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You are here: BAILII >> Databases >> European Court of Human Rights >> ENGLERT v. GERMANY - 10282/83 [1987] ECHR 19 (25 August 1987)
URL: http://www.bailii.org/eu/cases/ECHR/1987/19.html
Cite as: [1987] ECHR 19, (1991) 13 EHRR 392
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In the Englert case*,
_______________
* Note by the Registrar: The case is numbered 9/1986/107/155. The
second figure indicates the year in which the case was referred to the
Court and the first figure its place on the list of cases referred in
that year; the last two figures indicate, respectively, the case's
order on the list of cases and of originating applications (to the
Commission) referred to the Court since its creation.
_______________
The European Court of Human Rights, taking its decision in plenary
session pursuant to Rule 50 of the Rules of Court and composed of the
following judges:
Mr. R. Ryssdal, President,
Mr. J. Cremona,
Mr. Thór Vilhjálmsson,
Mrs. D. Bindschedler-Robert,
Mr. G. Lagergren,
Mr. F. Gölcüklü,
Mr. F. Matscher,
Mr. J. Pinheiro Farinha,
Mr. L.-E. Pettiti,
Sir Vincent Evans,
Mr. R. Macdonald,
Mr. C. Russo,
Mr. R. Bernhardt,
Mr. J. Gersing,
Mr. A. Spielmann,
Mr. J. De Meyer,
Mr. N. Valticos,
and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy
Registrar,
Having deliberated in private on 26 February and 24 June 1987,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 28 January 1986, within the
three-month period laid down by Article 32 § 1 and Article 47
(art. 32-1, art. 47) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention"). It originated in
an application (no. 10282/83) against the Federal Republic of Germany
lodged with the Commission under Article 25 (art. 25) by a national of
that State, Mr. Joachim Englert, on 13 October 1982.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby the Federal Republic of
Germany recognised the compulsory jurisdiction of the Court
(Article 46) (art. 46). The purpose of the request was to obtain a
decision as to whether or not the facts of the case disclosed a breach
by the respondent State of its obligations under Article 6 § 2
(art. 6-2).
2. In response to the enquiry made in accordance with
Rule 33 § 3 (d) of the Rules of Court, Mr. Englert stated that he
wished to take part in the proceedings pending before the Court and
designated the lawyer who would represent him (Rule 30).
3. On 28 January 1986, the President of the Court decided that in
the interests of the proper administration of justice this case and
the Lutz and Nölkenbockhoff cases should be considered by the same
Chamber (Rule 21 § 6).
The Chamber of seven judges to be constituted included, as ex officio
members, Mr. R. Bernhardt, the elected judge of German nationality
(Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the
President of the Court (Rule 21 § 3 (b)). On 19 March 1986, in the
presence of the Registrar, the President drew by lot the names of the
other five members, namely Mr. F. Matscher, Mr. J. Pinheiro Farinha,
Mr. L.-E. Pettiti, Sir Vincent Evans and Mr. R. Macdonald (Article 43
in fine of the Convention and Rule 21 § 4) (art. 43).
4. After assuming the office of President of the Chamber
(Rule 21 § 5), Mr. Ryssdal consulted - through the Deputy Registrar -
the Agent of the German Government ("the Government"), the Delegate of
the Commission and the lawyer for the applicant on the need for a
written procedure. On 3 April, he directed that the Agent and the
applicant's lawyer should have until 1 July 1986 to file memorials and
that the Delegate should be entitled to reply in writing within two
months (Rule 37 § 1). At the same time, he granted the applicant's
lawyer leave to use the German language in the proceedings
(Rule 27 § 3).
The President twice extended the first of these time-limits
- on 3 July until 31 October, and on 10 November until 21 November 1986.
5. The Government's memorial was lodged with the registry on
17 November 1986. The applicant had informed the Registrar on
13 November that he would not be filing a memorial.
6. On 29 November, the Chamber decided to relinquish jurisdiction
forthwith in favour of the plenary Court (Rule 50).
7. On 15 December, the Secretary to the Commission informed the
Registrar that the Delegate would submit his observations at the
hearing.
8. The next day, having consulted - through the Deputy Registrar -
the Agent of the Government, the Delegate of the Commission and the
lawyer for the applicant, the President directed that the oral
proceedings should open on 23 February 1987 (Rule 38). On 6 February,
he granted the members of the Government's delegation leave to speak
in German (Rule 27 § 2).
9. The hearing was held in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting immediately beforehand.
There appeared before the Court:
- for the Government
Mrs. I. Maier, Ministerialdirigentin,
Federal Ministry of Justice, Agent,
Mr. H. Stöcker, Ministerialrat,
Federal Ministry of Justice, Adviser;
- for the Commission
Mr. A. Weitzel, Delegate;
- for the applicant
Mr. N. Wingerter, Rechtsanwalt, Counsel,
Ms. A. Stiefel-Bechdolf, Rechtsanwältin, Adviser.
The Court heard addresses by Mrs. Maier for the Government, by
Mr. Weitzel for the Commission and by Mr. Wingerter for the applicant,
as well as their replies to its questions.
10. On various dates between 6 February and 13 May 1987, the
Commission, the Government and the applicant filed a number of
documents and written comments either at the Court's request or of
their own motion.
