BIKAS v. GERMANY - 76607/13 (Judgment : No Article 6 - Right to a fair trial : Fifth Section) [2018] ECHR 90 (25 January 2018)

In the case of Bikas v. Germany,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Erik Møse, President,
Angelika Nußberger,
Nona Tsotsoria,
André Potocki,
Síofra O'Leary,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 19 December 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 76607/13) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Greek national, Mr Konstantinos Bikas ("the applicant"), on 28 November 2013.

2. The applicant was represented by Mr W.L. Weh, a lawyer practising in Bregenz (Austria). The German Government ("the Government") were represented by one of their Agents, Mrs K. Behr, of the Federal Ministry of Justice and Consumer Protection.

3. The applicant alleged that the presumption of innocence under Article 6 § 2 of the Convention had been breached in the criminal proceedings against him, in which the courts, when setting his sentence, had taken into consideration as an aggravating element further offences of which he had not been convicted.

4. On 21 March 2016 the application was communicated to the Government.

5. The Government of the Hellenic Republic were informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court) but they did not indicate that they wished to exercise that right.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1958 and lives in Leipzig.

A. Proceedings before the Regional Court

7. On 30 October 2009 the Munich II Public Prosecution Office charged the applicant with coercion to engage in sexual activity in at least 300 cases and with sexual coercion in another eighteen cases.

8. On 20 July 2012 the Munich II Regional Court, after taking evidence at seventeen days of hearing, issued a decision limiting the prosecution to charges concerning four incidents which had taken place between 19 and 25 August 2007. The court provisionally discontinued the proceedings in respect of all the other offences the applicant had been charged with (see paragraph 7 above), in accordance with Article 154 § 2 of the Code of Criminal Procedure (see paragraph 17 below), in view of the penalty the applicant could expect for the four remaining incidents. The applicant was further informed that if he was convicted the court could take into account findings made in respect of the other incidents when setting his sentence.

9. In a judgment delivered on the same day, the Regional Court convicted the applicant of four counts of coercion to engage in sexual activity, committed between 19 and 25 August 2007, and sentenced him to six years' imprisonment.

10. In its findings of fact, the Regional Court stated that between January 2001 and October 2007 the applicant had forced P., aged between 29 and 35 at the relevant time and suffering from a moderate mental disorder and an autistic and speech disorder, to satisfy him manually or orally on at least fifty further occasions (out of the at least 300 offences the applicant had initially been charged with, see paragraph 7 above). The court had regard to P.'s extensive description of different incidents, which happened either in the house the applicant and P. were both living in or in the applicant's car. P. had notably explained how the applicant had regularly, when his wife and son were absent, brought her into his apartment or in the basement boiler room, had undressed himself and had instructed her how to satisfy him, partly while playing pornographic films. The applicant had systematically threatened P. that she would have to return to a home for the disabled if she did not comply with his requests. From 19 to 25 August 2007, when the applicant's wife and son were on holiday, the applicant had forced P. to satisfy him orally at least twice and to satisfy him manually on two further occasions in their house or in the basement boiler room. The veracity of P.´s consistent statements was confirmed by further witnesses and three psychological expert opinions on P.´s credibility and ability to testify.

11. The Regional Court explained that it had restricted the conviction to the four events that had taken place between 19 and 25 August 2007. It had discontinued the proceedings in respect of the at least 300 further charges under Article 154 § 2 of the Code of Criminal Procedure but was convinced that in at least fifty cases there had been incidents comparable to the four of which the applicant was formally convicted. It had simply been impossible to determine their exact time and place due to the victim's speech disorder.

12. In the impugned passages of the judgment, the Regional Court found as follows:

"The chamber is convinced on the basis of the credible statement by the injured party that in addition to the four cases between January 2001 and October 2007 on which judgment was passed, at least 50 other comparable cases occurred. The injured party herself said that the applicant had coerced her to perform sexual acts from as early as 2001. From 2003, the frequency of these incidents had increased and the applicant had demanded sexual gratification from her approximately every 1½ weeks. Even if one were to disregard the years 2001 and 2002 and August and October 2007 in favour of the applicant and also to presume that from 2003 onwards, such incidents occurred only once a month there are 56 cases. Following the deduction of a further safety margin the chamber assumes that there were at least 50 more, comparable cases during the total period from January 2001 to October 2007.

