EL KAADA v. GERMANY - 2130/10 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2015] ECHR 1005 (12 November 2015)

In the case of El Kaada v. Germany,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Josep Casadevall, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ganna Yudkivska,
          Helena Jäderblom,
          Aleš Pejchal,
          Síofra O’Leary, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 20 October 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 2130/10) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Rachid El Kaada (“the applicant”), on 11 January 2010.

2. The applicant was represented by Mr T. Wings, a lawyer practising in Gladbeck. The German Government (“the Government”) were represented by one of their Agents, Mr H.-J. Behrens, of the Federal Ministry of Justice.

3. The applicant alleged that the decisions of the German courts revoking the suspension of a prison sentence imposed on him in 2008 had breached his right to be presumed innocent under Article 6 § 2 of the Convention.

4. On 8 January 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1988 and lives in Gladbeck (Germany). When lodging his application, he was detained in Essen Prison.

A. Background to the case

6. On 9 October 2008 the Gladbeck District Court convicted the applicant of several counts of extortion, robbery, burglary, embezzlement and assault. Applying the criminal law relating to young offenders, it sentenced him to two years’ imprisonment. The District Court suspended the execution of the sentence and granted probation. In a separate decision of the same day, the District Court imposed conditions on the applicant during the probation period, which was to run until 16 October 2010. The applicant was not to reoffend; in addition, he was ordered, inter alia, to complete at least 200 hours of unpaid social work.

7. On 11 December 2008 the applicant’s counsel informed the District Court that he represented the applicant in the proceedings concerning the applicant’s probation.

8. On 15 June 2009 the Gladbeck District Court issued a detention order against the applicant, which was confirmed on appeal. The courts found that there was a strong suspicion that the applicant had committed a burglary on 31 May/1 June 2009 in a hotel in Gladbeck. The suspicion was based on the witness statement made by the applicant’s former girl-friend S. to the police.

9. By a letter dated 5 October 2009 the applicant’s counsel notified the Essen Public Prosecutor’s Office, which received the letter on 8 October 2009, that he represented the applicant also in the investigation proceedings concerning the burglary on 31 May/1 June 2009.

10. On 7 October 2009 the applicant was arrested. He was heard on 8 October 2009 by the investigating judge at the Herford District Court, without his counsel being present, on suspicion of having committed the burglary in a hotel on 31 May/1 June 2009 in Gladbeck. The applicant, who had been informed of his rights to remain silent and to consult a defence counsel at any time, admitted having committed the offence described in the detention order of 15 June 2009.

11. On 20 October 2009, in a hearing before the Gladbeck District Court for review of the necessity of his further detention on remand, the applicant, in the presence of his counsel, revoked his confession of 8 October 2009. He submitted that he had only admitted having committed the burglary on 31 May/1 June 2009 as a police officer had told him at the time of his arrest that he had good chances of being released from detention on remand if he did so.

12. Subsequently, on 23 October 2009, the Essen Public Prosecutor’s Office charged the applicant with the burglary committed in Gladbeck.

B. The proceedings at issue

1. The decision of the Gladbeck District Court

13. On 22 October 2009 the Gladbeck District Court, relying on section 26 § 1 of the Juvenile Courts Act (see paragraph 28 below), revoked the suspension on probation of the applicant’s prison sentence granted in that court’s judgment of 9 October 2008.

14. The District Court noted that in its decision of 9 October 2008 to suspend the sentence on probation, the applicant had been imposed the condition not to reoffend during the probation period. He had breached that condition as he had confessed having committed a burglary on 31 May/1 June 2009 in Gladbeck. His new offence was similarly serious as the offences he had been convicted of on 9 October 2008.

15. The District Court further observed that the applicant had failed to comply with additional conditions imposed in the probation order. In particular, he had not completed the unpaid social work he had been obliged to carry out and had not contacted his probation officer without having a valid excuse.

2. The decision of the Essen Regional Court

16. On 27 October 2009 the applicant lodged an appeal against the District Court’s decision. He contested the court’s finding that he had reoffended. He stressed, in particular, that he had revoked his confession of 8 October 2009. Moreover, a confession alone, the credibility of which had not been tested, was not sufficient to be proved guilty of an offence. In any event, under the standards of European law, the revocation of the suspension of a sentence on probation could only be based on a final conviction of a new offence. He had to be presumed innocent until proved guilty according to law.