AS TO THE FACTS
I. Particular circumstances of the case
11. Mr. Joachim Englert, a German national born in 1958, was in
custody in Ludwigsburg Prison when he applied to the Commission.
Between 1975 and 1980, he was convicted of a number of offences. In
1981, he was sentenced to a year's imprisonment for, among other
things, extortion with menaces (räuberische Erpressung); the sentence
was suspended, however, and he was put on probation (Bewährung) for
four years. In August 1981, the Heilbronn District Court passed on
him an aggregate sentence of one year and two months' immediate
imprisonment, thereby combining his last two sentences.
12. Earlier, on 24 February 1981, the applicant had been arrested
and then, on 25 February, detained on remand; according to the warrant
for his arrest issued by the Heilbronn District Court, he was
suspected of extortion with menaces on two occasions and of having
caused actual bodily harm (Körperverletzung) and committed a rape. On
26 June 1981, he had been indicted (angeklagt) for these offences
before the 3rd Criminal Chamber (3. Grosse Strafkammer) of the
Heilbronn Regional Court (Landgericht).
According to the prosecution, Mr. Englert had
(i) in a restaurant on 23 February 1981, threatened to use force
against a customer - namely to lie in wait for him one night, break
his bones and shoot him dead with a revolver - and by this means
extorted DM 50 from him and demanded a further DM 500, to be paid
on 7 March 1981;
(ii) on the same day, punched Mr. K a distant relative of his, in the
face, injuring him;
(iii) at his lodgings in Bad Wimpfen on the next day, taken from
Mr. K's wife - whom he was temporarily accommodating, together with
her husband, as they had nowhere to live - all her cash, amounting to
DM 150, by threatening to kill her; and
(iv) subsequently, after threatening that he would otherwise beat her
up and kill her, sexually abused Mrs. K while her husband was asleep
under the influence of drink.
13. During the trial on 2 November 1981, the Regional Court stayed
the proceedings in respect of the first two charges under
Article 154 § 2 of the Code of Criminal Procedure (see paragraph 19
below), on the ground that the sentence which the defendant could
expect was "almost negligible" (nicht beträchtlich ins Gewicht fällt)
compared with the sentence he was likely to be given if convicted on
the other charges.
On the same day, the Regional Court convicted Mr. Englert of the crime
(Verbrechen) of extortion with menaces and sentenced him to one year
and three months' imprisonment; it acquitted him on the rape charge.
The court found that the defendant had given Mr. and Mrs. K shelter.
On 23 February, the couple had drawn DM 325 in welfare benefits.
After buying food, they had spent the evening with the applicant and
had had a few drinks at his home. After Mr. K. had fallen asleep,
Mr. Englert made Mrs. K. give him DM 150, threatening that he would
kill her if she refused. The next day, the couple reported the matter
to the police. As regards the allegation of rape, the court found,
having regard to a medical report, that it could not be ruled out that
the victim, who was mentally handicapped, had not shown her will to
resist clearly enough for it to be noticed by the applicant.
The acquittal became final on 10 November 1981.
14. On 4 November 1981, Mr. Englert appealed on points of law
against conviction; he filed full pleadings on 25 January 1982.
On 6 April 1982, the Federal Court of Justice (Bundesgerichtshof) set
the judgment aside and remitted the case for retrial by a different
criminal chamber of the Heilbronn Regional Court. It found that the
Regional Court had not heard evidence from a parish priest whom,
according to the defence, Mrs. K had told that she had consented to
sexual intercourse with the applicant. The Federal Court held that
despite the applicant's acquittal on the rape charge, the witness
should have been heard because his evidence might have put Mrs. K's
credibility in doubt in respect of all the charges.
15. On 5 August 1982, the priest informed the police that he could
not give evidence unless Mrs. K released him from his obligation of
professional confidentiality. Mrs. K, who had left her husband in the
meantime, refused to do this.
16. On 1 September 1982, the public prosecutor's office applied
for the proceedings to be stayed under Article 154 of the Code of
Criminal Procedure (see paragraph 19 below), as the sentence
Mr. Englert could expect was almost negligible in comparison with the
one passed on him in August 1981 (see paragraph 11 above). Having
been invited to make any comments he might have, the defence counsel
assigned by the court, Mr. Wingerter, informed the Regional Court on
9 September that he could agree on the defendant's behalf to
Mr. Englert's bearing his own necessary costs and expenses (notwendige
Auslagen) but that his client had no intention of forgoing
compensation for his detention on remand.
17. On 13 September 1982, the Regional Court stayed the
proceedings under Article 154 § 2 of the Code of Criminal Procedure;
it ordered that the costs of the proceedings - but not Mr. Englert's
necessary costs and expenses - should be borne by the Treasury, and it
refused to award the applicant any compensation in respect of his
arrest on 24 February 1981 and of his detention on remand from
25 February 1981 to 12 October 1982.
The reasons for the decision (Beschluss) included the following:
"...
The costs of the proceedings shall be borne by the Treasury, pursuant
to Articles 464 and 467 § 1 of the Code of Criminal Procedure, but the
court will not order the Treasury to pay the defendant's necessary
costs and expenses. Counsel for Mr. Englert stated on his client's
behalf that he - Mr. Englert - agreed to bear these. Moreover, it
would have been fair, having regard to all the circumstances of the
case, to order the person convicted to pay his own necessary costs and
expenses. The same reasons are relevant here as justify the refusal
of compensation for the time spent in detention on remand.