...

On the other hand, the chamber considers as an aggravating element that it is convinced that, in addition to the four incidents in August 2007 which the accused has been convicted of, there have been at least 50 comparable incidents since January 2001. A conviction for those events was only made impossible by the victim's incapacity to substantiate them in terms of the time and the place where they happened in a manner making it possible to define them as procedural offences (offences in the procedural sense). As it could no longer be determined with certainty in which cases the accused, by his threats, made the victim satisfy him orally or manually, the chamber will proceed on the basis that there were 50 further cases of manual satisfaction."

("Die Kammer ist aufgrund der glaubhaften Aussage der Geschädigten davon überzeugt, dass es neben den vier abgeurteilten Taten im Zeitraum Januar 2001 bis Oktober 2007 zu mindestens 50 weiteren, vergleichbaren Fällen kam. Die Geschädigte selbst gab an, der Angeklagte habe sie bereits ab dem Jahr 2001 zu sexuellen Handlungen genötigt. Ab dem Jahr 2003 sei die Frequenz dieser Vorfälle gestiegen und der Angeklagte habe ungefähr alle 1 ½ Wochen sexuelle Befriedigung von ihr verlangt. Selbst wenn man zugunsten des Angeklagten die Jahr 2001 und 2002 sowie den August und Oktober 2007 unberücksichtigt lässt und zudem davon ausgeht, dass es ab dem Jahr 2003 lediglich einmal im Monat zu derartigen Vorfällen kam, so ergeben sich 56 Fälle. Nach Abzug eines weiteren Sicherheitsabschlags geht die Kammer von mindestens 50 weiteren, vergleichbaren Fällen im gesamten Zeitraum von Januar 2001 bis Oktober 2007 aus.

...

Andererseits wertet die Kammer zu Lasten des Angeklagten den Umstand, dass es nach Überzeugung der Kammer neben den verurteilten vier Vorfällen im August 2007 bereits ab Januar 2001 zu mindestens 50 vergleichbaren Vorfällen gekommen war. Eine Verurteilung dieser Vorfälle scheiterte lediglich an der mangelnden Fähigkeit der Geschädigten, die Vorfälle zeitlich und örtlich so zu konkretisieren, dass diese als prozessuale Taten abgrenzbar waren. Da sich nicht mehr mit Sicherheit aufklären ließ, in welchen Fällen der Angeklagte die Geschädigte durch seine Drohung zu einer oralen und in welchen zu einer manuellen Befriedigung brachte, geht die Kammer insoweit von 50 weiteren Fällen der manuellen Befriedigung aus.")

B. Proceedings before the Federal Court of Justice and the Federal Constitutional Court

13. In an appeal on points of law to the Federal Court of Justice, the applicant complained that the Regional Court had breached the presumption of innocence guaranteed by Article 6 § 2 of the Convention by taking fifty unproven incidents into account as an aggravating factor meriting a more severe sentence, despite the fact that the proceedings in relation to them had been discontinued under Article 154 of the Code of Criminal Procedure.

14. The Federal Public Prosecutor General argued that the Regional Court had been entitled to take account of the sexual offences committed previously by the applicant as an aggravating element as part of his previous history (Vorleben) and thus as one of the elements in setting his sentence under Article 46 § 2 of the Criminal Code (see paragraph 18 below). In accordance with the Federal Court of Justice's case-law, the Regional Court had made sufficient findings of fact establishing a minimum level of guilt in respect to those offences.

15. On 6 February 2013 the Federal Court of Justice dismissed the applicant's appeal as ill-founded, without giving specific reasons.

16. In a decision of 16 May 2013, which was served on the applicant's lawyer on 28 May 2013, the Federal Constitutional Court, without giving reasons, declined to consider a constitutional complaint by the applicant, in which he had again complained of a breach of the presumption of innocence (file no. 2 BvR 575/13).