17. On 16 November 2009 the Essen Regional Court dismissed the applicant’s appeal against the District Court’s decision. The Regional Court considered that the revocation of the suspension on probation of the applicant’s prison sentence under section 26 of the Juvenile Courts Act could not be based on the applicant’s failure to carry out the unpaid social work he had been imposed in the probation order because the District Court had failed to specify in which institution the applicant was to do that work.

18. The Regional Court further found: “However, ultimately it was nevertheless correct to revoke the suspension on probation as the convicted offender, as the District Court had correctly found, committed another offence during the probation period.” (“Der Widerruf der Bewährung ist jedoch im Ergebnis gleichwohl zu Recht erfolgt, denn der Verurteilte ist, wie das Amtsgericht zutreffend angenommen hat, innerhalb der Bewährungszeit erneut straffällig geworden.“).

19. The Regional Court confirmed that the revocation of the suspension of the applicant’s sentence did not require that the applicant had been convicted by a final judgment of the offence on which the revocation was based. It was sufficient that the court revoking the suspension of the sentence had obtained certainty by other means that the person concerned had committed the offence. The presumption of innocence laid down in Article 6 § 2 of the Convention did not warrant a different conclusion. That presumption only related to proceedings in which a decision on the charges against the accused had to be taken and not to proceedings concerning the revocation of the suspension of a sentence on probation. Referring, in particular, to a decision of the Federal Constitutional Court of 9 December 2004 (see paragraphs 30-31 below), the Regional Court found that it was therefore sufficient, in particular, that the court revoking the suspension on probation of the penalty was convinced that the person concerned was guilty of a new offence on the basis of a credible confession that person made before a judge.

20. In the case before it, the Regional Court then found that in view of the applicant’s confession on 8 October 2009 before the investigating judge, it was of the “firm conviction that the applicant had again committed an offence” (“sichere Überzeugung von einer erneuten Begehung einer Straftat durch den Verurteilten”), namely a burglary on 31 May/1 June 2009 in a hotel in Gladbeck. The applicant’s confession was credible, in particular, as it was supported by the detailed description of the applicant’s acts before and after the offence given by witness S. before the police. The subsequent revocation of the confession by the applicant, who had further contested S.’s statements, arguing that S. wanted to take revenge following the breakdown of their relationship, was not credible in the light of the results of the investigations undertaken to date. The Regional Court referred in this respect, in particular, to the reports of the witness statements made by S. and by Z., an employee of the hotel concerned, before the police. The Regional Court therefore concluded that the applicant had demonstrated by his new offence that he had not fulfilled the expectations on which the suspension of his sentence had been based.

21. On 7 December 2009, following a decision of the Gladbeck District Court, the applicant’s detention on remand was interrupted in order for him to serve the sentence imposed on him in the Gladbeck District Court’s judgment of 9 October 2008.

3. The decision of the Federal Constitutional Court

22. On 10 December 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Gladbeck District Court dated 22 October 2009 and of the Essen Regional Court dated 16 November 2009. He argued, in particular, that the said courts’ finding, on the basis of the case-file alone, that he had committed another burglary had disregarded the rule of law and the presumption of innocence as guaranteed by the Basic Law and by Article 6 §§ 1 and 2 of the Convention. His initial confession before the investigating judge was irrelevant as he had revoked that confession, the credibility of which had not been tested by the courts revoking the suspension of his sentence on probation. He further took the view that the question whether he had committed a new burglary had to be determined by the competent criminal courts following a trial. The domestic courts’ finding that he had committed another burglary before he had been convicted thereof by a final judgment also disregarded the European Court of Human Rights’ findings in a judgment of 3 October 2002 (Böhmer v. Germany, no. 37568/97).

23. On 23 December 2009 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2888/09).

C. Subsequent developments

24. On 19 January 2010 the Gladbeck District Court convicted the applicant of burglary, committed on 31 May/1 June 2009 in a hotel in Gladbeck, and sentenced him to one year’s imprisonment. The judgment became final on 2 June 2010.