Mr. Englert made known through his counsel that he was not prepared to
forgo [such] compensation ... He cannot, however, claim compensation
for the time he spent in detention on remand in the instant case. In
the light of the course of the trial so far, the circumstances
rebutting the presumption of innocence are, in the view of the
Chamber, so overwhelming that a conviction is clearly more likely than
an acquittal (Bei Würdigung des bisherigen Prozessgeschehens
überwiegen nach Ansicht der Kammer die Umstände, welche die
Unschuldsvermutung entkräften, derart, dass eine Verurteilung deutlich
wahrscheinlicher ist als ein Freispruch). Furthermore, Mr. Englert
- even if he were acquitted - could not be compensated for his
detention, since it was his own actions that gave rise to the strong
suspicion that he had committed an offence of extortion with menaces.
On the morning of 24 February 1981, [he] stated that Mrs. K had given
him only DM 100, which he had spent while shopping that morning in
Heilbronn, except for DM 20 that were found at his home. After Mrs. K
had said, when a statement was taken from her on the afternoon of
24 February, that Mr. Englert had put the DM 150 he had extorted from her
into his swimming costume, [he] was searched, and a DM 100 note was
indeed found in his swimming costume, as [she] had said. Not until
22 April 1981, when the investigating judge (Haftrichter) questioned him,
did Mr. Englert explain how he came to have a DM 100 note belonging,
as he admitted, to Mrs. K. The reasons why that explanation is
unconvincing were set out in detail by the 3rd Criminal Chamber in its
judgment of 2 November 1981. Even if the version offered by
Mr. Englert was true, however, it has to be said against him that he
himself prompted the criminal proceedings by his grossly negligent
(grob fahrlässig) behaviour, for he failed to consider the obvious and
elementary fact that he could be proved to have lied about the money
in his possession and that this would provide evidence of the
credibility of Mrs. K's statements and his own lack of credibility.
Compensation must therefore be refused him, in accordance with
section 5(2) of the Criminal Proceedings (Compensation) Act (Gesetz
über die Entschädigung für Strafverfolgungsmassnahmen)."
The Regional Court pointed out, lastly, that as no appeal lay
(Unanfechtbarkeit) against the order staying the proceedings, the
decision on costs and on compensation for detention on remand was
likewise final.
18. On 20 September 1982, the applicant appealed against the
refusal to award him compensation for his detention on remand. His
lawyer's pleadings consisted of a single sentence: "On behalf of the
defendant, I appeal against point III of the ... decision of
13 September 1982."
The Stuttgart Court of Appeal (Oberlandesgericht) declared this appeal
(Beschwerde) inadmissible on 30 September. It held, inter alia :
"The ... application is directed solely against the refusal to award
compensation. No appeal is provided for in law (nicht statthaft) and
the application is therefore inadmissible.
The provisional stay of the proceedings under Article 154 § 2 of the
Code of Criminal Procedure is a decision which terminates the
proceedings, since it was taken on account of a penalty or measure
imposed in respect of another offence and which had already become
final. In such circumstances, the proceedings can only be reopened,
under Article 154 § 3 of the Code of Criminal Procedure, if they have
not become time-barred and if the penalty or measure which gave rise
to the stay has since been lifted. The provisional stay amounts here
to a final ruling putting an end to the proceedings. It is thus a
decision which, under Article 464 §§ 1 and 2 of the Code of Criminal
Procedure, requires another one to be taken as to the costs and
expenses and, on to the same criteria, ... as to any compensation due
in respect of the criminal prosecution brought ...
The decision delivered pursuant to Article 154 § 2 of the Code of
Criminal Procedure is unappealable. So too are the ancillary
decisions (Nebenentscheidungen) delivered at the same time as the
principal decision ... These include not only the one as to costs and
expenses but also the one as to compensation in respect of the
criminal prosecution ... The decision delivered by the Regional Court
with regard to compensation is thus not appealable ..."
II. Relevant domestic law
19. Article 154 of the Code of Criminal Procedure, on which the
Heilbronn Regional Court based its decision of 13 December 1982,
provides:
"1. The public prosecutor may decide not to prosecute
(1) where the penalty or the corrective or preventive measure to be
expected if a conviction is secured is almost negligible in comparison
with a penalty or corrective or preventive measure imposed on the
defendant - or which he must expect to be imposed - for another
offence ...
...
2. Once proceedings have been instituted, the court may
provisionally stay them at any stage on an application by the public
prosecutor.
...."
20. By the terms of Article 464 of the Code of Criminal Procedure,
any judgment, order of summary punishment or decision terminating a
set of proceedings must determine who is to pay the costs of the
proceedings (paragraph 1); the judgment or decision in which the
proceedings culminate shall state who is to bear the necessary costs
and expenses (paragraph 2).
Article 467 of the Code of Criminal Procedure provides:
"1. If the defendant (Angeschuldigter) is acquitted or if committal
for trial (Hauptverfahren) is refused or if the proceedings against
him are discontinued, the costs of the proceedings and the defendant's
necessary costs and expenses shall be borne by the Treasury.