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Code of Criminal Procedure

17. Article 154 of the Code of Criminal Procedure contains rules on the partial termination of a prosecution in cases in which several offences are at issue. The provision, which serves to simplify and speed up criminal proceedings (compare, inter alia, Federal Court of Justice, file no. 2 StR 271/05, decision of 11 October 2006, § 8) reads, in so far as relevant:

"(1) The public prosecution office may dispense with prosecuting an offence:

1. if the penalty ... which might result from the prosecution is not particularly significant in addition to any penalty ... imposed upon the accused in a final decision for another offence or which he can expect for another offence, or

...

(2) If charges have already been preferred, the court, upon an application by the public prosecution office, may provisionally discontinue the proceedings at any stage.

...

(4) If the proceedings have been provisionally discontinued on account of a penalty ... which is to be expected for another offence, the proceedings may be resumed, unless barred by limitation in the meantime, within three months of the judgment imposed for the other offence becoming final.

(5) If the court has provisionally discontinued the proceedings, a court order shall be required for their resumption."

B. The Criminal Code

18. Article 46 of the Criminal Code on the principles of sentencing, in so far as relevant, provides:

"(2) When sentencing, the court shall weigh the circumstances in favour of and against the offender. Consideration shall in particular be given to

...

the offender's previous history (Vorleben), his personal and financial circumstances;

..."

C. Relevant case-law of the domestic courts

1. Case-law of the Federal Court of Justice

19. Under well-established Federal Court of Justice case-law the criminal courts can take into account offences for which proceedings have been discontinued under Article 154 of the Code of Criminal Procedure as an aggravating element in the sentencing process. That can happen on condition that the existence of the offences has been established at trial to the satisfaction of the court in accordance with the law on criminal procedure (see file no. 2 StR 230/90, judgment of 30 November 1990, §§ 11-12; file no. 1 StR 631/94, decision of 10 November 1994, § 2; file no. 2 StR 118/95, decision of 7 April 1995, § 16; file no. 5 StR 143/00, decision of 2 August 2000, § 4; and file no. 5 StR 425/12, decision of 12 September 2012, § 3). This means that, even if it is not required to make findings of fact which are as precise as the findings in relation to the offences of which the person concerned is convicted, the further incidents must have been established in a sufficiently precise manner which allows for their gravity to be assessed. The sentencing may not be based on a mere suspicion that further criminal offences have been committed (see file no. 3 StR 179/95, decision of 12 May 1995, § 3; 3 StR 251/09, decision of 2 July 2009, § 3; and file no. 5 StR 425/12, cited above, § 3).

2. Case-law of the Federal Constitutional Court

20. Having regard also to the Court's case-law, the Federal Constitutional Court has reiterated that the presumption of innocence, which derives from the principle of the rule of law, prohibits the taking of measures against a defendant in criminal proceedings which amounts to treating him as guilty without that guilt having been proved in a procedure prescribed by law (see file nos. 2 BvR 589/79, 2 BvR 740/81 and 2 BvR 284/85, decision of 26 March 1987, § 36; file no. 2 BvR 254/88 and 2 BvR 1343/88, decision of 29 May 1990, §§ 33 and 41; and file no. 2 BvR 366/10, decision of 5 April 2010, § 6). Once a defendant has properly been proved guilty of a particular criminal offence, the presumption of innocence no longer applies in relation to allegations about the accused's character as part of the sentencing process when having regard to the accused's previous history for the purposes of Article 46 § 2 of the Criminal Code, unless the allegations are of such a nature and degree as to amount to the bringing of a new charge within the autonomous meaning of that notion in the European Convention on Human Rights (see file no. 2 BvR 366/10, cited above, §§ 7 and 9).

