European Court of Human Rights

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).

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).

The President twice extended the first of these time-limits - on 3 July until 31 October, and on 10 November until 21 November 1986.

There appeared before the Court:

- for the Government

       Mrs. I. Maier, Ministerialdirigentin,

                            Federal Ministry of Justice,                                         Agent,

       Mr. P.-G. Pötz, Ministerialdirigent,

                            Federal Ministry of Justice,

       Mr. H. Stöcker, Ministerialrat,

                            Federal Ministry of Justice,

       Mr. E. Göhler, Ministerialrat,

                            Federal Ministry of Justice,                                    Advisers;

- for the Commission

       Mr. A. Weitzel,                                                                        Delegate;

- for the applicant

       Mr. N. Wingerter, Rechtsanwalt,

       Mr. V. Hohbach, Rechtsanwalt,                                               Counsel.

The Court heard addresses by Mrs. Maier for the Government, by Mr. Weitzel for the Commission and by Mr. Wingerter and Mr. Hohbach for the applicant, as well as their replies to its questions.

AS TO THE FACTS

I.   PARTICULAR CIRCUMSTANCES OF THE CASE

When he was questioned, the applicant made the following statement:

"At about 4.30 p.m. today, I was driving southwards along Hohenloher Strasse, Heilbronn-Horkheim.

Near the junction with Amsterdamer Strasse, I noticed a red car - which had its left indicator flashing - about to pull away from the kerb.

I was about to overtake on the left of this vehicle when it not only moved forward onto the road but turned further to the left in order to make a U-turn.

[It] was making its U-turn and was on the point of moving into the opposite carriageway (Gegenfahrspur) when I was still about ten yards behind it. As I was not expecting it to make a U-turn, I was intending to overtake it on the left.

By the time I realised that this was no longer possible, I had already moved over quite far to the left and I tried to brake but could not avoid colliding with the car, which by now was at right angles to the flow of traffic.

I was wearing a crash helmet when the accident occurred; I was not injured."

The decision was based on section 24 of the Road Traffic Act (Strassenverkehrsgesetz - see paragraph 38 below) and Regulations 1(2), 5 and 49 of the Road Traffic Regulations (Strassenverkehrs- Ordnung). Regulation 1(2) reads:

"All road-users have a duty to conduct themselves in such a manner as not to harm or jeopardise others or inconvenience or annoy them more than may be inevitable in the circumstances."

Regulation 5 provides that motorists must overtake on the left (paragraph 1), that they may overtake only if they can see that they will not thereby interfere with oncoming traffic (paragraph 2) and that no overtaking is allowed in an unclear traffic situation (paragraph 3(1)).

By Regulation 49(1)(1) and 49(5), it is a "regulatory offence" (Ordnungswidrigkeit) to contravene Regulations 1(2) and 5(1) to (3); under section 24(2) of the Road Traffic Act, such an offence is punishable by a fine.

On 24 July 1981, the court informed the applicant that it intended to discontinue the proceedings as they were time-barred and order costs against the Treasury (Staatskasse), while the applicant would have to bear his own necessary costs and expenses (notwendige Auslagen).

On 12 August, Mr. Wingerter replied that his client naturally agreed to the stay of proceedings, but not to an order requiring him to bear his own necessary costs and expenses; and he referred among other things to "the presumption of innocence, secured in the Convention on Human Rights".

"In the ‘regulatory offence’ matter (Bussgeldsache)

against ... Uli Lutz

concerning a breach of the Road Traffic Regulations,

 ...

the proceedings shall be stayed.

The costs of the proceedings shall be borne by the Treasury. The defendant shall bear his own necessary costs and expenses.

