Case

Date

Judges

"Presumption of Innocence and the European Convention on Human Rights"

HEADNOTES:

It is not compatible with the presumption of innocence, which is an integral part of the Basic Law's principle of rule of law (Rechtsstaatsprinzip), when a court dismisses private prosecution proceedings and in the order to dismiss, presumes that the accused or the defendant is guilty, without first having conducted the main hearing up to the point of a verdict. The same applies when the court bases its decision as to costs and expenses on the assumption that the accused is guilty of a criminal offence.

     Order of the Second Senate of 26 March 1987

in the proceedings on the constitutional complaints by

1. G., against the order of the Traunstein Higher District Court (Landgericht) of 10 April 1979 -- 6 Qs 17/79

-- 2 BvR 589/79 --,

2. B. ..., against (a) the order of the Mainz Higher District Court of 5 May 1981 -- 6 Qs 10/81, and (b) the order of the Mainz District Court (Amtsgericht) of 20 March 1981 -- 16 Bs 3/81

-- 2 BvR 740/81 --,

3. R. ..., against (a) the order of the Nürnberg-Fürth Higher District Court of 25 February 1985 -- 6 Qs 3/85, and (b) the order of the Schwabach District Court of 7 February 1985 -- Bs 23/83

-- 2 BvR 284/85

DECISION:

1.  The constitutional complaint by Complainant 1) is rejected.

2.  With regard to the decisions made as to the costs and expenses of the proceedings, the order of the Mainz District Court of 20 March 1981 (16 Bs 3/81) and the order of Mainz Higher District Court of 5 May 1981 (6 Qs 10/81) violate the second Complainant's basic right under Article 2(1) of the Basic Law together with the Basic Law's principle of rule by law. To this extent, the orders are quashed, and the matter is referred back to the Mainz District Court.

3.  To the extent that the reasons for the decision to dismiss the proceedings contain a determination of guilt, and with regard to the award as to costs and expenses, the order of the Schwabach District Court of 7 February 1985 (Bs 23/83) violates the third Complainant's basic right under Article 2(1) of the Basic Law together with the Basic Law's principle of rule by law. The award as to cost and expenses is quashed, and the matter is referred back to the District Court.

In all other respects, the complaint of unconstitutionality is rejected.

4.  The State of Rhineland-Palatinate is hereby ordered to reimburse Complainant 2), and the State of Bavaria, Complainant 3), the necessary expenses.

EXTRACT FROM GROUNDS:

A.

. . .

I

. . .

II.

. . .

The Complainant was the accused in a private prosecution for libel at the District Court. These proceedings were based on a letter of the Complainant that he had sent to the agent for the private prosecutor in the course of tenancy litigation: the Complainant wrote that the private prosecutor suffered from paranoia and that she would be well-advised to enter into psychotherapy treatment. In response to the resulting private prosecution brought against him, the Complainant asserted that he had not sought to insult the private prosecutor by way of the confidential letter to her attorney. He had merely reacted to disturbances and to a false attack on his religious convictions that had previously taken place. He applied for the "quashing or retraction" of the private prosecution and agreed to dismissal of the proceedings as announced by the court. The private prosecutor agreed to dismissal only on the condition that she be reimbursed for expenses.

The District Court dismissed the proceedings without conducting a hearing. The decision as to costs, which imposed on the Complainant all costs, including the private prosecutor's necessary expenses, was justified, inter alia, by the fact that libel was to be made out in the Complainant's expressions. Even if it could be established that the Complainant intentionally sought to libel, which he disputed, the court held that his guilt was nevertheless insignificant in view of the overall circumstances. For this reason, the court found it unnecessary to begin with the main proceedings. All the same, this guilt -- though insignificant -- must be taken into account in awarding costs.

. . . (The Higher District Court confirmed this decision.)

By way of the complaint of unconstitutionality, the Complainant attacks the order of the Higher District Court and, by analogy, that of the District Court as well with regard to the decision as to costs; he alleges a violation of Art. 1 of the Basic Law and of the principle of the rule of law: the decision as to costs is said to represent "roundabout" punishment for libel that he did not commit. If guilt is insufficient for conviction, then the assumption of insignificant guilt via the ruling on costs must not be allowed to result in a subsequent conviction. This is alleged to represent an inherent contradiction when he is indirectly punished by the decision on costs although it was not sufficient for conviction on account of its insignificance.

. . .

III.

