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. H. Stöcker, Ministerialrat, Federal Ministry of Justice,

       Mr. W. Beitlich, Oberstaatsanwalt,                                         Advisers;

- for the Commission

       Mr. A. Weitzel,                                                                        Delegate;

- for the applicant

       Mr. J. Bergemann, Rechtsanwalt,                                           Counsel.

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

AS TO THE FACTS

I. PARTICULAR CIRCUMSTANCES OF THE CASE

On 25 October 1974, Stumm AG ceased payments by reason of insolvency and asked the Essen District Court (Amtsgericht) to set in motion composition proceedings (Vergleichsverfahren).

On 13 November 1974, Mr. Nölkenbockhoff was arrested under a warrant issued by the Essen District Court on 11 November; he was suspected among other things of bankruptcy offences. Other senior managers in the company were also arrested.

The trial hearings began on 29 October 1976 before the 6th Criminal Chamber (6. Grosse Strafkammer) of the Essen Regional Court (Landgericht). They lasted until 11 July 1980, two or three hearings being held each week. The court heard evidence from hundreds of witnesses, and several thousand documents were read out. The applicant’s husband was defended by two counsel, one of whom was assigned by the court.

Mr. Nölkenbockhoff was found guilty inter alia on several charges of breach of trust (Untreue), criminal bankruptcy (Bankrott) and fraud (Betrug), and given an aggregate sentence of eight years’ imprisonment. His four co-defendants were also sentenced to prison terms - two of them, for more or less identical offences and a few additional ones, to nine years, nine months and to eight years, six months respectively; the other two, for aiding and abetting, to four years, three months each. In respect of a series of fraud charges, the Regional Court stayed the proceedings under Article 154 of the Code of Criminal Procedure (see paragraph 23 below); and it acquitted Mr. Nölkenbockhoff and two of his co-defendants on a number of other charges.

In determining the sentences, the Regional Court took into account as extenuating circumstances the length of the proceedings and, in respect of the applicant’s husband, his detention on remand for some three years; this period was deducted from the total sentence.

Three of the co-defendants, who had likewise challenged the Regional Court’s judgment, later withdrew their appeals on points of law; the appeal lodged by the fourth person convicted, Mr. M, was dismissed by the Federal Court on 7 July 1982 as being manifestly ill-founded.

On 30 April 1980, the Essen Regional Court ordered his re-arrest and, at the same time, the arrest of all the co-defendants; as the public prosecutor had made his final submissions, calling for heavy sentences, the court held that the measures taken to prevent the defendants absconding were no longer sufficient.

On 26 June 1981, Mr. Nölkenbockhoff was released on health grounds.

On 5 March 1982, the Essen Regional Court found against Mrs. Nölkenbockhoff. Its decision read as follows:

"...

The applications are admissible ... but ill-founded.

Where proceedings are terminated by reason of a defendant’s death, his necessary costs and expenses are normally borne by the Treasury, but this does not apply where, were it not for this technical bar, the defendant would almost certainly have been convicted or his conviction almost certainly have been upheld (wenn es bei Wegdenken des Verfahrenshindernisses annähernd sicher zu erwarten war, dass es zur Verurteilung des Angeklagten gekommen bzw. bei einer Verurteilung geblieben wäre). This was so in the instant case.

The defendant had already been found guilty, in a judgment that had not become final, after lengthy court proceedings in a trial (Hauptverhandlung) lasting more than three and a half years. The judgment convicting the three co-defendants ..., who were likewise sentenced to several years’ imprisonment, has become final. The co-defendant M is maintaining his appeal on points of law.

The submissions made by the defence in its full pleadings afford no reason to suppose that the defendant would have been acquitted had the proceedings continued. The pleas alleging procedural defects (formelle Rügen) - even assuming them to be well-founded - would have been material to the decision to be taken in the instant case only if, in the event of a new trial, a different verdict on the merits would have been expected, that is to say an acquittal. The fact that [three of] the defendants ... have withdrawn their appeals on points of law, thereby confirming the judgment against them, argues decisively in favour of the correctness (materielle Richtigkeit) of the judgment.