25. The applicant was released from prison on 5 August 2011.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant provisions of the Juvenile Courts Act

26. The Juvenile Courts Act applies if a young person aged fourteen but not yet eighteen years or a young adult aged eighteen but not yet twenty-one years at the time of the act commits an act which is punishable under the general legal provisions (section 1 of the Juvenile Courts Act).

27. Section 21 §§ 1 and 2 of the Juvenile Courts Act contains rules on the suspension of sentences. It provides that the judge shall suspend on probation the execution of a sentence which does not exceed two years imposed on a juvenile offender if it can be expected that the young person will regard the sentence itself as a warning and, while not gaining the experience of serving the sentence, will gain from the supervisory influence of the probation and henceforth conduct himself in a law-abiding manner. This applies unless enforcement is indicated on grounds relating to the young person’s personal development.

28. Section 26 of the Juvenile Courts Act, on revocation of the suspension of a sentence imposed on a young offender on probation, in so far as relevant, provides:

“1. The judge shall revoke the suspension of a young offenders’ penalty on probation if the young offender

(1) commits a criminal offence during the period of probation and, thereby, shows that the expectations upon which the suspension of the sentence had been based were not met,

(2) grossly or persistently breaches directions or persistently evades the supervision and guidance of the probation officer, thereby giving grounds for the fear that he will reoffend, or

(3) grossly or persistently breaches conditions.”

B. Relevant provision of the Criminal Code

29. Article 56f of the Criminal Code, on the revocation of the suspension of a penalty on probation, in so far as relevant, provides:

“1. The court shall revoke the suspension of a penalty on probation if the convicted person

(1) commits a criminal offence during the period of probation and, thereby, shows that the expectations upon which the suspension of the sentence had been based were not met,

(2) grossly or persistently breaches directions or persistently evades the supervision and guidance of the probation officer, thereby giving grounds for the fear that he will reoffend, or

(3) grossly or persistently breaches conditions.”

C. The Federal Constitutional Court’s case-law

30. In a decision dated 9 December 2004 (file no. 2 BvR 2314/04), the Federal Constitutional Court found that it was in the first place for the legislator to concretise the effects on procedural law of the presumption of innocence, a constitutional right rooted in the rule of law and Article 6 § 2 of the Convention. However, much militated in favour of interpreting Article 56f § 1 (1) of the Criminal Code to the effect that the revocation of the suspension of a penalty on probation because of the commission of a new offence, in order to comply with the constitutional protection of the presumption of innocence, required that, as a rule, the perpetrator had been convicted of the new offence. The court referred to the European Court of Human Rights’ judgment of 3 October 2002 in the case of Böhmer v. Germany.

31. The Federal Constitutional Court considered, however, that the revocation of the suspension of a penalty on probation because of a new offence of which the person concerned had not been convicted did not disregard the presumption of innocence if the person concerned had made a credible confession that he had committed the new offence. The court again referred to the judgment in the case of Böhmer, cited above, arguing that the European Court of Human Rights had distinguished that case from cases in which the decision to revoke the suspension had been based on the person’s admission of guilt.

32. The Federal Constitutional Court subsequently confirmed that case-law (see, in particular, file no. 2 BvR 1448/08, decision of 12 August 2008 with further references).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION

33. The applicant complained that the decisions of the German courts revoking the suspension of his prison sentence on probation had violated the presumption of innocence. The decisions had been based on the courts’ finding that he had committed a new offence despite the fact that he had not yet been convicted of that offence. He relied on Article 6 § 2 of the Convention, which reads as follows:

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

34. The Government contested that argument.

A. Admissibility

1. The parties’ submissions

35. The Government expressed doubts that the application was admissible. They argued that the applicant had not suffered a significant disadvantage, for the purposes of Article 35 § 3 (b) of the Convention, by the revocation of the suspension of his sentence. If the applicant had not served that sentence, he would have remained in detention on remand for the new offence as he had contested that detention without success. He had therefore neither been detained for a longer period of time nor at an earlier stage as a result of the impugned decisions.