...
3. ... The court may decline to award the defendant's necessary
costs and expenses against the Treasury where the defendant
(1) has brought about the proceedings (Erhebung der öffentlichen
Klage) by incriminating himself in vital matters through statements
which were inaccurate or contrary to subsequent statements by him or
by withholding vital exonerating information, even though he had
formally replied to the charge (Beschuldigung) ....
...
4. If the court stays the proceedings in pursuance of a provision
which empowers it to do so, it may decide not to order the Treasury to
bear the defendant's necessary costs and expenses.
..."
Inasmuch as the law does not make the reimbursement of necessary costs
and expenses mandatory, the courts decide the issue on an equitable
basis and have a degree of discretion in the matter.
21. By section 2(1) of the Criminal Proceedings (Compensation) Act
of 8 March 1971, any person who has suffered prejudice by reason of
having been detained on remand shall be indemnified by the Treasury in
the event of his being acquitted or if the proceedings brought against
him are discontinued. This rule is, however, subject to certain
exceptions, including the one laid down in section 5(2) of the Act,
which provides:
"Compensation shall not be payable ... where and in so far as the
defendant brought about the criminal proceedings deliberately or
through gross negligence. Compensation shall not be precluded by
reason only of the fact that the defendant merely did not respond to
the charge or charges or that he failed to avail himself of a remedy."
By section 8 of the same Act, the competent court shall give a ruling
on indemnification in the judgment or the decision terminating
proceedings.
22. The scope of the principle of the presumption of innocence in
the context of discontinuance of criminal proceedings has recently
been clarified by the Federal Constitutional Court. By a judgment
(Beschluss) delivered on 26 March 1987, the Federal Constitutional
Court quashed, as contravening the principle, two decisions by
district courts and one decision by a regional court whereby the
courts, having held the guilt of the defendants to be insignificant
(gering), had stayed the private prosecutions brought against them but
had awarded the costs of the proceedings against the defendants,
including the costs and expenses of the complainants (cases
2 Bvr 589/79, 2 Bvr 740/81 and 2 Bvr 284/85, Europäische
Grundrechte-Zeitschrift 1987, pp. 203-209).
The Constitutional Court held it to be inconsistent with the
presumption of innocence to speak in the reasons given for a
discontinuance decision of a defendant's guilt or to base an order as
to costs and expenses on the supposition (Annahme) that a defendant
has been guilty of an offence if the trial has not reached the stage
at which the verdict can be given (Schuldspruchreife). It pointed out
that the principle of the presumption of innocence derived from the
principle of the rule of law, and it also referred to Article 6 § 2
(art. 6-2) of the Convention. The Convention did not have the status
of constitutional law in the Federal Republic, but regard should be
had to it and to the case-law of the European Court of Human Rights in
interpreting the principles and fundamental rights enshrined in the
Basic Law (Grundgesetz).
Reaffirming its case-law, the Constitutional Court reiterated that, by
virtue of the principle of the presumption of innocence, no measures
amounting in effect to a penalty may be taken against a defendant
without his guilt having been established beforehand at a proper trial
and no defendant may be treated as guilty. The Court added that this
principle requires that guilt be proved according to law before it can
be held against the person concerned. A finding of guilt will
accordingly not be legitimate for this purpose unless it is pronounced
at the close of a trial which has reached the stage at which a verdict
can be given.
Citing the Minelli judgment of 25 March 1983 (Series A no. 62), the
Constitutional Court ruled that a decision discontinuing criminal
proceedings may offend the presumption of innocence if it contains in
its reasoning a finding of the defendant's guilt without that guilt
having been proved according to law. On the other hand, nothing
precluded a court from making findings in such a decision as to the
defendant's guilt and ordering him to pay the necessary costs and
expenses of the complainants as well as the costs of the proceedings
if it had held a hearing enabling it to reach a verdict
(Entscheidungsreife).
On the basis of these considerations, the Constitutional Court quashed
three of the five decisions challenged but dismissed the application
in the first of the three cases concerned, as the defence had made the
closing address after a trial.
PROCEEDINGS BEFORE THE COMMISSION
23. In his application of 13 October 1982 to the Commission
(no. 10282/83), Mr. Englert complained of the reasons given by the
Heilbronn Regional Court in its decision of 13 September 1982, which
he alleged were incompatible with Article 6 § 2 (art. 6-2) of the
Convention.
24. The Commission declared the application admissible on
12 December 1984.
In its report of 9 October 1985 (made under Article 31) (art. 31), the
Commission expressed the unanimous opinion that there had been a
breach of Article 6 § 2 (art. 6-2). The full text of its opinion is
reproduced as an annex to the present judgment.
FINAL SUBMISSIONS BY THOSE APPEARING BEFORE THE COURT
25. In their memorial of 17 November 1986, the Government
requested the Court to hold
"1. ... that by reason of the failure to exhaust domestic remedies,
the Court is unable to take cognisance of the merits of the case,
2. alternatively, ... that there has been no violation of
Article 6 § 2 (art. 6-2) of the Convention."
They reiterated their submissions at the hearing.
Counsel for Mr. Englert asked the Court at the hearing to give
judgment for his client.