21. According to the Federal Constitutional Court, the reasoning of a criminal court's decision may breach the presumption of innocence, particularly if proceedings for an offence have been discontinued but the defendant has nevertheless been considered guilty of the offence without the proceedings prescribed by law to establish his or her guilt having been conducted (see file nos. 2 BvR 589/79 and others, cited above, § 42 with further references; for a summary of that decision see also Englert v. Germany, 25 August 1987, § 22, Series A no. 123; and file no. 2 BvR 254/88 and 2 BvR 1343/88, cited above, §§ 39 and 51). However, if a trial has been conducted and has reached the stage at which a verdict can be delivered (Schuldspruchreife), the criminal court, if it considers it established that the defendant is guilty, is not precluded from making a statement to that effect in a decision discontinuing proceedings in respect of the offence in question (see file nos. 2 BvR 589/79 and others, cited above, § 43, and file no. 2 BvR 254/88 and 2 BvR 1343/88, cited above, § 40).

22. Under the Federal Constitutional Court's case-law, it is essential for rebutting the presumption of innocence in respect of criminal offences that the accused's defence rights as laid down in the Article 6 §§ 1 and 3 of the Convention were respected in the criminal proceedings with regard to these offences, that is, that the accused was informed of the nature of the accusations in this respect (Article 6 § 3 (a)), had adequate time and facilities to prepare his defence (Article 6 § 3 (b)) and that the principle against self-incrimination under Article 6 was respected (see file no. 2 BvR 366/10, cited above, §§ 10-13). Once this has been done and the criminal court is persuaded that the accused committed the acts in question in proceedings which reached the stage at which a verdict can be delivered, the presumption of innocence is considered as rebutted. The accused is then considered as having "properly been proved guilty" of the criminal offences in question, as required by the European Court of Human Rights (reference was made to Böhmer v. Germany, no. 37568/97, § 55, 3 October 2002), even if he or she was not (and in certain circumstances could not be) convicted of these offences under domestic law in the proceedings at issue (compare file nos. 2 BvR 589/79 and others, cited above, §§ 42-43 -�proceedings discontinued on account of insignificant guilt; and file no. 2 BvR 366/10, cited above, §§ 7, 8 and 10 et seq. -� acts committed prior to the offences with which the accused was charged in the proceedings taken into account in the sentencing process).

D. Criminal prosecution of serial offences

23. Following a leading decision of 3 May 1994 of the Federal Court of Justice (Grand Chamber, file nos. GSSt 2/93 and GSSt 3, 93, published in the official reports, BGHSt, volume 40, pp. 138-168), serial offences, in particular sexual offences, committed repeatedly in a similar manner in accordance with the perpetrator's intention, could in practice no longer be prosecuted as one continuous offence (fortgesetztes Delikt). The Federal Court of Justice found that, in particular, considerations of procedural economy were not sufficient to justify that several acts, each of which constituted an offence, should be considered as only one - continuous - act and offence.

24. The Federal Court of Justice found that notably in the context of repeated sexual offences, it was not sufficient for convicting a person to estimate the minimum number of comparable offences based on the victim's statement on the average frequency of these offences, despite the recurring difficulties in making sufficiently concrete findings in respect of such offences. It was necessary for the trial court to be convinced of each individual offence in a series of offences. This criterion would be met if the court was convinced that in a specific period of time there had been a certain minimum number of individualised offences (see file no. 3 StR 518/95, decision of 27 March 1996, BGHSt, volume 42, pp. 107-�112, and file no. 5 StR 169/08, decision of 9 June 2008, NSTZ-RR 2008, p. 338 with further references).

THE LAW

ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION

25. The applicant complained that the Regional Court had violated the presumption of innocence when determining his penalty as it had taken into account, as an aggravating element, sexual offences of which he had not been found guilty as the proceedings against him for those offences had been discontinued. He relied on Article 6 § 2 of the Convention, which reads as follows:

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

26. The Government contested that argument.

A. Admissibility

1. The parties' submissions

27. Relying, in particular, on the case of Phillips v. the United Kingdom (no. 41087/98, § 35, ECHR 2001-�VII), the Government took the view that the presumption of innocence had no longer applied when the impugned statements had been made in the criminal proceedings against the applicant. They conceded that the applicant had not been convicted of the fifty additional cases of coercion to engage in sexual activity which had been taken into account in the sentencing process. However, in accordance with domestic law and, in particular, the Federal Court of Justice's and Federal Constitutional Court's case-law (see paragraphs 19-22 above), the Regional Court had nevertheless been sufficiently convinced that the applicant had committed those offences after a thorough taking of evidence at seventeen days of hearings. He had thus been properly "proved guilty according to law" of those offences within the meaning of Article 6 § 2 of the Convention by the competent Regional Court so that the protection afforded by the presumption of innocence had ceased to have effect.