Reasons:

On 9 December 1980, the Heilbronn Police Authority took a decision to impose a fine (Bussgeldbescheid) on the defendant for a breach of the Road Traffic Regulations. The defendant appealed against this decision. By an order made on 27 January 1981, the public prosecutor’s office in Heilbronn forwarded the case to the Heilbronn District Court for a decision. After the case had been submitted, prosecution of the ‘regulatory offence’ became time-barred under section 26(4) of the Road Traffic Act. The proceedings must therefore be stayed by reason of there being a technical bar to prosecution (Verfolgungshindernis), in accordance with Article 206a of the Code of Criminal Procedure, taken together with section 46 of the Act on ‘regulatory offences’ (Gesetz über Ordnungswidrigkeiten) [see paragraph 19 below].

The decision on costs is based on Article 467 of the Code of Criminal Procedure, taken together with section 46 of the Act on ‘regulatory offences’.

In accordance with Article 467 § 2 [sic], second sentence, of the Code of Criminal Procedure, taken together with section 46 of the Act on ‘regulatory offences’, the court declines to order the Treasury to bear the defendant’s necessary costs and expenses. As the file stands, the defendant would most probably have been convicted of an offence against the Road Traffic Regulations (Nach Lage der Akten wäre der Betroffene mit hoher Wahrscheinlichkeit wegen eines Verstosses gegen die StVO verurteilt worden). That being so, it would be unjust (unbillig to award his necessary costs and expenses against the Treasury."

On 25 September, the Heilbronn Regional Court (Landgericht) dismissed the appeal (sofortige Beschwerde) as being unfounded.

The court held that Article 6 § 2 (art. 6-2) of the Convention did not apply to the case. As it had already explained at length in an earlier decision, Article 6 (art. 6) protected the individual only from possible hazards in civil or criminal trials. This was clear beyond a peradventure from the wording of the provision itself. There was no reason to give Article 6 § 2 (art. 6-2) a broad interpretation such as would extend its application to other proceedings. The Article (art. 6-2) consequently could not apply to proceedings in connection with "regulatory offences", as these had been excluded from the category of criminal offences, and procedure relating to them was quite distinct from criminal procedure. On the basis that Article 6 § 2 (art. 6-2) was not applicable, the District Court had therefore been right to order the defendant to bear his own necessary costs and expenses (under Article 467 § 3, second sentence, sub-paragraph 2, of the Code of Criminal Procedure) because had the prosecution not been statute-barred, "the defendant would almost certainly (mit annähernder Sicherheit) have been found guilty of an offence". He had himself admitted to the police that he was not expecting the car which was moving out to the left onto the road in front of him to make a U-turn; and that he had consequently attempted to overtake it but had been unable to avoid a collision despite his efforts to brake. Mr. Lutz had thus broken the basic rule in Regulation 1(2) of the Road Traffic Regulations and, in particular, had disregarded his duty under Regulation 5(3)(1) not to overtake where the traffic situation was unclear. The court held that in such circumstances it would have been unjust to award the defendant’s necessary costs and expenses against the Treasury, especially as the prosecution had become time-barred only during the course of the court proceedings, so that until that moment the defendant was rightly being proceeded against.

In the Constitutional Court’s view, the decisions of the District Court and the Regional Court did not offend the presumption of innocence, which was founded on the principle of the rule of law and was embodied in Article 6 § 2 (art. 6-2) of the Convention. However strong the suspicions, the presumption of innocence precluded taking measures against a defendant (Beschuldigter) that amounted in effect to a penalty (Strafe) in anticipation of a penalty (im Vorgriff auf die Strafe). This rule was not infringed where the necessary costs and expenses of a party who had been proceeded against in respect of a "regulatory offence" were not awarded against the Treasury in the event of the proceedings being discontinued. The judgment continued:

"The decision not to order the Treasury to pay the costs and expenses of the party concerned obviously cannot be regarded as a punishment (Bestrafung) or even be equated with such. Furthermore, the decision as to costs and expenses pursuant to Article 467 § 3, sub-paragraph 2, of the Code of Criminal Procedure and section 46(1) of the Act on ‘regulatory offences’ does not make any finding that the person concerned is guilty: it derives merely from the suspicion falling on him, which had given rise to his being prosecuted for a ‘regulatory offence’. The reasons for the order as to costs in the impugned decisions are therefore rightly confined to the finding that the defendant would most probably have been found guilty."