AS TO THE LAW
26. Mr. Englert complained of the reasons given for the decision
of the Heilbronn Regional Court, which on 13 September 1982 had
refused to order reimbursement of his necessary costs and expenses and
to award him any compensation in respect of his detention on remand.
He claimed that they offended the principle of the presumption of
innocence enshrined in Article 6 § 2 (art. 6-2) of the Convention,
which provides:
"Everyone charged with a criminal offence shall be presumed innocent
until proved guilty according to law."
The Government submitted that the application was inadmissible by
reason of non-exhaustion of domestic remedies and, in the alternative,
that there had been no breach of Article 6 § 2 (art. 6-2).
The Commission shared the view of the applicant.
I. GOVERNMENT'S PRELIMINARY OBJECTION
27. The Government claimed that the applicant had not, as required
under Article 26 (art. 26) of the Convention, exhausted the remedies
available to him under German law, as he had neither brought his
complaint about the failure to reimburse his necessary costs and
expenses before the Stuttgart Court of Appeal nor applied to the
Federal Constitutional Court.
28. Having raised this objection before the Commission at the
stage of the initial examination of admissibility and again
subsequently, the Government are not estopped from pleading it before
the Court (see, as the most recent authority, the Bozano judgment of
18 December 1986, Series A no. 111, p. 19, § 44).
A. First ground of the objection (Stuttgart Court of Appeal)
29. The applicant's appeal to the Stuttgart Court of Appeal was
restricted to the issue of compensation for detention on remand.
However, in dismissing it (on the ground that no appeal was provided
for in law and that it was thus inadmissible), the Court of Appeal
stated that the finality of the decision that put an end to the
proceedings extended also to the ancillary decisions, which included
not only the one as to costs and expenses but also the one as to
compensation in respect of the criminal prosecution (see paragraph 18
above). Above all, the Regional Court itself had pointed out that its
decision as to costs and to compensation for detention on remand was
final because the order staying the proceedings was unappealable
(see paragraph 17 above).
30. The Government, however, emphasised that the German appellate
courts did not always give the same answer to the question whether, in
the event of proceedings being discontinued, an appeal lay against an
order as to the apportionment of costs. The applicant, they
maintained, should consequently have challenged in the Stuttgart Court
of Appeal the refusal to order reimbursement of his necessary costs
and expenses.
It must be noted in this connection that the appellate court which in
principle had jurisdiction in the instant case was indeed the
Stuttgart Court of Appeal. Although that Court had indeed allowed an
appeal in 1969 against an order as to costs after proceedings had been
discontinued, it departed from that precedent in a judgment
of 22 February 1974 (Die Justiz 1974, p. 228), as the Government
acknowledged. Admittedly these judgments were given by two different
chambers of the Court of Appeal, but the Government did not produce
any decision upholding the 1969 one subsequent to the judgment
of 22 February 1974. That being so, the generally recognised rules of
international law which are referred to in Article 26 (art. 26) (see
the Guzzardi judgment of 6 November 1980, Series A no. 39, p. 26,
§ 72) do not require the applicant to have raised the matter in the
Court of Appeal.
31. The Government further maintained that in the Court of Appeal
the applicant should have pleaded Article 6 § 2 (art. 6-2), which is
directly applicable in German law. In failing to do so, he had not
given the court an opportunity to determine whether "exceptionally,
... the separate contestation of the decision on expenses could be
regarded as admissible".
Article 26 (art. 26) requires of applicants that they should - at
least in substance - have raised before the domestic courts the
complaint they subsequently submit to the Convention institutions (see
the Glasenapp judgment of 28 August 1986, Series A no. 104, p. 24,
§ 44). Mr. Englert's appeal, however, was limited to Mr. Wingerter's
single sentence : "On behalf of the defendant, I appeal against point
III of the ... decision of 13 September 1982" (see paragraph 18
above). It contained no reasons and gave no hint that the applicant
meant to challenge the Heilbronn Regional Court's decision on the
ground that it contravened the principle of the presumption of
innocence.
However, the Court does not need to determine whether in the instant
case this was sufficient for the purposes of Article 26 (art. 26) of
the Convention in view of the relevant rules of German law, because in
order for the applicant to be able to complain of a breach of
Article 6 § 2 (art. 6-2) it was first necessary that a remedy should
be available - and it has just been pointed out in the present
judgment that this was precisely what was lacking (see
paragraphs 29-30 above).
B. Second ground of the objection (Federal Constitutional Court)
32. Mr. Englert did not apply to the Federal Constitutional Court
in order to challenge the Heilbronn Regional Court's decision on the
ground that it offended the presumption of innocence; such an
application seemed to him to be bound to fail.
The only remedies that Article 26 (art. 26) of the Convention requires
to be exhausted are those that relate to the breaches alleged and that
are available and sufficient (see the de Jong, Baljet and van den
Brink judgment of 22 May 1984, Series A no. 77, p. 19, § 39). While it
was possible for the applicant to bring his complaint before the
Constitutional Court (under Article 93 § 1, sub-paragraph 4, (a), of
the Basic Law), such a remedy would not have been effective in the
circumstances of the case. As the Commission pointed out, the
Government did not cite any decisions by the Constitutional Court
indicating that the applicant could have challenged the reasons given
for the impugned decision with some prospect of success.
