CASE OF EL KAADA v. GERMANY
Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary
5. The applicant was born in 1988 and lives in Gladbeck (Germany). When lodging his application, he was detained in Essen Prison. 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. 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. 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. 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). 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.