As to the plea alleging a breach of substantive law (materielle Rüge), the defence’s submissions again provide nothing to support the hypothesis that the proceedings were moving towards an acquittal. The quotations from the trial court’s judgment are taken out of context, do not cover the considerations (Erörterungen) subsequently set out by that court in the reasons for its judgment and are accordingly not consistent with its assessment of the case as a whole.

For the same reasons the court declines to award compensation for the time spent in detention on remand, pursuant to section 6(1)(2) of the Criminal Proceedings (Compensation) Act (Gesetz über die Entschädigung für Strafverfolgungsmassnahmen) [see paragraph 26 below].

Nor, to the extent that the proceedings were provisionally stayed under Article 154 of the Code of Criminal Procedure [see paragraph 23 below], are there any grounds for ordering the Treasury to pay the defendant’s necessary costs and expenses, because in view of the reasons given for the judgment, it was much more likely, having regard to the adverse financial position of the Stumm holding company, that if the proceedings had continued, the defendant would have been convicted on the counts in question (weil nach den Ausführungen im Urteil es bei der ungünstigen wirtschaftlichen Situation des Stummkonzerns bei einer Fortsetzung des Verfahrens wesentlich wahrscheinlicher war, dass es insoweit zu einer Verurteilung des Angeklagten gekommen wäre).

That being so, the court does not consider it necessary to defer judgment until a decision has been given on the co-defendant M’s appeal on points of law.

 ...."

The applicant pointed out in addition that from the outset her husband had denied having committed any offences and had indeed been acquitted on several counts. In the light, inter alia, of Article 6 § 2 (art. 6-2) of the Convention, it therefore had to be assumed that in the event of a new trial he would have been acquitted completely. Since criminal law was based on the principle of individual guilt, it was quite simply unacceptable - and, once again, contrary to Article 6 § 2 (art. 6-2) - to judge the deceased by the conduct of three of the co-defendants. In any case, the fact that those co-defendants had withdrawn their appeals on points of law could not be regarded as an admission of guilt; besides, they had held responsibilities within Stumm AG different from those of her husband.

On 28 December 1981, the Bochum public prosecutor submitted that, having regard to the state of the proceedings, there was every likelihood (hohe Wahrscheinlichkeit) that the conviction would have been upheld.

The principal public prosecutor gave his opinion on 11 June 1982. He considered that an assessment of the likely outcome of the proceedings (Prüfung des mutmasslichen Verfahrensausgangs), having regard to the reasons given in the judgment of the Essen Regional Court and the grounds of the appeal on points of law, could lead to only one conclusion. It could be assumed - and, indeed, had to be - that if the proceedings had been continued, the defendant’s conviction would have been upheld. The principal public prosecutor took the view that the outcome of the appeal brought by the co-defendant M and still pending before the Federal Court of Justice was of some relevance in assessing the likely outcome of the proceedings concerning Mr. Nölkenbockhoff, who, according to the aforementioned judgment, had committed his various offences in concert (Mittäterschaft) with the said co-defendant.

It left open the question whether, in the event of a defendant’s death before the final conclusion (rechtskräftiger Abschluss) of criminal proceedings, a decision such as that sought by Mrs. Nölkenbockhoff could be taken, by analogy, under Article 467 § 1 of the Code of Criminal Procedure and section 6(1)(2) of the Criminal Proceedings (Compensation) Act (see paragraphs 24-26 below). And it added:

"Even assuming such decisions are possible (Zulässigkeit), the assessment of the probable outcome of the trial, which must be made in both instances, leads to the conclusion that if the proceedings had been pursued until a final decision was handed down, the former defendant’s conviction would almost certainly (mit annähernder Sicherheit) have been upheld. In order to avoid repetition, reference is made to the reasons given for the contested decision, which are valid (zutreffend). It should be noted in addition that the appeal on points of law of the co-defendant M was subsequently dismissed, on 7 July 1982, by the Federal Court of Justice ... as being manifestly ill-founded. That fact is of particular importance in assessing the prospects of success which ... Mr. Nölkenbockhoff’s appeal would have had, because according to the reasons given for the judgment of 11 July 1980, the offences of which [he] was convicted at first instance were committed together with ... M.