The Federal Minister of Justice submitted the following comments:

In harmony with § 153 of the Rules of Criminal Procedure, a dismissal under § 383(2) of the Rules of Criminal Procedure does not presuppose a determination of guilt. On the contrary, it represents the result of a preliminary review of reasons for suspicion. The wording of § 153(2), first sentence, of the Rules of Criminal Procedure gives clear expression to this ("to be viewed as insignificant").  Accordingly, dismissal is only ruled out when either the offender's guilt is not to be viewed as insignificant or when, without further taking of evidence, the prosecution is to be rejected for lack of guilt. Neither dismissal under § 383(2) of the Rules of Criminal Procedure nor the imposition of costs under § 471(3), No. 2, of the Rules of Criminal Procedure establish a charge of guilt under criminal law. Nevertheless, the presumption of innocence is not able to afford protection from the existence of expression of suspicion.

If, however, the justification for a court decision results in indirectly burdening a non-convicted citizen for an offence and convicting him de facto, this might be incompatible with the presumption of innocence. It therefore does not appear to be absolutely precluded that the justification for a decision as to costs pursuant to § 471(3), No. 2, of the Rules of Criminal Procedure violates the principle of presumption of innocence, which is indeed the case when costs and expenses are imposed on an accused with the objective of atoning for the offence committed or deterring him from committing further offences; in this instance, the decision as to costs has the same effect as punishment.

. . .

B.

. . .

The complaint of unconstitutionality is in all respects founded. . . .

I.

It is not compatible with the presumption of innocence, which is an integral part of the Basic Law's principle of rule by law (Rechtsstaatsprinzip), when a court dismisses private prosecution proceedings and in the order to dismiss, presumes that the accused or the defendant is guilty, without first having conducted the main hearing up to the point of a verdict. The same applies when the court bases its decision as to costs and expenses on the assumption that the accused is guilty of a criminal offence.

1. a) The presumption of innocence is a distinctive expression of the principle of the rule of law and therefore bears constitutional rank. By virtue of Art. 6(2) of the European Convention on Human Rights (ECHR), it is also an integral part of the Federal Republic of Germany's positive law on the level of a Federal statute. [i] In defining the presumption of innocence, the Federal Constitutional Court has referred to the wording of Art. 6(2) of the ECHR, [ii] which does not enjoy the rank of constitutional law in the Federal Republic; this relates to the legal effects that the entry into force of the Convention has had on the relationship between the basic rights under the Basic Law and the related human rights under the Convention. In interpreting the Basic Law, the content and state of development of the Convention are also to be taken into consideration, insofar as this does not lead to a restriction or derogation of basic-rights protection under the Basic Law, an effect that even the Convention itself seeks to rule out (Art. 60).  For this reason, the case law of the European Court of Human Rights also serves in this regard as an interpretational aid in defining the content and reach of the Basic Law's basic rights and principles of rule by law. Even laws -- in this case, the Rules of Criminal Procedure -- are to be interpreted and applied in harmony with the Federal Republic of Germany's commitments under international law, even when such laws have been enacted prior to an applicable international treaty; it cannot be assumed that the legislature, insofar as it has not clearly declared otherwise, wishes to deviate from the Federal Republic of Germany's international treaty commitments or to facilitate violation of such commitments.

Following from the principle that absent guilt punishment may not be imposed, it is the task of the criminal trial to enforce the state's penal claim in judicial proceedings in such a way as to guarantee effective protection for the basic rights of the accused. [iii] The offender's crime and guilt must therefore be proved. [iv] Up until such time as the statutory elements of guilt have been established, his innocence is to be presumed. [v] The presumption of innocence in closely related to the accused's right to counter the state's penal claim in fair proceedings comporting with the principle of rule by law and to defend himself. This presumption is the self-evident consequence of a substantive criminal-law order building on the principle of guilt and whose contents and boundaries are defined by the precept of respect for human dignity. In proceedings conducted in accordance with procedural rules, the presumption of innocence requires that opposite be proved before decisions are reached on a criminal accusation that demand the determination of guilt. It also protects the accused from detriments tantamount to conviction or punishment when such has not been preceded by a lawful, procedural trial to establish guilt and assess punishment. In view of the foregoing, the presumption of innocence reveals a two-fold prohibition: (1) absent statutory, procedural (but not necessarily final and conclusive) establishment of guilt in criminal proceedings, measures may not be imposed on the accused that in effect are tantamount to punishment, and, from a procedural standpoint, he may not treated as guilty; and (2) guilt must be established finally and conclusively before a convicted person may be generally remonstrated with this in legal relations. [vi] b) In that it is an expression of the principle of rule by law, the presumption of innocence does not contain -- as is the case with the right of the accused to a fair trial comporting with the principle of rule by law -- specifically enumerated prohibitions and requirements; rather, the effects it has on procedural law have to be specified according to the particular facts at hand. This is in principle a matter for the legislature. [vii] As is provided for in the Rules of Criminal Procedure, the legislature has accorded fundamental importance to the presumption of innocence in the system of the criminal trial. The structuring of the preliminary investigation proceedings, the committal proceedings and the main proceedings -- here, principally the main hearing or trial, which aims at culminating in a finding as to the issue of guilt -- gives ample effect to the presumption of innocence, the refutation or continued validity of which is the central issue in the criminal trial.

