed to fulfil the expectations on which the decision to suspend her previous sentence had been based.   This reasoning was confirmed by the Frankfurt Court of Appeal.   The Federal Constitutional Court considered in particular that the decisions of the Regional Court and the Court of Appeal had been based upon charges against the applicant, which had resulted in the applicant's new conviction of economic crimes after trial, and that in the trial upon which this judgment was based she had partly admitted her guilt.   In these circumstances, the impugned decisions revoking the suspension of the applicant's previous sentence 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 the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission, by a majority,             DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission          President of the Commission           (H. C. KRÜGER)                        (C. A. NØRGAARD)