X. v. THE FEDERAL REPUBLIC OF GERMANY - 2428/65 [1967] ECHR 19 (05 October 1967)

[هيثم الفقى]

[align=left]
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]

[هيثم الفقى]

[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]

[هيثم الفقى]

[align=left]In reply to this complaint the District Court wrote on .. December
1965, stating that the Minister's direction of which the Applicant had
complained was cancelled but added that this did not mean that
permission was given for the Applicant to take part in or attend
communist directed functions.

The Applicant also repeated his contention that the mere fact that he
did not have to go to prison did not mean that he had not suffered
injury. In support of this contention he points out that the total
period of probation was increased to nearly 8 years instead of 3 as
fixed in 1959, not to speak of the effect on his reputation and the
expense and nervous strain involved.

THE LAW

Whereas the Applicant complains that on .. September 1959, he was
convicted by the Regional Court of Lüneburg of being an officer in a
subversive organisation and sentenced to 9 months' imprisonment;

Whereas the Court suspended this sentence and placed the Applicant on
probation for a period of 3 years on the condition that during that
period he refrained from participation in communist directed
manifestations such as World Festivals of Sport, Young Workers
Congresses and similar events;

Whereas Article 26 (Art. 26) of the Convention provides that the
Commission may only deal with a matter "within a period of 6 months
from the date on which the final decision was taken"; and whereas the
decision of the Federal Court, which was the final decision regarding
the subject of this complaint, was given on .. January 1960; whereas
the present Application was not submitted to the Commission until 8
February 1965, that is more than 6 months after the date of this
decision; whereas, furthermore, an examination of the case does not
disclose the existence of any special circumstances which might have
interrupted or suspended the running of that period; whereas it follows
that this part of the Application has been lodged out of time (Articles
26 and 27, paragraph (3) (Art. 26, 27-3), of the Convention);

Whereas, in regard to the Applicant's complaint that by a decision of
the Regional Court of Lüneburg of .. June 1964, the suspension of his
sentence was revoked on the ground that the Applicant had not complied
with the conditions which the court had imposed upon him, it is to be
observed that the Convention, under the terms of Article 1 (Art. 1),
guarantees only the rights and freedoms set forth in Section I of the
Convention; and whereas, under Article 25, paragraph (1) (Art. 25-1),
only the alleged violation of one of those rights and freedoms by a
Contracting Party can be the subject of an application presented by a
person, non-governmental organisation or group of individuals; whereas
otherwise its examination is outside the competence of the Commission
ratione materiae; whereas no right to the suspension on probation of
a sentence pronounced by a court in a criminal case, nor to the
continued enjoyment of such suspension once granted, is as such
included among the rights and freedoms set forth in the Convention;[/align]

[هيثم الفقى]

[align=left]
Whereas the Commission refers in this respect to its constant
jurisprudence (see for instance decision of 19 July 1966, 2306/64,
Collection 21, page 23 at page 3); whereas it follows that the
application must be rejected as incompatible with the Convention in so
far as the Applicant complains of the revocation as such;

Whereas the Applicant complains, more particularly, that the
proceedings under which the Regional Court of Lüneburg revoked the
suspension on .. June 1964, were not brought against him within a
reasonable time;

Whereas the Commission observes in this respect that the Applicant in
these proceedings did not have the status of a person charged with a
criminal offence but that of a person convicted by a sentence which had
become final although its execution had been suspended; whereas a
court, when revoking the suspension of a sentence is not determining
a civil right or obligation within the meaning of Article 6 (Art. 6)
of the Convention, nor a criminal charge brought against the person in
question;

Whereas the provisions of Article 6 (Art. 6) therefore do not apply to
such proceedings; whereas the Commission refers in this respect to its
decisions in Applications Nos 864/60 - X v. Austria - Collection of
Decisions 9, page 17 and 1336/62 - S v. Austria; whereas it follows
that this part of the application must also be rejected as incompatible
with the Convention;

Whereas the Applicant further complains that the said decision revoking
the suspension was pronounced after the expiry of the 3 years period
of probation and therefore was not in conformity with the relevant
provisions of the German code of criminal procedure; whereas in this
respect the respondent Government replies that under German law the
decisive date is not the date of the revocation, but the date on which
the conditions of suspension were violated, and that the facts on which
the order of revocation was based in the present case occurred before
the expiry of the 3 years period; whereas the Commission has frequently
stated that in accordance with Article 19 (Art. 19) of the Convention
its only task is to ensure observance of the obligations undertaken by
the Parties in the Convention; whereas, in particular, it is not
competent to deal with an application alleging that errors of law or
fact have been committed by domestic courts, except where the
Commission considers that such errors might have involved a possible
violation of any of the rights and freedoms limitatively listed in the
Convention; whereas, in this respect, the Commission refers to its
decisions Nos 458/59 (X v. Belgium - Yearbook III, page 233) and
1140/61 (X v. Austria - Collection of Decisions, Volume 8, page 57);
whereas, it is true, the Applicant also complains that the express
ground of the said decision was his presence at a certain youth
festival which was considered to be a breach of the condition imposed
by the original judgement; whereas he submits that the said decision
accordingly violated his freedom of expression and constituted as such
a violation of Article 10 (Art. 10) of the Convention; whereas, in this
respect, the Commission observed that the judgement of the Regional
Court of Lüneburg, as successively upheld by the Court of Appeal of
Celle and the Federal Constitutional Court, was exclusively concerned
with the interpretation and execution of its earlier judgement of ..
September 1959; whereas in performing this task the Court merely had
to decide whether or not the conditions imposed by that earlier
decision had been observed by the Applicant; whereas, therefore, the
court in finding that these conditions had not been observed and on
that ground revoking the suspension did not apply any new and separate
penal sanction but only ordered the execution of its earlier sentence;
whereas it follows that this part of the application must therefore be
rejected as manifestly ill-founded within the meaning of Article 27,
paragraph (2) (Art. 27-2), of the Convention;

Whereas the Applicant further complains that his freedom to receive and
impart information has been infringed by the act of the Minister of
Justice of Lower Saxony in further suspending his sentence under the
same condition, namely that he should not attend or take part in
communist directed functions; whereas under Article 25, paragraph (1)
(Art. 25-1), of the Convention the Commission may only receive an
individual Application where the Applicant claims that he is a victim
of a violation by one of the High Contracting Parties of the rights set
forth in the Convention; whereas it is clear from the letter of the
District Court in Hannover dated .. December 1965, that the condition
imposed by the Minister and complained of by the Applicant had been
cancelled;

Whereas therefore the Applicant is no longer a victim in this respect
and the complaint is thus incompatible with the Convention and, in
particular, with the provisions of Article 25 (Art. 25) governing the
conditions under which the Commission may receive an Application from
an individual;

Whereas in this respect the Commission refers to its decisions in
Applications Nos 968/61 - X v. Federal Republic of Germany, Yearbook
V 196 - 98, and 2257/64 - X v. Federal Republic of Germany, Collection
of Decisions 21, page 77; whereas it follows that this part of the
Application must be rejected in accordance with Article 27,paragraph
(2) (Art. 27-2), of the Convention;

Now therefore the Commission declares this Application INADMISSIBLE.



[/align]