II.   RELEVANT DOMESTIC LAW

A. Act on "regulatory offences"

The 1968/1975 Act had been preceded in the Federal Republic by the Act of 25 March 1952 on "regulatory offences" and, to a certain extent, the Economic Crime Act of 26 July 1949 (Wirtschaftsstrafgesetz). It was most recently amended by a statute of 7 July 1986, which entered into force on 1 April 1987.

1. General provisions

If the act constitutes both a "regulatory" and a criminal offence, only the criminal law is applicable; however, if no criminal penalty (Strafe) is imposed, the act may be punished as a "regulatory offence" (section 21).

2. The prosecuting authorities

The public prosecutor’s decision to treat or not to treat an act as a criminal offence is binding on the administrative authorities (section 44).

3. Procedure in general

Once the case has been brought before a court (see paragraphs 29-30 below), power to direct a stay of proceedings rests with the court; any such decision requires the agreement of the public prosecutor and is final (section 47(2)).

4. Preliminary procedure

In the case of a minor offence, the administrative authorities may give the person concerned a warning (Verwarnung) and impose on him an admonitory fine (Verwarnungsgeld); save for any exception laid down under the applicable law, the amount of an admonitory fine ranged from DM 5 to 40 at the relevant time, and since 1 April 1987 has ranged from DM 5 to 75 (section 56(1)). However, sanctions of this kind are possible only if the person concerned consents and pays the fine on the spot or within one week (section 56(2)).

Measures taken by the administrative authorities during the preliminary procedure can in principle be challenged before the courts (section 62).

5. Administrative decision imposing a fine

The person concerned may lodge an objection (Einspruch) within a period which on 1 April 1987 was increased from one week to two weeks (section 67). Unless they withdraw their decision, the administrative authorities will then forward the file to the public prosecutor, who will submit it to the competent District Court and thereupon assume the function of prosecuting authority (sections 68 and 69).

6. Judicial stage (if any) of the procedure

However, the District Court’s ruling may take the form of an order (Beschluss) if the court considers that a hearing is not necessary and provided the public prosecutor or the person concerned does not object (section 72(1)). In that event, it may, inter alia, acquit the person concerned, settle the amount of a fine or terminate the prosecution, but it cannot increase the penalty (section 72(2), now renumbered (3)).

The public prosecutor’s office may be represented at the hearing; if the District Court considers the presence of an official from that office to be appropriate, it will inform the latter accordingly (section 75(1)).

The District Court will give the administrative authorities the opportunity to set out the matters which, in their view, are of importance for the decision to be given; they may address the Court at the hearing, if they so wish (section 76(1)).

7. Administrative procedure and criminal procedure

8. Enforcement of decisions imposing a fine

9. Costs

For the rest, the provisions of the Code of Criminal Procedure regarding payment of the costs of proceedings and of parties’ necessary costs and expenses apply by analogy (Article 464 et seq. of the Code of Criminal Procedure and section 46 of the 1968/1975 Act).

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).

Paragraph 1 and paragraph 3, second sentence, sub-paragraph 2, of Article 467 of the Code of Criminal Procedure, which were applied in the instant case pursuant to section 46 of the 1968/1975 Act, provide:

"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

 ...

(2) has avoided conviction merely because of a technical bar to the proceedings (Verfahrenshindernis)."

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.

B. Road traffic fines

Section 24 of the Road Traffic Act provides:

"1. It shall be a ‘regulatory offence’ wilfully or negligently (vorsätzlich oder fahrlässig) to contravene a provision in a statutory instrument (Rechtsverordnung) made pursuant to section 6(1) or in an order (Anordnung) made pursuant to such a statutory instrument if the statutory instrument concerned refers to the present provision ... in respect of a given offence. Such reference shall not be required where the provision of the statutory instrument was made before 1 January 1969.