 ...."

On 2 September 1982, the Court of Appeal rejected the objections (Gegenvorstellungen) which the applicant had lodged against the judgment of 14 July 1982.

On 30 September 1982, a bench of three judges of the Constitutional Court refused to entertain the constitutional complaint because it considered that the complaint did not have sufficient prospects of success. The reasons for its decision were as follows:

"1. The presumption of innocence, which is founded on the principle of the rule of law, precludes treating as guilty a person who has not been finally (rechtskräftig) convicted. That does not mean, however, that in every case costs must be reimbursed where the proceedings are terminated without guilt having been established (Schuldnachweis) ...

2. The refusal of the applications for an order that the Treasury should bear the deceased defendant’s necessary costs and expenses is based on Article 467 § 3, second sentence, sub-paragraph 2, of the Code of Criminal Procedure. The decision on the claim for compensation is based on section 6(1)(2) of the Criminal Proceedings (Compensation) Act. Both provisions, whose conformity with the Constitution cannot be doubted, confer on the courts a degree of discretion. There is nothing to suggest that the courts exercised their discretion in a manner contrary to the Constitution.

(a) Admittedly, the decisions being challenged make a prediction of the probable outcome of the proceedings had they been continued. However, such an assessment does not amount to a finding of guilt but merely to a finding of a continuing state of suspicion (Eine derartige Einschätzung enthält indessen nicht die Feststellung einer Schuld, sondern lediglich die Feststellung einer fortbestehenden Verdachtslage). Consequently, it does not offend the presumption of innocence.

(b) Nor was the prediction of the outcome of the proceedings arbitrary in nature.

(aa) Neither the alleged defects ... in the judgment convicting the defendant nor the grounds of the appeal on points of law make it possible to dismiss as untenable the conclusion reached in the contested decisions that a (subsequent) acquittal was unlikely in respect of each of the offences of which the deceased defendant had been convicted. That was the only relevant issue for the order as to costs. The courts’ reference to the lack of success of the appeal proceedings instituted by the co-defendant M and to the withdrawal of the appeals on points of law entered by the other defendants is clearly to be regarded merely as an additional argument, and the impugned decisions are not based on it.

(bb) Nor do the grounds advanced in support of the constitutional complaint show the unreasonableness of the Regional Court’s opinion that, had the proceedings been continued, a conviction would have been more likely than an acquittal ... [in connection with the charge in respect of which the proceedings had been provisionally stayed] ...

 ...."

II. RELEVANT DOMESTIC LAW

"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 in a final decision - 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.

 ...."

Article 467 of the Code of Criminal Procedure further 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

 ...

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

4. If the court stays the proceedings under a provision which leaves this decision to its discretion, 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.

As regards the deceased’s own necessary costs and expenses and indemnification in respect of any time spent by the deceased in detention on remand, the practice of the German courts at the time in question varied. Some courts considered any indemnification to be precluded, whereas others - such as the Essen Regional Court in the present case - applied the relevant provisions of the Code of Criminal Procedure and the Criminal Proceedings (Compensation) Act. On 3 October 1986, the Federal Court of Justice held that, in the absence of any basis in law, the necessary costs and expenses of a defendant who has died before the conviction has become final cannot be awarded out of public funds.

"1. Compensation may be refused wholly or in part where the defendant

 ...

(2) is not convicted of an offence or proceedings are discontinued solely on account of ... a technical bar."

By section 8 of the same Act, the competent court shall give a ruling on indemnification in the judgment or the decision terminating proceedings.

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 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

"1. ... that the Court is not in a position to go into the merits of the case because the applicant is not a ‘victim’ within the meaning of Article 25 (art. 25) of the European Convention on Human Rights;

2. alternatively, ... that there has been no violation of Article 6 § 2 (art. 6-2) of the Convention."

In her memorial of 1 July 1986, the applicant asked the Court to hold that:

"1. Article 6 § 2 (art. 6-2) of the European Convention on Human Rights has been violated by the decisions of 5 March 1982 by the Essen Regional Court and 14 July 1982 by the Hamm Court of Appeal.

