CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 novembre 1994

.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. 23091/93                       by M. M.                       against Germany         The European Commission of Human Rights (First Chamber) sitting in private on 30 November 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         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 November 1993 by M. M. against Germany and registered on 15 December 1994 under file No. 23091/93;         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 1959, is a German national and resident in Remscheid.   When lodging his application he was detained at a prison in Düsseldorf.   Before the Commission he is represented by Mr. P. Budde, a lawyer practising in Dortmund.   A.     Particular circumstances of the case         On 22 January 1982 the Wuppertal Regional Court (Landgericht) convicted the applicant of murder and attempted grave robbery and sentenced him to twelve years and one month's imprisonment.   The applicant had served two thirds of his sentence on 6 May 1989.         On 22 November 1991 the Wuppertal Regional Court refused to suspend the remainder of the applicant's sentence on probation.         The Regional Court found that, for the time being, such a suspension could not be considered, as it could not be put to a test whether the applicant would commit any further offences if released, as required under S. 57 para. 1 (1) of the Penal Code (Straf- gesetzbuch).   In this respect the Regional Court had regard to the applicant's personality and his past life, and found that it could not be expected that he would no longer commit criminal offences, even taking the effects of a release on probation into account.         The Regional Court further stated that not even the applicant's lengthy imprisonment had dissuaded him from committing further offences.   In this respect, the Regional Court noted that, in new investigation proceedings pending against him, the applicant was charged with having committed drug offences, namely of having sold hashish to another prisoner in March and April 1989.   The Court therefore considered that there was a strong suspicion that the applicant had been involved in drug trafficking ("Insoweit erachtet die Kammer ... den Angeklagten für dringend verdächtig ... den ihm angelasteten Handel mit Betäubungsmitteln begangen zu haben.").   This suspicion was not only based upon the statements of the prisoner concerned.   When his cells in the prisons in Remscheid and Werl had been searched in April and November 1989, respectively, small quantities of hashish had been found, and the applicant had been, therefore, fined DM 450.   Thus the offence of which he was charged in the new proceedings was not foreign to his nature.   Witnesses for the defence had made contradictory statements.   In sum, the Court was convinced that the charge against the applicant was justified ("Insgesamt gesehen, ist die Kammer der Überzeugung, daß der Tatvorwurf gegen den Angeklagten zu Recht besteht.").   The applicant's tendency to commit criminal offences called for a further execution of his sentence.         On 6 February 1992 the Düsseldorf Court of Appeal (Oberlandes- gericht) dismissed the applicant's appeal.   The Court of Appeal considered in particular that the Regional Court could take into account the further offence committed by the applicant in the course of his detention, which was at issue in the pending investigation proceedings conducted by the Wuppertal Public Prosecutor's Office (Staatsanwaltschaft), in order to examine the conditions under S. 57 para. 1 (2) of the Penal Code.   In any event, a final penal order had been issued against him in December 1989 and that criminal conduct did not permit a positive prognosis as to his future conduct.   Both cases showed that the execution of his sentence had not yet sufficiently achieved its aim.         On 23 April 1992 the Wuppertal District Court ( Amtsgericht) acquitted the applicant of the charge of drug trafficking.         On 7 June 1993 the Federal Constitutional Court (Bundesver- fassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) on the ground that it offered no prospect of success.   The Constitutional Court considered in particular that the lower courts' refusal to suspend the remainder of the applicant's sentence did not amount to a violation of the presumption of innocence.   B.     Relevant domestic law         According to S. 57 para. 1, first sentence, of the German Penal Code (Strafgesetzbuch), the competent court may suspend the remainder of a sentence to a imprisonment if (1) two thirds of the sentence, at least two months have been served, (2) it can be put to a test whether the convicted person would not commit criminal offences if released, (3) and the convicted person agrees.   The second sentence of S. 57 para. 1 provides that in taking the decision, the court has to take the person's personality into account, further his past life, the circumstances of his criminal offence, his conduct in prison, his personal situation and the effects which the conditional release will have upon him.     COMPLAINTS         The applicant complains under Article 6 para. 2 of the Convention that the German court decisions refusing the suspension of the remainder of his sentence to imprisonment amounted to a finding of guilt without him having had a possibility to exercise his defence at a trial.   THE LAW         The applicant complains that the German court decisions refusing the suspension of the remainder of his sentence to imprisonment amounted to a violation of the presumption of innocence, as guaranteed under Article 6 para. 2 (Art. 6-2) of the Convention.         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 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, pp. 54- 55, para. 37, and p. 79, para. 37, respectively; No. 7986/77, Dec. 3.10.78, D.R. 13 p. 73).   The Commission therefore finds that the presumption of innocence may, in principle, be invoked as regards the court decisions 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 following his conviction in 1982, the applicant is lawfully detained in accordance with Article 5 para. 1 (a) (Art. 5-1-a) of the Convention, and 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 notes that the Wuppertal Regional Court, in its decision of 22 November 1991, stated that, in new investigation proceedings pending against him, the applicant was charged with having committed drug offences, and that there was a strong suspicion that the applicant had been involved in drug trafficking.   In this respect, the Regional Court, having had regard to the results of the investigations at that stage of the proceedings, found that the charge against the applicant was justified.   The Düsseldorf Court of Appeal, in its decision of 6 February 1992, confirmed the Regional Court's reasoning as to the new offence committed by the applicant in the course of his detention which was at issue in the investigation proceedings conducted by the Wuppertal Public Prosecutor's Office.   According to the Federal Constitutional Court, the presumption of innocence had not been violated.         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, loc. cit., p. 18, para. 40).         The Commission considers that the Regional Court merely pointed out that new criminal proceedings had been instituted against the applicant and that there was a strong suspicion that the applicant had committed a drug offence in the course of his imprisonment.   While the Court of Appeal also referred to a new criminal offence committed by the applicant, it clarified in the same sentence that this matter was still being examined in investigation proceedings conducted by the competent Public Prosecutor's Office.         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.         Consequently, the application is manifestly ill-founded within the meaning of Article 27 (Art. 27) of the Convention.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)