CASE OF A.L. v. GERMANY
No violation of Art. 6-2
4. The applicant was born in 1964 and lives in Germany. He used to run a car rental business. 5. On 3 November 1994 the Limburg Prosecuting Office informed him that it had begun criminal investigations against him and three other persons on the suspicion of insurance fraud. They were suspected of having obtained reimbursement for non-existent car rental costs and of having requested payment for non-refundable kilometres. 6. On 4 November 1994, following the Wetzlar District Court's arrest warrant, the applicant was arrested on the suspicion that he would attempt to hinder the investigation proceedings (Verdunklungsgefahr). 7. On 29 November 1994 the District Court suspended the execution of the arrest warrant on the condition that the applicant cease to have contact with his co-suspects and any of the witnesses involved. 8. On 10 February 1997 the applicant and his co-suspects were indicted for fraud. 9. On 10 March 1997 the District Court revoked the arrest warrant. 10. On 12 January 2000 the Limburg Regional Court provisionally discontinued proceedings with the applicant's consent pursuant to Section 153a § 2 of the Code of Criminal Procedure (see relevant domestic law below) on the condition that the applicant pay a sum of 3,500 DEM to the Association to Aid Criminal Offenders (Verein für Straffälligenhilfe). 11. On 21 March 2000, after the applicant had fulfilled this condition, the Regional Court, sitting as a chamber of three judges, permanently discontinued proceedings against the applicant but refused to grant him compensation for the time spent in detention on remand, finding that such compensation would not be equitable (entspricht nicht der Billigkeit), in particular as the applicant had waived any right to compensation. 12. The applicant appealed against this decision, arguing that he had never waived his right to compensation and that compensation would be equitable, as the criminal proceedings had caused him to lose his source of income and had prevented him from finishing his law studies. 13. By letter to the applicant's counsel of 18 May 2000, the presiding judge of the competent chamber of the Regional Court confirmed that if the proceedings had been pursued, the Regional Court would have opened proceedings against the applicant with regard to parts of the indictment. The applicant would then have been convicted with predominant probability (“Insoweit war auch mit bei weitem überwiegender Wahrscheinlichkeit mit Verurteilung zu rechnen”). In one of the cases of fraud, this predominant probability was based on the submissions of another accused and of a former suspect. In another case, a conviction for fraud was to be expected following the submission of various car rental receipts (“...war schon im Hinblick auf die Einreichung der diversen Mietwagenrechnungen mit einer Verurteilung wegen Betrugs zu rechnen”). 14. On 22 September 2000 the Frankfurt/Main Court of Appeal rejected the applicant's appeal. It noted that granting compensation for prosecution measures lay within the discretion of the competent courts or prosecuting offices. The relevant Section 3 of the Act on Compensation for Prosecution Measures (Gesetz über die Entschädigung für Strafverfolgungs- massnahmen, see relevant domestic law below) was to be seen as an exception to the rule - according to this provision, compensation should be granted in special cases where the execution of provisional prosecution measures was considered to be grossly disproportionate (“grob unverhältnismässig”). This did not apply to the case against the applicant. 15. The Court of Appeal noted that the measures of prosecution instituted against the applicant were originally based on a strong suspicion (dringender Verdacht). If the proceedings had continued, the Regional Court would have opened proceedings against the applicant regarding a certain part of the indictment. The Court of Appeal found that taking into account a remaining suspicion (“verbleibender Tatverdacht”) when deciding on compensation was not in violation of the right to the presumption of innocence under Article 6 of the Convention, as it did not involve the establishment or allocation of guilt, but only constituted an admissible and necessary evaluation of the situation. Legal consequences of a non-punitive character, such as the refusal of compensation for prosecution measures, may be linked to such a remaining suspicion. This remaining suspicion, which the Regional Court took into account when deciding on compensation, was only relevant with regard to the question of whether to open proceedings and of whether the public interest in further prosecution could be overcome. It was not relevant with regard to the actual question of guilt or the probability of a conviction. 16. On 14 December 2000 the Federal Constitutional Court refused to entertain the applicant's complaint against the court decisions and the letter of the Regional Court, finding that the principle of the presumption of innocence did not prevent the establishment and assessment of a remaining suspicion in a decision on the discontinuance of criminal proceedings before a conviction has taken place. It thus also did not prevent courts or prosecuting offices from taking this remaining suspicion into account when deciding on compensation. 17. The presumption of innocence prohibits imposing sanctions with a punitive or de facto punitive effect on an accused whose guilt has not been established in the relevant criminal proceedings. However, in a decision on the discontinuance of proceedings, legal consequences of a non-punitive character may be linked to a remaining suspicion, but it must become sufficiently clear from its reasoning that this does not occur out of the intention to establish or allocate guilt, but out of the intention to describe and assess the state of suspicion (Verdachtslage). This distinction had to be sufficiently expressed in the decision's reasons. In this respect, the context of all the given reasons had to be taken into account. 18. In the light of the above principles, the Federal Constitutional Court found that the impugned decisions were compatible with the German Basic Law. It noted that the Court of Appeal had refused to grant the applicant compensation under Section 3 of the Act on Compensation for Prosecution Measures on the ground that if the proceedings against the applicant had been pursued, the Regional Court would have opened court proceedings against the applicant based on parts of the indictment. This evaluation of the remaining suspicion with regard to the question of the opening of proceedings and overcoming the public interest in pursuing prosecution measures neither contained a declaration on the probability of the applicant's conviction, nor did it contain a criminal allocation of guilt. 19. According to Section 153a of the Code of Criminal Procedure, criminal proceedings involving a less serious criminal offence (Vergehen) may be discontinued subject to certain conditions and instructions (Auflagen und Weisungen). 20. If the proceedings are still in the investigation phase, the Public Prosecutor's Office may, with the consent of the competent court and the accused, provisionally refrain from issuing an indictment relating to an offence and may at the same time order the accused (1) to take measures providing reparation, (2) to pay a sum of money to a charitable association or the Treasury, (3) to take other measures or (4) to make maintenance payments of a particular amount, if such conditions and instructions can remove the public interest in prosecution and if this is not in conflict with the seriousness of the crime (“...wenn diese geeignet sind, das öffentliche Interesse an der Strafverfolgung zu beseitigen, und die Schwere der Schuld nicht entgegensteht”) (Section 153a § 1). 21. If the accused has already been indicted, the court may, with the consent of both the public prosecutor's office and the accused, discontinue the proceedings and impose the same conditions and instructions (Section 153a § 2). 22. Compensation for various prosecution measures is covered by the Act on Compensation for Prosecution Measures (Gesetz über die Entschädigung für Strafverfolgungsmassnahmen). 23. In cases where an accused is acquitted or where the proceedings against him are discontinued or where a court refuses to open the proceedings against him, he is entitled to compensation for damages suffered due to time spent in detention on remand or due to other prosecution measures (Section 2). 24. If the discontinuation of the proceedings is subject to the discretion of the prosecutor' 25. According to the case-law of the Federal Constitutional Court, cases where the proceedings have been discontinued according to Section 153a of the Code of Criminal Procedure also fall under the scope of the above regulations.