36. The applicant contested the Government’s argument. He claimed that he had suffered a significant disadvantage in that the presumption of his innocence had been breached in the proceedings at issue. Moreover, had his prison sentence for the first offence not been executed at the relevant time as a result of the breach of the presumption of innocence, he could have contested the continuation of his detention on remand for the new offence.

2. The Court’s assessment

(a) Applicability of Article 6 § 2 of the Convention

37. The Court reiterates that Article 6 § 2 applies where a court decision, rendered in proceedings which had not been directed against the person concerned in his capacity as “accused” but nevertheless concerned and had a link with criminal proceedings simultaneously pending against him, may have implied a premature assessment of the person’s guilt (see Böhmer v. Germany, no. 37568/97, § 67, 3 October 2002; Diamantides v. Greece (no. 2), no. 71563/01, § 44, 19 May 2005; and Karaman v. Germany, no. 17103/10, § 41, 27 February 2014). Article 6 § 2 therefore applies to the proceedings concerning the revocation of the suspension of the applicant’s sentence here at issue, in which reference was made to the fresh criminal investigation proceedings pending against the applicant on suspicion of having committed another burglary.

(b) Application of Article 35 § 3 (b) of the Convention

38. As regards the Government’s objection under Article 35 § 3 (b) of the Convention, the Court observes at the outset that this provision was inserted in the Convention by Protocol no. 14 to the Convention, which entered into force on 1 June 2010. Under Article 20 of Protocol no. 14, Article 35 § 3 (b) shall apply from the date of the entry into force of that Protocol to all applications pending before the Court, except those declared admissible. As the present application, introduced on 11 January 2010, was not declared admissible before 1 June 2010, Article 35 § 3 (b) is applicable to it.

39. The main element of the criterion set by Article 35 § 3 (b) of the Convention is whether the applicant has suffered any significant disadvantage (see Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010; Korolev v. Russia (dec.), no. 25551/05, ECHR 2010; and Shefer v. Russia (dec.), no. 45175/04, § 17, 13 March 2012).

40. The criterion hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case (see Korolev, cited above; Van Velden v. the Netherlands, no. 30666/08, § 36, 19 July 2011; and Diacenco v. Romania, no. 124/04, § 42, 7 February 2012).

41. In the light of the criteria established in its case-law, the Court considers that, in ascertaining whether the violation of a right attains the minimum level of severity, the following factors, inter alia, should be taken into account: the nature of the right allegedly violated, the seriousness of the impact of the alleged violation on the exercise of a right and/or the possible effects of the violation on the applicant’s personal situation (see Giusti v. Italy, no. 13175/03, § 34, 18 October 2011; and Gagliano Giorgi v. Italy, no. 23563/07, § 56, ECHR 2012 (extracts)).

42. The Court observes in the present case that the applicant complained that he had been declared guilty of a burglary by the domestic courts which revoked the suspension of his sentence before he had been tried and proved guilty of that offence by the trial courts, contrary to the presumption of innocence. That right is aimed at protecting persons from statements made by public officials which encourage the public to believe the persons concerned guilty before having been proved guilty according to law and which prejudice the assessment of the facts by the competent trial courts, thus safeguarding a fair trial before those courts (compare Allenet de Ribemont v. France, 10 February 1995, §§ 35 and 41, Series A no. 308; and Mokhov v. Russia, no. 28245/04, § 28, 4 March 2010). Assuming that it finds a violation, the breach of that right entails an unjustified designation of the applicant as being guilty of a criminal offence and thus has a serious impact on the applicant’s personal reputation (compare also Diacenco, cited above, § 46) as well as on the fairness of the proceedings pending against him. That impact is not affected by the fact that, as alleged by the Government, the applicant may have been detained anyway at the time of the impugned decisions of the domestic courts.

43. In view of the foregoing, the Court concludes that the applicant cannot be deemed not to have suffered a significant disadvantage for the purposes of Article 35 § 3 (b) of the Convention. Accordingly, the Government’s objection must be dismissed.

44. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

45. The applicant argued that the presumption of innocence guaranteed by Article 6 § 2 of the Convention had been violated in that the domestic courts, in the proceedings at issue, had revoked the suspension of his sentence arguing that he had committed another burglary during the probation period. However, at the time of the revocation, the criminal proceedings concerning the charges of the new burglary, which he contested, had not been terminated by a final, or indeed by any judgment by the trial courts competent to decide on the new charges. He relied on the Court’s judgment in the case of Böhmer (cited above) to support his view.

46. The applicant further took the view that the domestic courts in the proceedings at issue had only relied on his initial confession before the investigating judge. That confession was, however, irrelevant as he had already revoked it at the time of the courts’ decisions.

(b) The Government

47. In the Government’s view, the decisions revoking the suspension on probation of the applicant’s prison sentence had not breached Article 6 § 2 of the Convention.

48. The Government submitted that the German courts observed this Court’s findings in the case of Böhmer (cited above) that domestic courts, in proceedings concerning the revocation of the suspension of a person’s prison sentence, could not take into account offences which had not been proven in accordance with the law. As a consequence, German courts therefore, as a rule, only revoked the suspension of a sentence owing to the commission of a new criminal offence under the applicable provisions in Article 56f § 1 (1) of the Criminal Code and section 26 § 1 (1) of the Juvenile Courts Act (see paragraphs 28-29 above) after the person concerned had been found guilty of the new offence in a final judgment.

49. In the particular circumstances of the present case, the fact that the domestic courts did not await the applicant’s final conviction did not, however, breach the presumption of innocence for the following reasons. In the Government’s submission, the revocation of a suspension of a prison sentence under section 26 of the Juvenile Courts Act was in substance no more than the correction of an initially positive prognosis-based decision under section 21 of the Juvenile Courts Act (see paragraph 27 above). It followed from the wording and the intention of the former provision that the revocation decision did not amount to a conviction. In order to revoke a suspension on probation, the court was not obliged to obtain the certainty required for a conviction that the person concerned had committed a new criminal offence. It was sufficient that there was a high probability that the person concerned had committed another offence.

50. Moreover, the domestic courts in the present case, when revoking the suspension on probation, had based their decisions on the applicant’s credible confession. In accordance with the Federal Constitutional Court’s case-law (see paragraphs 30-32 above) and the case-law of the European Commission of Human Rights (they referred to a decision of 9 October 1991, no. 15871/89), the revocation of the suspension on probation of a person’s prison sentence was exceptionally possible prior to that person’s final conviction of a new offence if that person had made a credible confession that he or she had committed the new offence, even if the person revoked the confession at a later stage.

51. In the present case, the applicant had made a confession to a new offence before the District Court on 8 October 2009, which was considered credible by the domestic courts in the proceedings at issue despite the fact that the applicant had subsequently revoked that confession. The courts had considered, in particular, that the confession of the applicant, who had been represented by counsel at that time, was consistent with the witness statements made by the applicant’s former girl-friend S. Other than in the case of Böhmer (cited above), the domestic courts in the proceedings at issue had not, therefore, taken the place of the trial courts responsible for deciding on whether the applicant was guilty of the new offence.

2. The Court’s assessment

(a) Recapitulation of the relevant principles

52. The Court reiterates that Article 6 § 2 is aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings (see Mokhov, cited above, § 28 and the cases cited therein). The presumption of innocence is one of the elements of the fair criminal trial that is required by paragraph 1 (see Allenet de Ribemont, cited above, § 35; and Mokhov, ibid.).

53. The principle of presumption of innocence will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty (see Minelli v. Switzerland, 25 March 1983, § 37, Series A no. 62; and Böhmer, cited above, § 54).

54. A fundamental distinction must be made between a statement that someone is merely suspected of having committed a crime and a clear declaration, in the absence of a final conviction, that an individual has committed the crime in question (see Peltereau-Villeneuve v. Switzerland, no. 60101/09, § 32, 28 October 2014; for the relevance of the finality of the conviction for the principle of the presumption of innocence see also Konstas v. Greece, no. 53466/07, § 35, 24 May 2011). The latter violates the principle of presumption of innocence while the former has repeatedly been considered as complying with Article 6 (see Marziano v. Italy, no. 45313/99, § 31, 28 November 2002 and the cases cited therein; and Peltereau-Villeneuve, cited above, § 32).