However, the presumption of innocence does not prevent the prosecuting organs from evaluating for the purposes of the trial the degree of suspicion that the accused has committed a criminal offence and -- in the judgment -- from making findings as to the defendant's guilt, pronouncing guilt and assessing punishment.

Moreover, the criminal judge must also deal with the question of guilt in various stages of the trial when he deems the requirements for dismissal of the proceedings due to insignificance as having been met. When proceedings are dismissed before the main hearing has been conducted up to the point where a decision can be reached on guilt, then the procedural basis for a finding as to guilt is lacking: the core of the criminal trial is the main hearing. The objective of the main hearing is the definitive disclosure and determination of the facts of the case; this is to transpire in such a way as to afford the greatest assurance for the discovery of the truth and, at the same time, for the best possible defense of the defendant and thus for a fair judgment. Only when the main hearing has been carried out to its close is the judge in a position and -- unless he concludes the proceedings in some other fashion -- also under a duty to make a convincing decision on the question of guilt; it creates the procedurally required conditions for making findings as to guilt and, possibly, rebutting the presumption of innocence.

c) From this result the consequences for the interpretation and application of the provisions on the dismissal of proceedings due to "insignificant guilt." When dismissal occurs prior to the point at which the verdict is to be reached -- i.e., before the procedural requirements have been met for a finding on the question of guilt -- then the presumption of innocence prohibits the judge from determining or assigning guilt. Otherwise, the opportunities under procedural law for the accused to defend himself would be curtailed and the purpose of the presumption of innocence undermined. The accused would thus be treated as guilty without the proof of his guilt having been established as demanded by criminal procedure law. By way of the wording of § 153 of the Rules of Criminal Procedure, which is the dismissal provision applying to public prosecution proceedings, the legislature has taken account of this; the statute merely requires a hypothetical judgment on guilt. The presumption of innocence calls for a corresponding interpretation of the dismissal provision applying to private prosecutions. The court is to review the facts, as they appear in the various stages of the proceedings, for whether the fault of the accused would be insignificant if the findings in a main hearing were to match this description. The court may not determine the criminal-law relevance according to statutory elements of the offence, unlawfulness and guilt; rather, it may only impute this relevance.

Assignment or determination of guilt in the reasons underlying a dismissal order rendered prior to the conducting of a main hearing up to the point of verdict is accordingly capable of leading to the ascertainment of an independent violation of basic rights. Although as a rule a basic-rights complaint can result merely from the tenor of a decision, since it alone bindingly determines the legal consequences, a violation of the presumption of innocence can, however, lie in the individual statements of the reasons for a decision; for instance, this is the case when the proceedings are dismissed -- i.e., when the actually existing suspicion of an offence is not pursued further -- but the accused is nevertheless stamped as guilty in the reasons for the decision, without the statutorily required proceedings for proof of such having taken place. This sort of judicial verdict on the question of guilt has weight, even when the accused may not be remonstrated with this in legal relations. [viii] d) The situation is normally different when the main hearing has been conducted up to the point of verdict. If -- following the defendant's final say -- the court comes to the conclusion here that (in its view, established) guilt is insignificant, there is nothing to prevent it from pronouncing this in the reasons for the decision to dismiss.

2.  With regard to the dismissal of a private prosecution, a decision as to associated costs and expenses that is based on assignment or determination of guilt follows these principles.

a) The decision as to costs and expenses of a private prosecution is characterized by the special features of these proceedings. This involves criminal proceedings in which the state's penal claim is asserted not by way of public complaint but rather by a private prosecutor, who seeks redress for himself alone. Private prosecution proceedings recognize the possibilities of retraction, settlement and cross-action, and with conciliatory settlement, they also provide a special possibility of amicable satisfaction. This satisfaction function is of particular weight, since especially private prosecutions from the area of protection from defamation often stem from relations between the parties that have long been disturbed; the private prosecution thus represents the discharge of built-up tensions. Special importance therefore rests in the court's review of whether the facts described in the private prosecution complaint are serious enough to merit intervention by a criminal judge or whether dismissal of the proceedings due to insignificance is called for. In reality, this is point on which nearly all private prosecutions center. Dismissal is the most common form of their disposition.

