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X. v. THE FEDERAL REPUBLIC OF GERMANY - 2428/65 [1967] ECHR 19 (05 October 1967)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a German citizen, born in 1937, and at presentresident in Dortmund.The Applicant complains of the revocation on .. June 1964, by theRegional Court (Landgericht), Lüneburg of a probation order made bythat Court on .. September 1959.The facts presented by the Applicant may be summarised as follows:In 1957 proceedings were brought against the Applicant for acting asan officer of the Free German Youth Movement (Freie Deutsche Jugend orFDJ), an organisation which was proscribed as subversive(Verfassungsfeindlich). On .. August 1958, he was acquitted of thesecharges by the Regional Court (4. Ferienstrafkammer des Landgerichts)of Lüneburg.On .. May 1959, on appeal (Revision) by the Public Prosecutor's Office(Staatsanwaltschaft), the Federal Court (3. Strafsenat desBundesgerichtshofs) set aside the acquittal and sent the case back tothe Regional Court for a new trial.On .. September 1959, at the new trial, the Applicant was convicted bythe Regional Court (4. Grosse Strafkammer des Landgerichts) of Lüneburgof offenses against Articles 128, 129 and 129, paragraph (a) withArticle 94 of the Penal Code in conjunction (Tateneinheit) with anoffense under Article 100, paragraph (d), sub-paragraph II of the PenalCode. The Court found that the Applicant, who had become a member ofthe Communist party at the age of 16, had continued since 1955 toparticipate in and further the activities of the proscribed FDJ knowingthat it was an illegal organisation with subversive aims. He had beenpreviously convicted of a similar offence.The Applicant was sentenced to 9 months' imprisonment forjuveniles(Jugendstrafe). The sentence was suspended on probation (zurBewährung ausgesetzt).In the decision (Beschluss) of the Regional Court of Lüneburg of ..September 1959, the period of probation was fixed at 3 years. TheApplicant was required by the decision to refrain from participatingin communist directed manifestations ("sich von der Teilnahme ankommunistisch gelenkten Veranstaltungen ... fernzuhalten"). Particularmention was made of World Festivals of Sport, Young Workers Congressesand other similar events.On .. January 1960, the Federal Court (3. Strafsenat desBundesgerichtshofs) rejected the appeal (Revision) against the decisionof the Regional Court of .. September 1959.The Applicant states that in the trial in which he was acquitted by theRegional Court of Lüneburg on .. August 1958, in the appeal to theFederal Court in which a new trial was ordered on .. May 1959, and inthe resulting new trial in the Regional Court in which he was convictedon .. September 1959, the public prosecutor was a lawyer who had beeninvolved in the illegal activities of special courts (Sondergerichte)under the Nazi regime. The Applicant states that the judge who presidedat the hearing of the appeal in the Federal Court, on .. May 1959, hadalso held office under the Nazi regime. On .. June 1964, on the basisof discoveries made by the Public Prosecutor's Office in May 1963, theRegional Court (4. Strafkammer des Landgerichts) of the Lüneburgrevoked the suspension of sentence and ordered the Applicant to servehis sentence of 9 months' imprisonment for juveniles. The Court statedthat the Applicant, in attending a World Youth Festival of Sport inHelsinki in the summer of 1962 had seriously contravened the conditionsof the probation order. The Court found that the Applicant had takenphotographs of activities at this Festival, although he denied havingdone so.On .. August 1964, the Court of Appeal (Oberlandesgericht) of Cellerejected the Applicant's appeal against the decision of the RegionalCourt of .. June 1964.On .. December 1964, the Federal Constitutional Court(Bundesverfassungsgericht) rejected as manifestly ill-founded theApplicant's constitutional appeal (Verfassungsbeschwerde) against thedecision of the Court of Appeal of .. August 1964, and of the RegionalCourt, Lüneburg, of .. June 1964.The Applicant's complaints are directed against the decision of .. June1964, of the Regional Court of Lüneburg.i. He claims that the period of probation of 3 years had expired on ..January 1963. As no proceedings were taken against him before that datehe claims that the suspended sentence of imprisonment had lapsed, andcould not legally be enforced.ii. He complains that the proceedings of .. June 1964 were not broughtagainst him within a reasonable time.iii. He further complains that he committed no breach of the probationorder, justifying the enforcement of the suspended sentence. Theprobation order prohibited "participation" at manifestations such asWorld Youth Festivals. He was present at Helsinki in his capacity asa photographic reporter, for the publication "E...". This presence didnot amount to a "participation".iv. The Applicant claims that in consequence the freedom of expressionof the publication for which he was working is also infringed.v. The Applicant claims that his personal and professional freedom ofexpression and opinion are infringed by the order of .. June 1964. Thisamounts in his view to a contravention of Article 10 of the Conventionand Article 5, paragraph 1, of the Basic Law (Grundgesetz).vi. The Applicant complains that the interpretation of the probationorder by the order of .. June 1964, prevents him from exercising hisprofession in certain places. Such a restriction contravenes Article12, paragraph 1, of the Basic Law, in the Applicant's view. It alsomisinterprets the intention of probation, which is to encourage regularemployment. Probation should not be imposed on political grounds.The Applicant asks the Commission to decide that the decision of theRegional Court of Lüneburg of .. June 1964 violates the Convention, andin particular Articles 6 and 10.II. Proceedings before the Commission[/align]