AS TO THE ADMISSIBILITY OF

                      Application No. 12748/87
                      by G.
                      against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private
on 14 March 1989, the following members being present:

              MM. C.A. NØRGAARD, President
                  J.A. FROWEIN
                  S. TRECHSEL
                  G. SPERDUTI
                  A.S. GÖZÜBÜYÜK
                  A. WEITZEL
                  H.G. SCHERMERS
                  H. DANELIUS
                  J. CAMPINOS
                  H. VANDENBERGHE
             Mrs.  G.H. THUNE
             Sir  Basil HALL
             MM.  F. MARTINEZ
                  C.L. ROZAKIS
             Mr.  L. LOUCAIDES

             Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 5 February 1987
by G. against the Federal Republic of Germany and registered
on 20 February 1987 under file No. 12748/87;

        Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;

        Having regard to :

     -  the observations submitted by the respondent Government on
        14 March 1988 and the observations in reply submitted by the
        applicant on 13 May 1988;

     -  the submissions made by the parties at the hearing on
        14 March 1989.

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case, which do not appear to be in dispute
between the parties, may be summarised as follows.

        The applicant, born in 1951, is a German national and resident
in Dortmund.  He is a mechanic by profession.  Before the Commission
he is represented by Mr.  P. Budde, a lawyer practising in Dortmund.

        On 23 July 1981 the Dortmund District Court (Amtsgericht)
convicted the applicant of an offence under the Narcotics Act
(Gesetz über den Verkehr mit Betäubungsmitteln) and sentenced him to
one year's imprisonment.  The execution of the sentence was suspended on
probation.

        At the end of 1985 the Dortmund Prosecutor's Office (Staatsan-
waltschaft) began preliminary investigations against the applicant on
the charge that on 29 October 1985 he had dealt in heroin of a
considerable quantity.  On 10 January 1986 the applicant, represented
by counsel, denied that he had heroin with him on 29 October 1985.

        On 21 April 1986 the Dortmund Regional Court (Landgericht),
acting as court supervising the execution of sentences (Vollstreckungs-
gericht), revoked the suspension of 23 July 1981.

        In the reasons given for its decision the Court referred in
particular to S. 56(f) para. 1 (1) of the German Penal Code (Straf-
gesetzbuch) according to which the court supervising the execution of
sentences revokes the suspension of a sentence if the convicted person
commits another criminal offence during the period of probation and,
thereby, shows that he did not fulfil the expectations upon which the
suspension of the sentence was based ("Das Gericht widerruft die
Strafaussetzung, wenn der Verurteilte in der Bewährungszeit eine
Straftat begeht und dadurch zeigt, dass die Erwartung, die der
Strafaussetzung zugrunde lag, sich nicht erfüllt hat, ...").

        The Regional Court found that the applicant had committed
another criminal offence of the same kind during the period of
probation. ("Der Verurteilte ist in der Bewährungszeit erneut ein-
schlägig straffällig geworden".)  It considered that on 29 October
1985 he had dealt in drugs of a significant quantity and that
according to a chemical expert opinion of 26 February 1986 it was
heroin.  He had, therefore, committed an offence under the Narcotics
Act and shown that he did not fulfil the expectations upon which the
suspension of his sentence was based.  He had not submitted any
reasons which could excuse his conduct. ("Es liegt mithin eine Straf-
tat ... <nach dem> Gesetz über den Verkehr mit Betäubungsmitteln vor.
Durch sein Verhalten hat der Verurteilte gezeigt, dass sich die
Erwartungen, die der Strafaussetzung zugrunde liegen, nicht erfüllt
haben.  Der Verurteilte hat keine Umstände vorgetragen, die sein
Verhalten entschuldigen könnten.")

        On 9 July 1986 the Hamm Court of Appeal (Oberlandesgericht)
dismissed the applicant's appeal (sofortige Beschwerde) against the
decision of 29 October 1985 on the ground that the reasons given in
that decision were in their conclusion correct.  The Court left the
question open whether or not the applicant had dealt in drugs.  It
stated that, having regard to the results of the preliminary
investigations in the recent criminal proceedings before the Dortmund
District Court, it was convinced that on 29 October 1985 the
applicant, in any event, unlawfully possessed 30 mg of a mixture of
various drugs.  This repeated criminal conduct of the applicant in
respect of a similar kind of criminal offence during his probationary
period would justify and require that the suspension of his sentence
be revoked without, on the evidence before the Court, a final
conviction being necessary.  ("Nach dem Ergebnis der Ermittlungen in
dem neuerlichen Strafverfahren ... <vor dem> AG Dortmund ist der Senat
davon überzeugt, dass der Verurteilte am 29.  Oktober 1985 jedenfalls
ohne Erlaubnis 30 mg eines Gemisches aus <verschiedenen Rauschgiften>
in Besitz gehabt hat.  Auch dieses erneute und einschlägige strafbare
Verhalten des <Beschwerdeführers>, das er innerhalb der Bewährungszeit
aus dem vorliegenden Verfahren begangen hat, rechtfertigt und
erfordert nunmehr den Widerruf der Strafaussetzung, ohne dass es bei
der gegebenen Beweislage zuvor einer entsprechenden rechtskräftigen
Verurteilung bedarf.")

