[align=left]The Application was examined by a group of 3 on 28 September 1966, in
accordance with Rule 45, paragraph 1, of the Rules of Procedure.

The Commission examined the question of the admissibility of the
Application on 7 February 1967, and instructed the Secretariat to make
a further attempt to contact the Applicant and if this should be
unsuccessful (as it in fact proved to be):

a. to give notice of the Application to the Government of the Federal
Republic of Germany under Rule 45, paragraph 3 (b), of the Commission's
Rules of Procedure;

b. to invite the Government to submit its observations on
admissibility, and

c. to inform the Government that no communication had been received
from the Applicant since 16 February 1965.

The Government accordingly submitted the following observations on 2
May 1967, and also informed the Commission of the Applicant's new
address.

"According to information received from the Minister of Justice of Land
Niedersachsen and addressed to the Federal Minister of Justice, the
Applicant, X, now lives at ...-Strasse, Dortmund."

As the Minister of Justice of Land Niedersachsen has further advised
the Federal Minister of Justice, the Applicant did not have to serve
his sentence as a consequence of the decision of .. June 1964, of
Landgericht Lüneburg revoking the conditional suspension of sentence,
against which decision the Applicant had filed his Application of ..
February 1965, to the Human Rights Commission. The Applicant's
sentence, rather, was suspended as an act of grace and the Applicant
bound over on probation for a period ending .. May 1967.

In view of this information, the Federal Government confirms its
observations to the following:

a. According to the consistent practice of the Commission (see as the
most recent instance, the decision in the matter of Application No
2306/64, Recueil de Décisions, Volume 21, page 23), a right of
conditional suspension of sentence is not guaranteed by the Convention.
In this respect the Application is, therefore, incompatible with the
provisions of the Convention (Article 27, paragraph 2).

b. The Federal Government believes that it can desist from showing in
detail that Articles 10 and 6 of the Convention have not been violated;
for the Applicant, who does not serve his sentence but has been granted
a conditional suspension of his sentence has, in any case, not been a
victim of any violation of the Convention. From this point of view the
Application is manifestly ill-founded.

The Government of the Federal Republic of Germany therefore applies for
the Application to be inadmissible.

The Government's observations were communicated to the Applicant who
submitted the following reply on 31 May 1967:

"It is true that the decision of .. June 1964, which is the subject of
my complaint, was not followed by a period of imprisonment.

The Minister of Justice of Lower Saxony granted a suspension of
sentence as an act of clemency with a period of probation which expires
today (31 May 1967).

This does not affect the fact that the decision in question constitutes
a violation of Articles 10 and 6 of the Convention.

In particular, the extended period of probation, which treats me, a
journalist of 30, as a juvenile offender, constitutes a violation of
Article 10 of the Convention because, up to today I have been subject
to the limitations of which I complain, which are specified in my
Application.

I therefore again request the Commission to find:

1. that the decision of the Regional Court of Lüneburg of .. June 1964,
violates the rights and freedoms contained in the Convention;
2. that the decision should be annulled."

The Applicant's reply was communicated to the Respondent Government
which on 10 July 1967, submitted the following Supplementary
Observations:

"The decision of the Regional Court (Landgericht) at Lüneburg of ..
June 1964, by which the conditional suspension of the Applicant's
sentence was revoked, did not violate any of those rights of the
Applicant which are guaranteed by the Convention. This decision, a copy
of which is appended hereto as Appendix I, merely ordered the
application of something already awarded by the judgement of ..
September 1959, which became final in 1960. Reference is made in this
regard to the last paragraph but one of page 2 of the decision of ..
June 1964. This paragraph reads as follows:

"The enforcement of this sentence has been suspended on probation. The
period of probation was fixed at 3 years. At the same time, the
probationer was required to refrain from participating in communist
directed manifestations, in particular from those taking place in the
Soviet zone of occupation, in East Berlin and in the countries of the
Eastern bloc of nations. Particular mention is made in the decision of
World Festivals, Young Workers' Congresses, Congresses of Workers from
both parts of Germany (gesamtdeutsch), celebrations to commemorate the
Revolution, singing and dancing festivals, and manifestations of the
FDGB."

If the Applicant was of the opinion that the imposition of this
condition and the possibility of a revocation of the suspension of his
sentence in case he did not comply with the condition, violated his
rights under Article 10 of the Convention, he should have lodged a
constitutional appeal (Verfassungsbeschwerde) within the prescribed
time after the judgement became final and, if that appeal had been
rejected, an application to the Commission. In actual fact, however,
the Applicant only lodged a constitutional appeal - on .. September
1964 - against the revocation of the suspension of his sentence as
pronounced in the decision of .. June 1964. The Application to the
Commission is dated 8 February 1965. It was lodged after the Federal
Constitutional Court refused to admit the constitutional appeal for its
decision.

The Applicant's view that it had been inadmissible to revoke the
suspension of his sentence by the decision of .. June 1964, because
that revocation was not pronounced until after the period of probation
was over, is incorrect. The passage from the Leipzip Commentary of the
Penal Code, which the Applicant quotes in pages 5/6 of his Application
of 8 February 1965, in support of his legal view of the case, is
incomplete. A photostatic copy of the passage in question and of the
further comments in that context is submitted herewith as Appendix II.
It appears from this photostatic copy that in Note 1 on Section 25
(Anmerkung 1 zu, paragraph 25), the last sentence of the passage quoted
by the Applicant (from page 149 of the Commentary) and which reads:
"Therefore, any revocation of a suspension of sentence that may be
pronounced must be so pronounced in good time", is followed immediately
by the following additional remark: "(disputable; see 2 and there No
2)."