On the contrary, as recently as 2 February 1982 the Constitutional
Court had held such a complaint - lodged by the applicant's counsel in
another case - to be inadmissible (Lutz case, judgment 2 BvR 1312/81).
Admittedly what was at issue in that case was a stay of proceedings
instituted in respect of a "regulatory offence"; but the
Constitutional Court, which mentioned Article 6 § 2 (art. 6-2) of the
Convention among other things, did not base its dismissal of the
complaint on the argument that the presumption of innocence was not
applicable. Two judgments given by the Constitutional Court more
recently and produced by those appearing before this Court (2 BvR
790/84 of 20 July 1984 and 2 BvR 889/86 of 29 August 1986) are to the
same effect as the one of 2 February 1982.
The Commission, moreover, dealt with the same issue in the Liebig
case. On 15 July 1976, it rejected a plea of non-exhaustion of
domestic remedies (the applicant had not lodged a constitutional
complaint) in view of the Constitutional Court's case-law on the
matter under consideration (see Decisions and Reports, no. 5, pp. 65
and 67).
Lastly, the Constitutional Court's judgment of 26 March 1987, produced
by the Government on 13 May 1987, does not support their argument
either: it relates to the discontinuance of a private prosecution on
account of the "slight degree of guilt" of the persons concerned, who
were ordered to pay the costs of the proceedings and the necessary
costs and expenses of the complainants (see paragraph 22 above). It
is thus very clearly distinguishable from the instant case, being
comparable rather to the situation the Court had to consider in the
Minelli case (see the judgment of 25 March 1983, Series A no. 62).
C. Conclusion
33. In short, the objection pleading non-exhaustion of domestic
remedies is unfounded.
II. ALLEGED VIOLATION OF ARTICLE 6 § 2 (art. 6-2)
34. In Mr. Englert's submission, the Heilbronn Regional Court's
decision of 13 September 1982 manifestly contained a finding of guilt
and thus amounted to a "conviction in disguise".
In the Government's submission, the decision terminated the
prosecution in the interests of avoiding unnecessary proceedings; that
being so, they claimed that there was no longer a person "charged with
a criminal offence" and an essential condition of the applicability of
Article 6 § 2 (art. 6-2) accordingly no longer existed. Furthermore,
the decision did not amount to a penalty or a measure which in its
effects could be equated with a penalty. The reasons given for it did
not imply any assessment of the defendant's guilt: having regard to
the state of the proceedings, the Regional Court was describing a
"state of suspicion" with the sole aim of reaching a fair decision on
the two issues in question. Moreover, it had refused the applicant's
request on the ground that his conduct had given rise to suspicions
earlier which had prompted his prosecution and his detention on
remand; the sentence complained of by Mr. Englert had no "autonomous
meaning" and had to be understood in this general context. Besides,
where a prosecution was discontinued, the Convention did not oblige
the Contracting States to indemnify a person "charged with a criminal
offence" for any detriment he might have suffered. The impugned
decision could not be contrary to the Convention on account of its
supporting reasoning if its operative provisions - which alone
acquired final, binding effect - were in conformity with it.
The Commission considered, like the applicant, that there had been a
breach of Article 6 § 2 (art. 6-2), as the reasoning complained of
could not be understood as describing merely a "state of suspicion".
35. On 13 September 1982, the Heilbronn Regional Court stayed the
proceedings against Mr. Englert on the ground that the sentence he
could expect was of no account in comparison with the one he was
serving at the time in respect of other offences (Article 154 § 2 of
the Code of Criminal Procedure - see paragraphs 17 and 19 above). As
required by Articles 464 and 467 § 1 of the Code of Criminal Procedure
and sections 5(2) and 8 of the Criminal Proceedings (Compensation)
Act, the same decision also settled the issue of costs and the
question of awarding the applicant compensation for his detention on
remand (see paragraphs 17, 20 and 21 above). The apportionment of
costs and the ruling on compensation were consequences and necessary
concomitants of the stay of proceedings (Article 464 of the Code of
Criminal Procedure and section 8 of the Criminal Proceedings
(Compensation) Act - see paragraphs 20-21 above; see also, mutatis
mutandis, the Minelli judgment previously cited, Series A no. 62,
p. 16, § 30). The operative provisions of the decision clearly
confirmed this: after an initial ruling that the proceedings were to
be stayed, the other two dealt with the costs of the proceedings
(including the applicant's own necessary costs and expenses) and
compensation for his detention on remand. Consequently, the applicant
can in principle rely on Article 6 § 2 (art. 6-2) of the Convention as
regards the impugned decision.
36. The Court points out, however, like the Commission and the
Government, that neither Article 6 § 2 (art. 6-2) nor any other
provision of the Convention gives a person "charged with a criminal
offence" a right to reimbursement of his costs or a right to
compensation for lawful detention on remand where proceedings taken
against him are discontinued. The double refusal complained of by
Mr. Englert accordingly does not in itself offend the presumption of
innocence (see, mutatis mutandis, the Minelli judgment previously
cited, p. 17, §§ 34-35). Counsel for the applicant moreover stated
that his client was not challenging the Regional Court's decision as
such but solely the reasons given for it.