        On 1 December 1986 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde) on the ground that it offered no
prospect to success.  The Court found in particular that the
presumption of innocence derived from the principle of the rule of law
was not violated.  It considered that by virtue of this principle no
measures amounting to a penalty may be taken against a defendant
without his guilt having been established according to law.  However,
not every finding of guilt would contravene the principle of the rule
of law.  According to constant jurisprudence S. 56(f) para. 1 (1) of
the Penal Code did not require that the defendant had already been
convicted, but the court supervising the execution of sentences, upon
the basis of its own assessment, must be convinced that he committed
the offence in question.  This jurisprudence could not be objected to
from a constitutional point of view.  The revocation of a suspension
constituted the consequence of the positive decisions to suspend the
sentence.  It deprived the defendant of an advantage which was based
on a prognosis as to his future conduct and, in any event, subject to
certain insecurities.  The court supervising the execution of sentences
could not be prevented from revoking a suspension in circumstances
which would have given it reason not to suspend the sentence at the time
of its initial decision.

        In the criminal proceedings before the Dortmund District Court
the applicant was convicted on 14 January 1987 of unlawful possession
of drugs and sentenced to ten months' imprisonment.  The execution of
the sentence was suspended on probation.  The applicant did not pursue
his appeal (Berufung).

        On 12 March 1987 the Dortmund Regional Court, deciding on
matters of grace (Gnadenstelle), suspended the remainder of the
applicant's sentence on probation until 10 March 1990.


COMPLAINTS

        The applicant complains under Article 6 para. 2 of the
Convention that the German court decisions revoking the suspension of
his sentence violated the presumption of innocence.  He considers that
the courts, on the evidence before them, could not be convinced of the
applicant's guilt as required under S. 56(f) of the Penal Code.  The
revocation of a suspension was not only a provisional measure but in
fact amounted to a penalty.
PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 5 February 1987 and
registered on 20 February 1987.

        On 9 December 1987 the Commission decided in accordance with
Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the
application to the respondent Government and to invite them to present
before 11 March 1987 their observations in writing on the
admissibility and merits of the application.

        The Government's observations were dated 14 March 1988 and
received on 21 March 1988.  The applicant's reply of 13 May 1988 was
received on 20 May 1988.

        On 24 March 1988 the President of the Commission decided that
legal aid should be granted to the applicant for the representation of
his case before the Commission.

        At the hearing the parties were represented as follows:

For the Government:

Mr.  Stöcker             Ministerialrat
                        Federal Ministry of Justice,   Agent

Mr.  Berg                Richter am Landgericht,
                        Federal Ministry of Justice,   Adviser

For the applicant

Mr.  Budde               Lawyer,                        Representative

Mr.  Vogler              Law Professor,                 Adviser

The applicant was present at the hearing.




THE LAW

        The applicant complains that the decisions of the Dortmund
Regional Court dated 21 April 1986 and the Hamm Court of Appeal dated
9 July 1986 reflect the opinion that he had committed a new criminal
offence although this charge had not yet been determined by the
competent trial court.  He considers that they amount to a violation
of Article 6 para. 2 (Art. 6-2) of the Convention which reads:

"Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law."

        The respondent Government contend that the application is
incompatible ratione materiae with the provisions of the Convention.
They compare the present case with proceedings concerning only the
kind or level of punishment and refer to the Convention organs'
case-law in this respect (Eur. Court H.R., Engel and others judgment
of 8 June 1976, Series A No. 22, para. 90;  Eur.  Commission H.R., No.
5620/72, Dec. 18.7.74 ;  No. 7058/75, Dec. 12.7.76).

        The Commission recalls that a case may raise an issue under
Article 6 para. 2 (Art. 6-2) if a court expresses an opinion as to an
accused's guilt without his having previously been proved guilty
according to law and, in particular, without his having had an
opportunity to exercise his rights of defence (cf.  Eur.  Court H.R.,
Minelli judgment of 25 March 1983, Series A no. 62, p. 18 para. 37;
mutatis mutandis, Eur.  Court H.R., Lutz/Englert/Nölkenbockhoff
judgments of 25 August 1987, Series A no. 123, p. 25 para. 60, p. 54 -
55 para. 37 and p. 79 para. 37, respectively;  cf. also Eur.
Commission H.R., No. 7986/78, Dec. 3.10.78, D.R. 13 p. 73).

        The Commission notes that in the present case the court
decisions complained of related to a criminal charge against the
applicant under the Narcotics Act in respect of which preliminary
investigations were conducted by the Dortmund Public Prosecutor's
Office since the end of 1985.

        As regards the Government's submission that the applicant can
no longer claim to be a victim of a violation of the Convention, in
the sense of Article 25 (Art. 25) of the Convention, the Commission
finds that the decision of the Dortmund Regional Court of 12 March
1987 to suspend the sentence as a matter of grace and to prolong the
period of probation did not remedy the possible violation of Article 6
para. 2 (Art. 6-2) (cf.  Eur.  Court H.R., Eckle judgment of 15 July
1982, Series A no. 51, pp. 30 - 31 para. 66).

        The Government also contend that S. 56 (f) para. 1(1) of the
German Penal Code, as applied in the present case, is in conformity
with the principles laid down by the European Court and Commission of
Human Rights as regards the presumption of innocence.  They submit in
particular that both the Dortmund Regional Court and the Hamm Court of
Appeal arrived at the conclusion that the applicant had committed
another criminal offence during his period of probation, in judicial
proceedings (justizförmiges Verfahren), in which he had the
opportunity to exercise his rights of defence.

        The Commission, however, considers that the applicant's
complaint raises complex issues of fact and law which can only be
resolved by an examination of the merits.  The application cannot,
therefore, be declared manifestly ill-founded.  No other grounds for
inadmissibility have been established.

        For these reasons, the Commission

        DECLARES THE APPLICATION ADMISSIBLE
        without prejudging the merits of the case


Secretary to the Commission         President of the Commission



    (H. C. KRÜGER)                       (C. A. NØRGAARD)