The provision on costs exemplifies the special character of private prosecution proceedings. Whereas the decision as to costs and expenses basically adheres to the judicial finding as to guilt when a trial is conducted up to a verdict, wide-ranging possibilities for allocating and imposing costs become available in the event of dismissal due to insignificance. Should the court resort to dismissal, the law merely requires that it observe the standard of appropriateness when it allocates costs and expenses among the parties or that it observe the standard of dutiful discretion when it imposes them on one party alone.

b) If, in dismissing proceedings prior to the point at which a verdict can be reached, the costs of the proceedings and the private prosecutor's necessary expenses are imposed upon the accused and the court justifies this by references to the guilt of the accused, then this incidental decision, as well as the reasons supporting it, violate the presumption of innocence. In the light of the special features of private prosecution proceedings, this imposition of costs, together with the allocation of guilt contained in the reasons for the order, assumes a quasi-sanctioning and quasi-penal character. In contentious proceedings, which are primarily directed at satisfaction for the private prosecutor, assignment of guilt to the accused and the imposition of the private prosecutor's expenses based on this often lead the parties -- as well as uninvolved third parties -- to the assumption that such imposition takes the place of punishment. This is not changed by the fact that the imposition of costs is usually also influenced by farther-reaching equitable considerations.

However, the imposition of trial costs and the private prosecutor's expenses lack the character of a sanction when the court does not base them on determination of guilt but rather resorts to other considerations for their appropriate allocation. In making such a discretionary decision, the court is not prevented from considering the extent to which the accused gave identifiable cause for the filing of a private prosecution complaint. In so doing, however, the court may only take as a basis the circumstances of the case that are not in need of further clarification. The same applies to the decision as to whether the accused is required to bear his own expenses. The presumption of innocence is not violated by such decisions when they contain a determination of guilt. [ix] c) If, however, the court has conducted the main hearing up to the point of verdict in the question of guilt and procedural allocations or determinations of guilt in the reasons for the decision are thus not objectionable from the standpoint rule by law, it may take this at its basis for the imposition of the private prosecutor's necessary expenses and the trial costs upon the defendant.

. . .

III.

1.  . . .

2.  The Complaint's complaint of unconstitutionality is founded.

As can be taken from the context of the reasons for its order, the District Court based its decision as to costs and expenses on the fact that the Complainant had libelled the private prosecutor; although his guilt was insignificant, it had to be taken into account in the costs decision, said the District Court. The District Court was constitutionally prevented from making such a -- not merely hypothetical -- determination of guilt by the effects of the presumption of innocence; it had not conducted a main hearing prior to this. The District Court's decision as to costs is based on this determination of guilt.

The complaint lying in this was carried forward in the order by the Higher District Court. It made reference to the, in its opinion, well-reasoned decision of the District Court. Both decisions are therefore to be quashed to the extent that they refer to the award of costs (§ 95(2) of the Federal Constitutional Court Act).  Unaffected by this ruling is the dismissal order, which was not attacked by the Complainant and, in addition, does not inculpate him.

. . .

Judges: Zeidler, Dr.Dr.h.c. Niebler, Steinberger, Träger, Mahrenholz, Böcken-förde, Klein, Graßhof

[x]

[i] Cf. BVerfGE 19, 342, 347; BVerfGE 22, 254, 265; BVerfGE 25, 327, 331; BVerfGE 35, 311, 320.

[ii] BVerfGE 35, 311, 320.

[iii] Cf. BVerfGE 57, 250, 275.

[iv] Cf. BVerfGE 9, 167, 169.

[v] Cf. BVerfGE 35, 311, 320.

[vi] Cf. BVerfGE 19, 342, 347; BVerfGE 35, 311, 320.

[vii] For details, cf. BVerfGE 57, 250, 275, 276; see also, BVerfGE 7, 89, 92-93; BVerfGE 65, 283, 290.

[viii] Cf. BVerfGE 28, 151, 160-61.

[ix] Cf. BVerfGE 25, 327, 331.

[x]

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