37. Nevertheless, a decision whereby compensation for detention on
remand and reimbursement of an accused's necessary costs and expenses
are refused following termination of proceedings may raise an issue
under Article 6 § 2 (art. 6-2) if supporting reasoning which cannot be
dissociated from the operative provisions (see the same judgment,
p. 18, § 38) amounts in substance to a determination of the accused's
guilt without his having previously been proved guilty according to
law and, in particular, without his having had an opportunity to
exercise the rights of the defence (ibid., § 37).
38. The double refusal complained of by Mr. Englert was based on
Article 467 § 4 of the Code of Criminal Procedure and section 5(2) of
the Criminal Proceedings (Compensation) Act (see paragraphs 20-21
above). These provisions set forth exceptions to the rule in German
law that, where criminal proceedings are discontinued, the Treasury
must bear the necessary costs and expenses of the defendant
(Article 467 § 1 of the same Code) and pay him compensation for any
detention on remand (section 2 of the same Act). Applying the
provisions means that the relevant courts, which decide the matter on
an equitable basis and have a degree of discretion, are under an
obligation to take into account, inter alia, the state of the
proceedings when brought to a close, the conduct of the defendant and
the weight of the suspicion still falling on him.
39. The Heilbronn Regional Court refused to award Mr. Englert's
necessary costs and expenses against the Treasury. Mr. Englert's
counsel had indicated that his client was willing to pay his own
costs; furthermore, the Regional Court stated, "it would have been
fair, having regard to all the circumstances of the case, to order
[him to bear them]" - for "the same reasons ... as justify the refusal
of compensation for the time spent in detention on remand" (see
paragraph 17 above). In this connection, the Regional Court found
that "in the light of the course of the trial so far, the
circumstances rebutting the presumption of innocence are ... so
overwhelming that a conviction is clearly more likely than an
acquittal". Lastly, "it was [the defendant's] own actions that gave
rise to the strong suspicion that he had committed a crime of
extortion with menaces" (ibid.).
The court thereby meant to indicate, as it had to for the purposes of
the decision to be taken, that there were still strong suspicions
concerning Mr. Englert, who by his own behaviour had caused the
criminal proceedings to be taken against him. Even if the terms used
were ambiguous and unsatisfactory, the court confined itself in
substance to noting the existence of "reasonable suspicion" that the
defendant had "committed an offence" (Article 5 § 1 (c) of the
Convention) (art. 5-1-c). On the basis of the evidence, the decision
described a "state of suspicion" and did not contain any finding of
guilt. In this respect it contrasts with the decisions the Court
considered in the Minelli case (see the judgment previously cited,
Series A no. 62, pp. 8-10, §§ 12-14, and pp. 11-12, § 16) and also
with the decisions set aside by the Federal Constitutional Court
on 26 March 1987 (see paragraph 22 above).
40. Moreover, the refusal to order reimbursement of Mr. Englert's
necessary costs and expenses and to award him any compensation in
respect of his detention on remand does not amount to a penalty or a
measure that can be equated with a penalty. In this respect too, the
instant case very clearly differs from the Minelli case, as also from
the cases decided by the Federal Constitutional Court on 26 March 1987
(see paragraph 22 above). The Swiss courts had directed that
Mr. Minelli should bear part of the costs of the proceedings and had
ordered him to pay the private prosecutors compensation in respect of
their expenses (see the judgment previously cited, ibid.), thus
treating him as guilty. Nothing comparable occurred in the instant
case : Mr. Englert did not have to bear the costs of the proceedings
but only his own costs and expenses, and he was not awarded any
compensation for his detention on remand. The competent court, acting
on an equitable basis and having regard, among other things, to the
strong suspicions which seemed to it to exist concerning him, did not
impose any sanction on him but merely refused to order that the said
costs and expenses or any compensation should be paid out of public
funds. And, as the Court has already pointed out, the Convention
- more particularly Article 6 § 2 (art. 6-2) - does not oblige the
Contracting States, where a prosecution has been discontinued, to
indemnify a person "charged with a criminal offence" for any detriment
he may have suffered.
41. In conclusion, the Heilbronn Regional Court's decision of
13 September 1982 did not offend the presumption of innocence
guaranteed to the applicant under Article 6 § 2 (art. 6-2).
FOR THESE REASONS, THE COURT
1. Rejects unanimously the objection pleading non-exhaustion of
domestic remedies;
2. Holds by sixteen votes to one that there has been no breach of
Article 6 § 2 (art. 6-2).
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 25 August 1987.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 § 2 (art. 51-2) of the Convention and
Rule 52 § 2 of the Rules of Court, the dissenting opinion of
Mr. Cremona is annexed to this judgment.
Initialled: R. R.
Initialled: M.-A. E.
DISSENTING OPINION OF JUDGE CREMONA
Whilst agreeing with the judgment as to the rejection of the
Government's preliminary objection, I regret I cannot do the same with
regard to the conclusion that there was no violation of Article 6 § 2
(art. 6-2) of the Convention in the instant case. Instead, I concur
with the unanimous Commission that there was.
In order to clear the ground at once of certain matters, I would
premise the following:
1. Firstly, I concur with the judgment that neither Article 6 § 2
(art. 6-2) nor any other provision of the Convention gives a person
charged with a criminal offence a right to reimbursement of his costs
and expenses or a right to compensation for his lawful detention on
remand where proceedings taken against him are discontinued, and that
the domestic court's refusal to order such reimbursement or award such
compensation does not therefore in itself offend the presumption of
innocence (paragraph 36 of the judgment).