55. The Court has consistently emphasised the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of a particular criminal offence (see Böhmer, cited above, §§ 54 and 56; Ismoilov and Others v. Russia, no. 2947/06, § 166, 24 April 2008; and Müller v. Germany, no. 54963/08, § 46, 27 March 2014). Moreover, whether or not a public official’s remarks breach the principle of the presumption of innocence must be examined in the context of the particular circumstances in which the offending remarks were made (see Konstas, cited above, § 33; and Müller, cited above, § 46).

(b) Application of these principles to the present case

56. The Court is called upon to determine, in the light of the above principles, whether the reasoning in the impugned decisions of the domestic courts revoking the suspension of the applicant’s sentence reflected an opinion that the applicant was guilty of the burglary committed on 31 May/1 June 2009 before he had been proved guilty of that offence according to law.

57. The Court notes that at the time when the domestic courts delivered their decisions in the revocation proceedings here at issue, investigation proceedings had been instituted against the applicant on suspicion that he had committed a new offence, the burglary in a hotel in Gladbeck on 31 May/1 June 2009. However, the domestic trial courts competent to decide on the new charges had not yet delivered a judgment in the applicant’s case in which he had been proved guilty of the new offence at the time of the impugned revocation decisions.

58. The Court observes that the domestic courts based the revocation of the suspension of the applicant’s sentence in particular on the fact that the applicant had initially confessed on 8 October 2009 before an investigating judge having committed the burglary on 31 May/1 June 2009. The courts considered that confession as credible despite the fact that the applicant had revoked it in a court hearing shortly afterwards, on 20 October 2009, and thus prior to the domestic courts’ decisions (notably on 22 October and 16 November 2009) in the proceedings at issue.

59. The Court further observes that the applicant in the present case, aged twenty-one, had made his initial confession before the investigating judge without his counsel being present. He later claimed that he had admitted the offence in order to obtain his release from detention on remand. The applicant had withdrawn his confession at the time of the decisions of the domestic courts revoking the suspension of the prison sentence. As a consequence of the withdrawal, the domestic courts could no longer base their conclusion that the applicant committed another offence during the probation period on a valid confession, and therefore assessed the credibility of the different statements he had made (see, in particular, paragraph 20 above).

60. The present case must be distinguished in these respects from the case of G.S. v. Germany (no. 15871/89, Commission decision of 9 October 1991) on which the Government relied (see paragraph 50 above). In that case, the suspension of that applicant’s sentence was revoked following his confession of having committed a new offence during the probation period before an investigating judge. Other than in the present case, G.S. had, however, withdrawn his confession, which he had made in the presence of his defence counsel, only after the revocation of the suspension by the criminal courts.

61. Having regard to the reasoning of the impugned decisions of the domestic courts, the Court observes that in its decision of 16 November 2009 in the proceedings at issue, the Essen Regional Court, confirming the conclusions of the District Court that the applicant had committed the burglary on 31 May/1 June 2009, stated that the applicant had “committed another offence during the probation period” (see paragraph 18 above). The Regional Court was further of the “firm conviction that the applicant had again committed an offence” in view of the applicant’s confession before the investigating judge (see paragraph 20 above).

62. Having regard to the context in which these statements were made, the Court notes that the revocation of the suspension of the applicant’s sentence by the domestic courts was based on section 26 § 1 (1) of the Juvenile Courts Act. Under that provision, it is a precondition for the domestic courts to revoke the suspension of a prison sentence that the young offender “commits a criminal offence during the period of probation” (see paragraph 28 above). The Court considers that, in accordance with the clear wording of the provision, and contrary to what the Government’s observations may suggest (see paragraph 49 above), it was therefore necessary for the domestic courts to have obtained certainty that the person concerned committed a new offence. It was not sufficient for those courts to make a finding that the person concerned was suspected of having committed another offence. The Regional Court in the present case accordingly confirmed that it was necessary for it to obtain certainty that the applicant had committed another offence and stated that, having assessed the evidence before it, it was convinced that the applicant had committed the new burglary in question (see paragraphs 19-20 above). This finding is, furthermore, not called into question by the fact that the decision to revoke a suspension, as was stressed by the Government, entails a correction of the initial prognosis based on section 21 of the Juvenile Courts Act that the applicant would not reoffend even if he did not have to serve his sentence (compare already Böhmer, cited above, §§ 61 et seq.).