2. A ‘regulatory offence’ is punishable by a fine."

The Road Traffic Regulations, which were applied in the instant case, were contained in one of the statutory instruments issued under section 6(1) of the Road Traffic Act.

Section 26(a) of the Road Traffic Act, which was inserted into the Act on 28 December 1982 but has not yet been implemented, provides that the Minister of Transport shall issue such rules with the agreement of the Bundesrat and in the form of a statutory instrument (Rechtsverordnung).

Only certain authorities have access to the register, notably for the purposes of a criminal prosecution or a prosecution for a road traffic "regulatory offence" (section 30).

In Bavaria, which the Government said could be taken as representative of the Federal Republic, there were 1,141,221 decisions imposing a fine in 1985. The percentage of fines of over DM 200 and DM 500 was only 1.3 and 0.1 respectively, as compared with 8.8 for fines of DM 120 to 200, 15 for fines of DM 80 to 119, 22.3 for fines of DM 41 to 79 and 52.5 for fines of DM 5 to 40.

Of the 1,199,802 road traffic offences recorded in 1986, infringements of waiting and parking prohibitions accounted for 49.7 per cent.

C. Case-law of the Federal Constitutional Court relating to the presumption of innocence (judgment - Beschluss - of 26 March 1987)

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

In its report of 18 October 1985 (made under Article 31) (art. 31), it expressed the opinion, by seven votes to five, that there had been a breach of Article 6 § 2 (art. 6-2). The full text of its report and of the three separate opinions contained in the report is reproduced as an annex to the present judgment.

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

"Article 6 § 2 (art. 6-2) of the European Convention on Human Rights is not applicable in the present case and that the Court cannot deal with this case by reason of its incompatibility with the provisions of the Convention;

alternatively,

that the Federal Republic of Germany has not violated Article 6 § 2 (art. 6-2) of the European Convention on Human Rights."

The Government reiterated their submissions at the hearing on 23 February 1987.

AS TO THE LAW

"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

The Government disputed this contention, being of the view that Article 6 § 2 (art. 6-2) was inapplicable and that the application was accordingly incompatible with the provisions of the Convention; in the alternative, they submitted that there had been no breach of Article 6 § 2 (art. 6-2).

The Commission took the opposite view.

I.   THE GOVERNMENT’S PRELIMINARY OBJECTION

Such a complaint is not "clearly outside the provisions of the Convention" (see the judgment of 9 February 1967 in the "Belgian Linguistic" case, Series A no. 5, p. 18); it relates to the Convention’s interpretation and application (Article 45) (art. 45). In order to reach a decision, the Court will have to determine whether Article 6 § 2 (art. 6-2) can be relied on in respect of the decisions complained of. For the Court this is a question going to the merits, which it cannot try merely as a preliminary issue (see, as the most recent authority, the Kosiek judgment of 28 August 1986, Series A no. 105, p. 19, § 32).

II.   ALLEGED VIOLATION OF ARTICLE 6 § 2 (art. 6-2)

A. Applicability of Article 6 § 2 (art. 6-2)

In Mr. Lutz’s submission, on the contrary, its applicability emerged clearly from that judgment.

The Commission agreed: the two cases were similar as to the facts, and the reasoning in that decision was likewise valid in respect of the guarantee in Article 6 § 2 (art. 6-2).

The Court thus proceeded on the basis that in using the terms "criminal charge" (accusation en matière pénale) and "charged with a criminal offence" (accusé, accusé d’une infraction) the three paragraphs of Article 6 (art. 6-1, art. 6-2, art. 6-3) referred to identical situations. It had previously adopted a similar approach to Article 6 § 2 (art. 6-2), albeit in a context that was undeniably a criminal one under the domestic law (see the Adolf judgment of 26 March 1982, Series A no. 49, p. 15, § 30, and the Minelli judgment of 25 March 1983, Series A no. 62, p. 15, § 27). The Government, moreover, have accepted that the words "charged with a criminal offence" have the same meaning in all three paragraphs (art. 6-1, art. 6-2, art. 6-3) and must be interpreted accordingly.