2. Secondly, I also concur with the judgment that a decision
refusing such reimbursement or compensation following a stay of
proceedings may, however, raise an issue under Article 6 § 2
(art. 6-2) if supporting reasoning which cannot be dissociated from
the operative provisions amounts in substance to a determination
(constat) of the accused's guilt (which I understand in the sense of
an assessment of his guilt) without his having previously been proved
guilty according to law and in particular without his having had an
opportunity to exercise his defence rights (paragraph 37 of the
judgment).
Having premised that, I consider that the conclusion of non-violation
in this judgment rests essentially on two points:
(a) that the contested judicial pronouncements of the domestic court
described only "a state of suspicion" and did not involve a finding of
guilt (paragraph 39 of the judgment), and
(b) that the court's refusal to order reimbursement of the accused's
necessary costs and expenses and to award any compensation in respect
of his detention on remand did not amount to a penalty or a measure
which could be equated with a penalty (paragraph 40 of the judgment).
As to the first point, clearly an element of suspicion is inherent in
the very fact that a person is criminally charged, but that is of
course inseparable from the essential machinery of the criminal trial
itself. In fact, among the cases where a person may be deprived of
his liberty, provided this is done in accordance with a procedure
prescribed by law, the Convention itself mentions "the lawful arrest
and detention of a person effected for the purpose of bringing him
before the competent authority on reasonable suspicion of having
committed an offence" (Article 5 § 1 (c)) (art. 5-1-c).
In the present case, however, the clear and explicit wording used by
the court in its judicial decision concerning the applicant, who was
charged with a criminal offence, goes much further than that.
In fact, the decision of the Regional Court of Heilbronn, in staying
the proceedings against the applicant and concurrently refusing to
order reimbursement of his costs and expenses and indemnification in
respect of his detention on remand under the applicable domestic
legislation, stated, in terms which, unlike my colleagues, I find
unambiguous, that "in the light of the course of the trial so far, the
circumstances rebutting the presumption of innocence are ... so
overwhelming that a conviction is clearly more likely than an
acquittal". Here the wording used, quite clear in itself, not only
speaks of a probable conviction which is also represented as clear
(and of course a conviction necessarily postulates guilt), but also
actually refers to the presumption of innocence, to conclude in
express terms that it is rebutted by overwhelming circumstances, which
are obviously taken as proved. In actual fact, therefore, and indeed
in express terms, we have here a judicially declared rebuttal of the
presumption of innocence in criminal proceedings which did not end up
in a conviction but were in fact discontinued.
Thus, in my view, what happened in the instant case is the
materialisation of the situation envisaged in paragraph 37 of the
judgment (see above). Indeed, we have here a judicial decision
discontinuing proceedings for an offence and concurrently refusing
reimbursement of the accused's costs and expenses and indemnification
in respect of his detention on remand, the supporting reasoning of
which (which cannot be dissociated from the operative provisions)
amounts in substance to a determination (constat) of the accused's
guilt (which, as already stated, I understand in the sense of an
assessment thereof) without his having been previously proved guilty
according to law and in particular without his having had an
opportunity to exercise his defence rights.
Like the unanimous Commission, I find that the above reasoning of the
aforesaid court is perfectly capable of being understood as meaning
that the accused was in fact guilty of a criminal offence. Indeed this
is the ordinary meaning conveyed by the wording actually used, and
when it comes to such a basic principle as that of the presumption of
innocence, what really matters is not the possible intent with which
certain words were uttered in a judicial decision concerning the
accused, but the actual meaning of those words to the public at large.
What is decisive is that at the end of the day one is left with the
impression that the court did consider that the applicant was in fact
guilty. The net result is in my view a surrogate conviction of the
accused without the benefit of the protection afforded by
Article 6 § 2 (art. 6-2).
Incidentally, the offending wording at the centre of this case is not
substantially dissimilar from that which was at the centre of the
Minelli case, in which this Court did find a violation of that
provision. An attempt has been made to distinguish the two cases on
the basis of a "punishment content", and this brings me to the second
point on which the finding of non-violation in the present judgment
relies.
As to this question of the absence of a penalty or a measure which can
be equated with one, I would say that of course the application of
such penalty or measure would have reinforced my conclusion, but
absence thereof in no way invalidates it. The principle of the
presumption of innocence can be violated independently of the
application of such penalty or measure. That presumption accompanies
a person charged with a criminal offence throughout the whole trial
until conviction. Indeed this cardinal principle of the modern
criminal trial would have been lamentably improvident if its scope had
to be confined to the non-application of a penalty or, to use again
the wording of the judgment, a measure which can be equated with one.
Punishment is usually only the last stage in the unfolding of a
criminal trial and modern criminal legislation also envisages
convictions without punishment or a measure which can be equated with
it (cf. for instance in the British system "absolute discharge").
What is decisive for the present purpose is not the non-application of
punishment, but the fact of a judicial assessment of the applicant's
guilt, and in the instant case it is this that the wording of the
judicial decision in question in fact entails.
I therefore find a violation of Article 6 § 2 (art. 6-2) of the
Convention.