28. In the Government's view, the fact that the proceedings had been discontinued under Article 154 § 2 of the Code of Criminal Procedure in respect of those further counts of coercion did not alter that finding. A discontinuation of proceedings under that provision was not based on a lack of evidence of the offences in question. It served the practical purpose of speeding up proceedings if a conviction for some of the offences that had been committed was sufficient to achieve the aim of punishment.

29. The applicant argued that Article 6 § 2 was applicable. Relying, in particular, on the Court's judgment in the case of Cleve v. Germany (no. 48144/09, 15 January 2015), he argued that an accused was only properly proved guilty of offences he had been charged with if he was convicted of them. However, he had not been convicted of the fifty further sexual offences which had been taken into account in the sentencing process.

2. The Court's assessment

(a) Recapitulation of the relevant principles

30. As to the period of time during which the presumption of innocence is applicable, the Court reiterates that Article 6 § 2 applies to everyone "charged with a criminal offence" within the autonomous meaning of this notion in the Convention (see Phillips, cited above, § 35; Ringvold v. Norway, no. 34964/97, § 36, ECHR 2003-�II, and Allen v. the United Kingdom [GC], no. 25424/09, § 95, ECHR 2013), that is, as of "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence" (see Reinhardt and Slimane-Kaïd v. France, 31 March 1998, § 93, Reports of Judgments and Decisions 1998-�II with further references).

31. In keeping with the need to ensure that the right guaranteed by Article 6 § 2 is practical and effective, the presumption of innocence does not only apply in the context of pending criminal proceedings. It also protects individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they are in fact guilty of the offence charged (see Ringvold, cited above, § 36; Allen, cited above, § 94; and Cleve, cited above, § 35).

32. Whenever the question of the applicability of Article 6 § 2 arises in the context of such subsequent proceedings, the applicant must demonstrate the existence of a link between the concluded criminal proceedings and the subsequent proceedings. Such a link is likely to be present, for example, where the subsequent proceedings require examination of the outcome of the prior criminal proceedings and, in particular, where they oblige the court to analyse the criminal judgment, to engage in a review or evaluation of the evidence in the criminal file, to assess the applicant's participation in some or all of the events leading to the criminal charge, or to comment on the subsisting indications of the applicant's possible guilt (see Allen, cited above, § 104).

33. According to the wording of Article 6 § 2, the presumption of innocence applies to everyone charged with a criminal offence "until proved guilty according to law". The protection afforded by that presumption thus ceases once an accused has properly been proved guilty of the particular offence charged with. Thereafter, Article 6 § 2 can have no application in relation to allegations made about the accused's character and conduct as part of the sentencing process, unless such accusations are of such a nature and degree as to amount to the bringing of a new "charge" within the autonomous Convention meaning (see Phillips, § 35; Allen, § 106, and Cleve, § 37, all cited above).

34. It follows from the reasoning of a number of the Court's judgments that the presumption of innocence ceases to be applicable at the final conviction (see, inter alia, Konstas, cited above, §§ 35-36, which related to appeal proceedings; Vulakh and Others v. Russia, no. 33468/03, § 36, 10 January 2012; and Cleve, cited above, § 59).

