CEDH · CASELAW;CLIN;ENG — 27 mars 2014

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Germany - 54963/08 Judgment 27.3.2014 [Section V] Article 6 Article 6-2 Presumption of innocence Statement in expert report that applicant was guilty of criminal offence of which he had been acquitted: Article 6 §   2 applicable; no violation Facts – In 1984 the applicant was given a life-sentence for the murder of his wife. In 1999 he was acquitted of a further charge that he had caused bodily harm to a female acquaintance (Ms   J) while on prison leave in 1997. After serving 15   years of his life sentence he applied for probationary release, but this was refused by the regional court on the grounds that he remained dangerous. It reached that conclusion after hearing witness evidence relating to the 1997 incident. In September 2007 a different regional court rejected a further application for probationary release in the absence of any realistic chance that the applicant would not reoffend. In reaching that conclusion it relied on a fresh expert’s opinion that stated that “the criminal offence that the applicant had committed to the detriment of Ms   J. showed that the applicant was willing to enter into relationships with women once more and that a separation would lead to violent acts for reasons of wounded pride”. That decision was upheld on appeal. Law – Article 6 § 2 (a)     Applicability – The applicant had been charged with causing bodily harm to a female acquaintance while on prison leave in January 1997. In February 1999 a district court had acquitted him of that charge on factual grounds without giving any further written reasons. In 2007 the execution of sentence chamber of the regional court and the court of appeal considered that the circumstances of the alleged incident of January 1997 were of relevance to the decision on the applicant’s request for probationary release. There thus existed a sufficient connection between the criminal proceedings terminated by the applicant’s acquittal in 1999 and the proceedings on his request for probationary release to bring the case within the scope of applicability of Article 6 §   2 of the Convention. Conclusion : admissible (unanimously). (b)     Merits – The Court reiterated that the presumption of innocence would be violated if a statement of a public official concerning a person charged with a criminal offence reflected an opinion that he was guilty unless he had been proved so according to law. However, there was no single approach to ascertaining the circumstances in which that Article would be violated in the context of proceedings following the conclusion of criminal proceedings and much depended on the nature and context of the proceedings in which the impugned decision was adopted. Although the language used by the decision-maker was of critical importance in assessing the compatibility of the decision and its reasons with Article 6 §   2, when regard was had to the nature and context of the particular proceedings even the use of some unfortunate language may not be decisive. Turning to the applicant’s case, the Court noted that his complaint directly related only to the decisions given by the regional court and court of appeal in 2007. The decisions given on his earlier requests for probationary release, in particular the regional court’s decision of February 1999, were therefore relevant only in so far as they provided the context for the 2007 decisions. As regards the nature and context in which the impugned decision was taken, the regional court had been required to assess whether the applicant’s probationary release would cause a risk to public safety and had therefore had to consider the applicant’s conduct while serving his sentence. It was in that context that it had examined his behaviour following his separation from Ms   J. The Court did not consider that the regional court was a priori prevented from taking into account certain facts which had been under the consideration of the criminal court in 1999, particularly as it had been expressly stated in relation to the application for probationary release in 1999 that the qualification of the 1997 incident under criminal law was irrelevant for the prognostic decision that had to be made on the question of probationary release. With regard to the language that had been used in the 2007 decision to refuse probationary release, although it would have been more prudent for the regional court clearly to distance itself from the expert’s misleading statements as to criminal guilt, it was sufficiently clear from the wording it had used that it was directly quoting from the expert report and that the reference was accepted as a follow-up to the analysis previously given with respect to the issue of probationary release. Neither the regional court nor the court of appeal had stated that the applicant was guilty of a fresh criminal offence. The regional court had expressly stated that it was part of the expert’s task to assess a factual situation from a medical point of view. A close reading of the text excluded an understanding which would touch upon the applicant’s reputation and the way he was perceived by the public. Accordingly, the decision to refuse the request for probationary release did not demonstrate a lack of respect for the presumption of innocence the applicant enjoyed in respect of the criminal charge of which he had been acquitted. Conclusion : no violation (five votes to two).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes