X. v. THE FEDERAL REPUBLIC GERMANY - 3347/67 [1968] ECHR 18 (11 July 1968)

 X. v. THE FEDERAL REPUBLIC GERMANY - 3347/67 [1968] ECHR 18 (11 July 1968) [ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] European Court of Human Rights You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. THE FEDERAL REPUBLIC GERMANY - 3347/67 [1968] ECHR 18 (11 July 1968) URL: https://www.bailii.org/eu/cases/ECHR/1968/3347_67.html Cite as: [1968] ECHR 18 [ New search ] [ Contents list ] [ Help ] X. v. THE FEDERAL REPUBLIC GERMANY - 3347/67 [1968] ECHR 18 (11 July 1968) THE FACTS Whereas the facts presented by the applicant may be summarised as follows: The applicant is an Italian citizen, born in 1936 and resident at B./Rhine. He is represented by Dr. Y., a lawyer at F./Palatinate, acting under a power-of-attorney dated 5th September, 1967. From statements and from documents submitted by the applicant it appears that, on .. June, 1966, he was convicted by the District Court (Schöffengericht) at F. for negligent homicide (fahrlässige Tötung) and sentenced to four months' imprisonment. The Court further decided that the sentence should be suspended for a probationary period of three years on the conditions that during this period the applicant continued to be of good behaviour and notified the Court of any change of address. It appears that the applicant appealed (Berufung) against his conviction and sentence to the Regional Court (Landgericht) at F. On .. November, 1966, the Regional Court rejected the appeal. However, the Court modified the above condition of probation to the extent that the applicant should pay to the Red Cross a sum of 1,000 DM in monthly instalments of 100 DM, in accordance with Article 24 of the Criminal Code. The applicant then made a further appeal (Revision) to the Court of Appeal (Oberlandesgericht) at Zweibrücken. In the meanwhile, the applicant had lodged with the said Court of Appeal an appeal (Beschwerde) against the decision modifying the condition of probation. He alleged that such modification detrimental to him was unlawful. The Court of Appeal rejected the appeal on .. January, 1967; it held that the principle prohibiting a reformatio in peius applied to sentences only and not to conditions of probation. Furthermore, the condition imposed in the present case did not constitute an undue hardship on the applicant. On .. May, 1967, the Court of Appeal dismissed the applicant's further appeal as well. The applicant states that this decision was taken by a different division of the same Court from the one which decided his appeal relating to the modification of conditions of probation. According to him, this was due to his having successfully challenged the judges of the former court. The applicant had also lodged with the Federal Constitutional Court (Bundesverfassungsgericht) a constitutional appeal (Verfassungsbeschwerde) against the Court of Appeal's decision of .. January, 1967. This was rejected on .. July, 1967, on the ground that the appeal was in part inadmissible and in part clearly ill-founded. The Court referred to Article 103, paragraph (3), of the Basic Law (Grundgesetz) which guarantees that a person should not be put in double jeopardy, and decided that this provision was clearly not violated in the present case. The Court continued that it was not possible to allege by way of a constitutional appeal a violation of the principle prohibiting a reformatio in peius and that in this respect the appeal was inadmissible. The applicant now complains that the Convention was violated by the Regional Court's modification of the condition of probation. He alleges that, by this decision, a heavier sentence was in fact pronounced against him than that which was imposed by the District Court. He contends that an accused should not suffer a detriment where he appeals against an appeal; further that the detriment need not necessarily consist of an increase of the sentence but may also be he imposition of a further obligation as, in the present case, the payment of 1,000 DM. The applicant alleges a violation of the Convention and, in particular, Article 7, paragraph (1). He submits that, although the principle prohibiting a reformatio in peius was not expressly embodied in this Article, the provision should nevertheless apply in the present case as the decision complained of had an effect equal to such reformatio in peius. THE LAW Whereas, the applicant alleges a violation of Article 7 (Art. 7) of the Convention; Whereas Article 7, paragraph (1) (Art. 7-1), of the Convention provides that "no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offense under national or international law at the time when it was committed, nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed; Whereas it is to be observed that the second sentence of Article 7, paragraph (1) (Art. 7-1), of the Convention refers to "penalties" only; whereas the Commission finds that the conditions of probation do not constitute a "penalty" within the meaning of this provision but are a measure touching upon the effects of the penalty imposed; whereas, consequently, Article 7, paragraph (1) (Art. 7-1), in fine is not applicable to decisions relating to the conditions of probation; Whereas it follows that the application is incompatible with the provisions of the Convention and must be rejected in accordance with Article 27, paragraph (2) (Art. 27-2), thereof. Now therefore the Commission declares this application INADMISSIBLE BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/eu/cases/ECHR/1968/3347_67.html