(b) Application of those principles to the present case

35. In determining whether, in the light of the above principles, Article 6 § 2 was applicable to the impugned findings of the Regional Court in the present case, the Court notes that the applicant was initially also "charged", for the purposes of Article 6 § 2, with committing a large number of offences, including the at least fifty further counts of coercion to engage in sexual activity (see paragraphs 7 and 10 above), given that he was indicted and tried in the proceedings before the Regional Court for those offences. In a decision taken on the last day of the trial, the Regional Court provisionally discontinued the criminal proceedings for those offences under Article 154 of the Code of Criminal Procedure (see paragraph 8 above). Under that provision, the proceedings could be provisionally discontinued as the penalty which might have resulted from prosecution for those fifty offences was not considered as being particularly significant in addition to the penalty which the applicant could expect for the remaining four counts of coercion to engage in sexual activity. Under German case-law this discontinuation did not exclude, however, their consideration as an aggravating element in the sentencing process for a conviction if their existence had been sufficiently established (see paragraph 19 above).

36. In this context, the Court notes that when the Regional Court delivered its judgment containing the impugned statements, which was immediately after the proceedings had been provisionally discontinued in respect of the fifty further offences in question, the applicant had been warned that those counts of coercion could be taken into account at the sentencing stage for the remaining four counts (see paragraph 8 above), in conformity with settled case-law under Article 154 of the Code of Criminal Procedure and Article 46 § 2 of the Criminal Code (see paragraphs 19-�22 above). The Regional Court did so in its sentencing procedure (see paragraph 12 above). In the same judgment, the Regional Court amply evaluated the evidence concerning the fifty further offences and repeatedly stated that it was convinced that they had taken place (see paragraphs 10-12 above).

37. In these circumstances, the Court considers that, at the time when the Regional Court took into account the fifty further incidents of coercion to engage in sexual activity, the applicant still had to be considered as notified of an allegation that he had committed further counts of coercion to engage in sexual activity and thus as being "charged" with, inter alia, the fifty further offences here at issue within the autonomous meaning of this notion in Article 6 § 2 of the Convention (see paragraph 32 above). Article 6 § 2, which applies first and foremost in the context of pending criminal proceedings, was therefore applicable in the proceedings at issue.

38. The Court therefore concludes that Article 6 § 2 is applicable to the impugned statements made by the Regional Court in its judgment. The Government's objection on that point must therefore be dismissed.

39. The Court further considers that the application is not manifestly ill-�founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties' submissions

40. The applicant argued that the Regional Court, in its reasoning given when fixing his sentence, had violated the presumption of innocence under Article 6 § 2 of the Convention. In particular, the court had stated in the impugned passage of its judgment that it was "convinced that, in addition to the four incidents in August 2007 which the accused has been convicted of, there have been at least 50 similar incidents since January 2001" (see paragraph 12 above). The court had thereby expressed the opinion that he was guilty of sexual offences committed before August 2007. The court had done so although it had discontinued the proceedings in respect of those further offences as it had not been possible to prove them as required by the law on criminal procedure. Consequently, as shown in the operative part of the judgment, it had only found him guilty and convicted him of four offences committed in August 2007. The impugned reasoning, on the basis of which his penalty had been substantially increased, was therefore incompatible with the presumption of innocence.

41. The Government took the view that Article 6 § 2 of the Convention had not been breached in the criminal proceedings at issue. When setting the applicant's sentence, the Regional Court had taken into account fifty further counts of coercion to engage in sexual activity as an aggravating element when assessing the applicant's previous history for the purposes of Article 46 § 2 of the Criminal Code (see paragraph 18 above). However, that had not breached the presumption of innocence, despite the fact that the proceedings for those charges had been discontinued and the applicant had not been convicted of them. As explained above (see paragraph 27), the Regional Court had sufficiently established in the course of the trial that the applicant was guilty of those offences so that the presumption of innocence had been rebutted.

2. The Court's assessment

(a) Recapitulation of the relevant principles

42. Article 6 § 2 safeguards the right to be "presumed innocent until proved guilty according to law". Viewed as a procedural guarantee in the context of a criminal trial itself, the presumption of innocence imposes requirements in respect of, inter alia, the burden of proof, legal presumptions of fact and law, the privilege against self-incrimination, pre-�trial publicity and premature expressions, by the trial court or by other public officials, of a defendant's guilt (see Allen v. the United Kingdom [GC], no. 25424/09, § 93, ECHR 2013). When carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged, and any doubt should benefit the accused (Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 77, Series A no. 146).

43. However, in keeping with the need to ensure that the right guaranteed by Article 6 § 2 is practical and effective, the presumption of innocence also has another aspect. Its general aim, in this second aspect, is to protect individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they are in fact guilty of the offence charged. In these cases, the presumption of innocence has already operated, through the application at trial of the various requirements inherent in the procedural guarantee it affords, to prevent an unfair criminal conviction being imposed. Without protection to ensure respect for the acquittal or the discontinuation decision in any other proceedings, the fair-�trial guarantees of Article 6 § 2 could risk becoming theoretical and illusory (see Allen, cited above, § 94). The Court has found that "following discontinuation of criminal proceedings the presumption of innocence requires that the lack of a person's criminal conviction be preserved in any other proceedings of whatever nature" (see Allen, cited above, § 102).

44. The Court reiterates that in defining the requirements for compliance with the presumption of innocence it has drawn a distinction between cases where a final acquittal judgment has been handed down and those where criminal proceedings have been discontinued. In cases concerning statements made after an acquittal has become final, it has considered that the voicing of suspicions regarding an accused's innocence is no longer admissible (see Sekanina v. Austria, 25 August 1993, § 30, Series A no. 266-�A for the standards in that regard, and Allen, cited above, § 122 with further references). In contrast, the presumption of innocence will only be violated in cases concerning statements after the discontinuation of criminal proceedings if, without the accused's having previously been proved guilty according to law and, in particular, without his having had an opportunity to exercise the rights of the defence, a judicial decision concerning him reflects an opinion that he is guilty (see, inter alia, Minelli v. Switzerland, 25 March 1983, § 37, Series A no. 62, and Englert v. Germany, 25 August 1987, § 37, Series A no. 123).

45. A judicial decision may reflect that opinion even in the absence of any formal finding of guilt; it suffices that there is some reasoning suggesting that the court regards the accused as guilty (see Böhmer, cited above, § 54; Baars v. the Netherlands, no. 44320/98, § 26, 28 October 2003; and Cleve, cited above, § 53).

46. The Court further reiterates that in cases concerning compliance with the presumption of innocence, the language used by the decision-�maker will be of critical importance in assessing the compatibility of the decision and its reasoning with Article 6 § 2 (compare Allen, cited above, § 126 with further references). Regard must be had, in this respect, to the nature and context of the particular proceedings in which the impugned statements were made. The Court must determine the true sense of the impugned statements, having regard to the particular circumstances in which they were made (compare Petyo Petkov v. Bulgaria, no. 32130/03, § 90, 7 January 2010). Depending on the circumstances, even the use of some unfortunate language may thus be found not to be in breach of Article 6 § 2 (compare Englert, cited above, §§ 39 and 41; Allen, cited above, § 126; and Cleve, cited above, §§ 54-55).

47. It emerges from the above examination of the Court's case-law that in examining the compliance of a statement or decision with Article 6 § 2, it is decisive to have regard to the nature and context of the proceedings in which the statement was made or the decision was adopted (see, mutatis mutandis, Allen, cited above, § 125).

(b) Application of those principles to the present case

48. The Court observes at the outset that the situations at issue in the cases previously examined by the Court are different from that which is at issue in the present application. In the cases of Böhmer (cited above, §§ 58-�70) and El Kaada (cited above, §§ 56-66), where the Court found a violation of Article 6 § 2, the domestic courts revoked the suspension of a previous prison sentence finding that the applicant had committed a new offence of which he had not been convicted. Moreover, the statements declaring the applicant guilty of the new offence were made by different courts than the competent trial court. In the present case, however, the statements about the applicant's guilt were made by the court before which the trial had been conducted and in a judgment which convicted the applicant of criminal offences and established that a certain number of incidents had occurred as part of a broader series of events.

49. The case of Phillips (cited above, §§ 30-36), where the Court did not consider Article 6 § 2 applicable, is equally different from the present case. Applying a statutory assumption, the domestic court had made statements in confiscation proceedings about the accused's conduct following his formal conviction for a drug offence.