2. It is incumbent on the respondent State to refund to the applicant the costs and expenses incurred in the proceedings.

3. It is incumbent on the respondent State to grant just satisfaction to the applicant, the exact amount to be assessed by the Court."

Those appearing before the Court 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 argued in reply that the applicant could not claim to have been a "victim" herself of the violation complained of. In the alternative, they maintained that there had been no breach of Article 6 § 2 (art. 6-2).

The Commission agreed with the applicant’s contentions.

I. ALLEGED LACK OF STANDING AS A "VICTIM"

The Government had previously raised this plea before the Commission at the admissibility stage; there is accordingly no estoppel (see notably the de Jong, Baljet and van den Brink judgment of 22 May 1984, Series A no. 77, p. 20, § 40).

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

In the Government’s submission, the principle of the presumption of innocence no longer applied at the time the Regional Court handed down its ruling, since the death of the applicant’s husband had, by operation of law, put an end to the criminal proceedings and therefore precluded any possibility of finding him guilty and imposing a penalty on him. The decision by the Regional Court, which was given after the close of the proceedings, was concerned solely with Mr. Nölkenbockhoff’s own necessary costs and expenses and with compensation for his detention on remand. This decision did not amount to a penalty (Bestrafung) or a measure which in its effects could be equated with a penalty. As had been clearly stated by the Constitutional Court, the reasons given for it did not imply any assessment of the defendant’s guilt; having regard to the state of the proceedings, and in particular Mr. Nölkenbockhoff’s conviction at first instance, they described a "state of suspicion" with the sole aim of reaching a fair decision on the two points in issue. 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 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 undoubtedly gave the impression that, had the proceedings not been terminated by the death of Mr. Nölkenbockhoff, his conviction would have stood. This conclusion was reinforced by the Court of Appeal and in no way altered by the Constitutional Court.

The Article and the section in question 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.

In the judgment of the Hamm Court of Appeal, which spoke of "the reasons given for the contested decision [being] valid", "the assessment of the probable outcome of the trial ... [led] to the conclusion that if the proceedings had been pursued until a final decision [had been] handed down, [Mr. Nölkenbockhoff’s] conviction would almost certainly have been upheld" (see paragraph 21 above). The Court of Appeal further referred to the fact that the appeal on points of law brought by one of the co-defendants had in the meanwhile been dismissed by the Federal Court of Justice as being manifestly ill-founded. That fact, so the Court of Appeal found, was "of particular importance in assessing the prospects of success which ... Mr. Nölkenbockhoff’s appeal would have had, because according to the reasons given for the judgment [at first instance], the offences of which ... [he] was convicted were committed together with [the co-defendant in question]".

As far as the Federal Constitutional Court was concerned, the decisions being challenged before it made "a prediction of the probable outcome of the proceedings"; they did "not amount to a finding of guilt but merely to a finding of a continuing state of suspicion" (see paragraph 22 above).

The German courts thereby meant to indicate, as they were required to do for the purposes of the decisions to be taken, that there were still strong suspicions concerning the applicant. Even if the terms used by the Essen Regional Court and the Hamm Court of Appeal were ambiguous and unsatisfactory, these courts confined themselves in substance to noting the existence of "reasonable suspicion" that the person concerned had "committed an offence" (Article 5 § 1 (c) of the Convention) (art. 5-1-c). On the basis of the evidence, the decisions described a "state of suspicion". Taking as their starting-point Mr. Nölkenbockhoff’s conviction at first instance, they assessed the prospects of success of his appeal on points of law having regard to the fate of the appeals entered by his co-defendants. As was stated by the Constitutional Court, they contained a prediction of the probable outcome of the proceedings had they been continued, but not a finding of guilt. In this respect they contrast 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 27 above).

FOR THESE REASONS, THE COURT

1. Rejects unanimously the objection that the applicant cannot be regarded as a victim within the meaning of Article 25 (art. 25);

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.

Rolv RYSSDAL

President

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.

R. R.

M.-A. E.