This remark, which is added in the Commentary in brackets, is missing
in the Applicant's quotation. It appears from this addition that the
commentator himself considered his view "disputable".

The essential consideration in favour of pronouncing in certain
circumstances a revocation even after the probation period has ended,
is this: only after the probation period has completed can it be said
whether a probationer did not, after all, on one of the very last days,
fail to observe the conditions on which he was bound over on probation.
It goes without saying that it is a prerequisite for revocation that
the act constituting non-compliance with the imposed conditions must
have occurred before the end of the period of probation. Once a
sentence has been finally remitted after the period of probation is
over, revocation is no longer admissible.

It is not contested in the Applicant's case that the conduct for which
the Regional Court revoked the suspension of his sentence, came within
the time when he was still on probation. A final remittal of his
sentence after the end of his probation period had not yet been
pronounced.

In view of the above, the question we are concerned with ie whether it
was admissible in the Applicant's case to revoke the suspension of his
sentence even after the period of probation had ended, is one of
interpreting German domestic law, the more so - as has already been
observed by the Federal Government in its observations of 2 May 1967
- since the Convention does not guarantee a right of conditional
suspension of sentence.

The Minister of Justice of Land Niedersachsen has, finally, prevented
the Applicant's prison sentence from being enforced (which might have
been the result of the decision of .. June 1964) by granting him, on
.. June 1965, a further period of probation as an act of clemency. This
period ended on 31 May 1967. As a result of this clemency, the
Applicant has not suffered any disadvantages through the decision of
.. June 1964. Compared with the situation which might have resulted for
the Applicant from the judgement of .. September 1959, in conjunction
with the decision of .. June 1964, his situation under the clemency of
.. June 1965, was a more favourable one.

The Federal Government again applies for the application to be declared
inadmissible.

The Supplementary Observations of the Respondent Government were
submitted to the Applicant who on 1 August 1967, submitted the
following reply:

"I venture to make the following statement in reply to the Federal
Government's Observations of 10 July 1967:

In my constitutional appeal of .. September 1964, I have already drawn
attention to the marked difference between the terms participation
('Teilnahme') and presence ('Anwesenheit'). In the decision of the
Regional Court of Lüneburg of .. September 1959 (...) the term
'participation in manifestations' ('Teilnahme an Veranstaltungen') is
used, whereas the disputed decision of .. June 1964, refers expressly
merely to presence.

As a journalist, I am almost invariably simply present at such
manifestations. In the course of my work I have been present, for
instance, at the following events:
Party Conference of the SPD (Social Democratic party)
The Gymnastics Championship of the World
Party Conference of the NPD (National Democratic Party of Germany)
etc

Obviously no one will seriously think that I was a participant at these
events. My complaint is therefore directed at the way in which the
decision of .. September 1959 was interpreted in the decision of ..
June 1964."

It is wrong to assume that the Applicant considers his rights were
violated by the decision of .. September 1959. Unfortunately, as a
young man of 22 I still lacked the necessary understanding of legal
procedure.

That is why I was unable to lodge a constitutional appeal at that time,
although even then it might well have been successful. This anyway is
the opinion of distinguished lawyers such as the well-known SPD Member
of the Federal Parliament, Dr. Adolf Arndt, who says in a written
statement:

" ... first of all because I have doubts about the interpretation of
the law on which the decision is based and, secondly, because the
injunction to refrain from attending communist manifestations in
foreign States is, in my opinion, inadmissible."

I consider it inadmissible for unfavourable conclusions to be drawn
from my omitting to lodge an appeal at that time.

If I thought that the conditional suspension of sentence was unlawfully
revoked, this was not simply because the revocation took place after
the period of probation was over, but because it was carried out such
a long time after the period of probation was over. I would consider
a few days, a few weeks or even a month as normal, but not 17 months.

It is a mistake to think that because of the act of clemency, the
Applicant has not suffered injury as a result of the decision of ..
June 1964.

Injury is caused not only through the possibility of imprisonment but
through many attendant circumstances; in my case through frequent
postponement of the date of imprisonment and all its accompanying
effects."

In reply to a letter requesting him to supply the Commission with a
copy of the decision of the Minister of Justice of Lower Saxony of ..
June 1965, suspending his prison sentence but imposing a further period
of probation, the Applicant wrote on 21 October 1967 stating that he
had not been sent a copy of this decision but was informed thereof when
he rang up the Ministry of Justice on .. June 1965. He subsequently
received from the District Court (Amtsgericht) Hannover a document
entitled "Details of Probation" (Bewährungsplan) setting out the period
and conditions of the probation and in particular the condition that
he should not take part in or attend communist directed functions
(kommunistisch gelenkten Veranstaltungen). The Applicant's lawyer wrote
on .. October 1965 to the District Court protesting against this
condition as going further than originally imposed and constituting a
hindrance to the exercise of the Applicant's profession as a
photographic reporter. He further alleged that it was so vaguely
formulated as to make it impossible for the Applicant to know what
functions he could attend with immunity.[/align]