63. The Court considers that the impugned statements contained in the Regional Court’s judgment confirmed without any reservations or reference to a state of suspicion the District Court’s finding, required by the applicable provision of domestic law, that the applicant had committed a new offence. The Court therefore finds that they amounted to a clear declaration that the applicant was guilty of another burglary before he was proved guilty thereof by the competent trial courts in a final judgment in accordance with the law.

64. Furthermore, the Court cannot but note in that context that the domestic courts’ finding that the applicant was guilty of a new offence was based on section 26 § 1 (1) of the Juvenile Courts Act. That provision is practically identical in its wording to Article 56f § 1 (1) of the Criminal Code, applicable to adult offenders, which was at the root of the breach of Article 6 § 2 of the Convention found by the Court in 2002 in the case of Böhmer (cited above, §§ 63 et seq.). It further observes that it had already noted in that judgment that the German Federal Government had previously declared that it would consider whether an amendment of Article 56f § 1 of the Criminal Code was necessary in order to ensure that the revocation of a suspended sentence in such circumstances does not conflict with Article 6 § 2 of the Convention (ibid., § 65).

65. The Court must note again that no legislative changes intervened. It acknowledges that the Federal Constitutional Court, while considering that it was in the first place for the legislator to concretise the effects on procedural law of the presumption of innocence, has given guidance on the interpretation of the principle of presumption of innocence in the context of proceedings concerning the revocation of the suspension of a sentence (see paragraphs 30-32 above). However, the proceedings in the present case reveal that the right under Article 6 § 2 of the Convention has not been fully implemented in line with that Article on the domestic level through interpretation of the wording of section 26 § 1 (1) of the Juvenile Courts Act.

66. In view of the foregoing, the Court concludes that the reasoning in the impugned decisions of the domestic courts revoking the suspension of the applicant’s sentence breached the principle of presumption of innocence. There has accordingly been a violation of Article 6 § 2 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

67. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

68. The applicant claimed 7,500 euros (EUR) in respect of non-pecuniary damage. He argued that the breach of Article 6 § 2 of the Convention by the revocation of the suspension of his sentence had deprived him of any chance to have his detention suspended prior to his final conviction of the new offence.

69. The Government argued that the applicant had not suffered any damage as a result of the revocation of the suspension on probation of his prison sentence. The latter had neither led to a longer nor to an earlier detention as the applicant would have been in detention on remand until the revocation of the suspension following his final conviction of the new offence otherwise.

70. The Court considers that the applicant must have suffered distress as a result of the breach of the principle of presumption of innocence in the decisions revoking the suspension of his prison sentence on probation in the proceedings at issue. Making its assessment on an equitable basis, the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

71. Submitting copies of the bills issued by his lawyer, the applicant also claimed EUR 1,278.30 (including value-added tax (VAT)) for the lawyer’s costs and expenses incurred before the domestic courts in the proceedings before the Essen Regional Court and the Federal Constitutional Court. He further claimed EUR 949.14 (including VAT) for the lawyer’s costs and expenses incurred before the Court.

72. The Government generally contested that the applicant had suffered any damage within the meaning of Article 41 of the Convention, but did not comment specifically on the applicant’s claims in respect of costs and expenses.

73. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court finds that the applicant has shown that he has actually and necessarily incurred the costs and expenses claimed in order to redress the breach of Article 6 § 2 of the Convention and considers the sum claimed as reasonable as to quantum. It therefore awards the applicant the total sum claimed, that is, EUR 2,227.44 (including VAT), covering costs and expenses under all heads, plus any (additional) tax that may be chargeable to the applicant.

C. Default interest

74. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 2 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,227.44 (two thousand two hundred and twenty-seven euros, forty-four cents) (including VAT), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 12 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Josep Casadevall
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> EL KAADA v. GERMANY - 2130/10 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2015] ECHR 1005 (12 November 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/1005.html Cite as: [2015] ECHR 1005