"The first matter to be ascertained is whether or not the text defining the offence in issue belongs, according to the legal system of the respondent State, to criminal law; next, the nature of the offence and, finally, the nature and degree of severity of the penalty that the person concerned risked incurring must be examined, having regard to the object and purpose of Article 6 (art. 6), to the ordinary meaning of the terms of that Article (art. 6) and to the laws of the Contracting States." (Öztürk judgment, Series A no. 73, p. 18, § 50)

Having proceeded according to those principles, it concluded that the general character of the legal provision contravened by Mr. Öztürk and the purpose of the penalty, which was both deterrent and punitive, sufficed to show that the offence in question was, for the purposes of Article 6 (art. 6), criminal in nature (ibid., p. 20, § 53). It held that there was consequently no need to examine Mr. Öztürk’s contravention "also in the light of the final criterion stated ...", for "the relative lack of seriousness of the penalty at stake ... cannot divest an offence of its inherently criminal character" (ibid., p. 21, § 54).

These considerations apply in the instant case too.

The Court points out that the second and third criteria adopted in the judgments in the Engel and Others case and the Öztürk case are alternative and not cumulative ones: for Article 6 (art. 6) to apply in virtue of the words "criminal charge", it suffices that the offence in question should by its nature be "criminal" from the point of view of the Convention, as in the instant case, or should have made the person concerned liable to a sanction which, in its nature and degree of severity, belongs in general to the "criminal" sphere (see also the Campbell and Fell judgment of 28 June 1984, Series A no. 80, pp. 35-38, §§ 69-73).

The Court cannot agree with the Government on this point, any more than the Commission could. No doubt the proceedings against the applicant had become time-barred, but that fact was given judicial recognition by the decision of 24 August 1981 (see paragraph 16 above). This decision also settled the question of costs, as required under Articles 464 and 467 of the Code of Criminal Procedure taken together with section 46 of the Act on "regulatory offences", and left the applicant to bear his own necessary costs and expenses. Apportionment of the costs was a consequence and necessary concomitant of the stay of proceedings (Article 464 of the Code of Criminal Procedure - see paragraph 37 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 and the applicant’s own necessary costs and expenses.

B.  Compliance with Article 6 § 2 (art. 6-2)

In the Government’s submission, the refusal to order the Treasury to bear Mr. Lutz’s necessary costs and expenses did not amount to a penalty or a measure which in its effects could be equated with a penalty. The reasoning given in the decisions complained of did not contain any implied assessment of the defendant’s guilt: the courts were describing a "state of suspicion" with the sole aim of reaching a fair decision as to the payment of costs. Furthermore, 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 decisions could not be contrary to the Convention on account of their supporting reasoning if their 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 very well be understood as suggesting that the applicant not only remained under suspicion of having committed the offence but was guilty of it.

The German courts thereby meant to indicate, as they were required to do for the purposes of the decision, that there were still strong suspicions concerning Mr. Lutz. Even if the terms used may appear ambiguous and unsatisfactory, the courts confined themselves 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, in particular the applicant’s earlier statements (see paragraphs 12, 16 and 17 above), the decisions described a "state of suspicion" and did not contain any finding of guilt. In this respect they contrast with the more substantial, detailed decisions which 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 44 above).

FOR THESE REASONS, THE COURT

1. Rejects unanimously the objection that the application is incompatible with the provisions of the Convention;

2. Holds by fourteen votes to three that Article 6 § 2 (art. 6-2) applies in the instant case;

3. Holds by sixteen votes to one that there has been no breach of this Article (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.

Rolv RYSSDAL

President

Marc-André EISSEN

Registrar

A declaration by Mr. Thór Vilhjálmsson and, in accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 52 § 2 of the Rules of Court, the separate opinions of the following judges are annexed to this judgment:

- dissenting opinion of Mr. Cremona;

- joint dissenting opinion of Mrs. Bindschedler-Robert, Mr. Matscher and Mr. Bernhardt.

R. R.

M.-A. E.