50. In Cleve (cited above, §§ 56-65) the domestic court, when acquitting the applicant of charges of sexual abuse, had stated that he had actually carried out sexual assaults on his daughter in his car. However, those acts could not be substantiated, in terms of either their intensity or their time frame, in a manner that would have sufficed to secure a conviction. The Court thus found a breach of Article 6 § 2. That case related to reasoning given in an acquittal judgment which amounted to a finding of guilt in respect of the offences concerned, whereas the impugned statements in the present case were made after the proceedings in this respect had been provisionally discontinued.

51. The Court observes that the Regional Court stated in the impugned passage of its judgment that "it is convinced that, in addition to the four incidents in August 2007 which the accused has been convicted of, there have been at least 50 similar incidents since January 2001". The Court finds that the impugned statements as such clearly show that the Regional Court found the applicant guilty of having forced P. to engage in sexual activity on further occasions. It appears that this is in fact uncontested between the parties.

52. However, in determining whether the impugned statements amounted to a breach of the presumption of innocence, the Court, as stressed in its above-mentioned case-law, may not lose sight of the nature and the procedural context in which these statements were made (see paragraph 48 above).

53. The provisional discontinuation of the proceedings in respect of, in particular, the fifty further events took place on the last day of the trial, following seventeen days of taking of evidence, and on the same day as that on which the judgment was delivered. All the applicant's defence rights were observed during the trial (compare paragraph 22 above). At the moment of the provisional discontinuation of the proceedings, for reasons of procedural economy, the applicant was warned that the said events might be used during sentencing.

54. The judgment focusing on four events and taking into account, when measuring out the sentence, fifty further offences described the facts established during the entire time span during which the alleged offences had taken place. The Regional Court stated several times in the judgment that it was convinced that the other fifty events had taken place, but that it was not possible to provide specificity as regards the exact place and time of all these events (see paragraphs 10-12 above).

55. The Regional Court thus rendered a judgment in which it explicitly convicted the accused of four counts of coercion to engage in sexual activity. While the four incidents were explicitly mentioned in the operative part of the judgment, the other fifty incidents were described in the reasoning of the judgment and were taken into account as an aggravating element in determining the penalty.

56. The Regional Court can accordingly be said to have applied, pursuant to domestic law, high, but different standards of proof for the determination of the applicant's guilt in respect of these incidents. While for the first four incidents the court had all elements to define the crimes as offences in the procedural sense, for fifty further incidents in respect of which it discontinued the proceedings it was convinced that the accused was guilty, but could not indicate the exact time and place at which the incidents took place owing to the victim's speech disorder (see paragraph 11 above). In this context the Court takes into account that the other fifty incidents were, as stated by the Regional Court, indeed similar and closely linked: they all related to the same type of offences, i.e. coercion to engage in sexual activity; they had been committed on the same victim within a certain period, from January 2001 to October 2007, with precisely the same intention of sexual abuse. This supported the finding that in such a case, against the background that the occurrence of the acts have been proven beyond reasonable doubt, it was not necessary to determine the exact time and place of every committed act. Thereby, the courts fulfilled the requirements which have been established in the domestic courts' case-law regarding the assessment of evidence in accordance with the particularities of serial offences in the field of sexual abuse (see paragraph 24 above).

57. Finally, the Court also recalls that Article 6 § 2 does not apply to allegations made about the accused's character and conduct as part of the sentencing process (see paragraphs 33 above).

58. The Court considers that, in these circumstances, the applicant was found guilty, in substance, also of the fifty further offences, to which a different standard of proof was applied. That standard of proof was sufficient, under domestic law, for taking these offences into account in the sentencing process, but not for formally convicting the applicant thereof.

59. The Court observes that the standard of proof necessary for finding a person guilty of an offence is for the national authorities to determine. The Court therefore considers that the applicant in the present case was proved guilty, in accordance with the standards which were, and could be fixed by domestic law, also of the fifty further incidents in question and that the presumption of innocence was therefore rebutted.

60. Finally, the Court takes into account the States' positive obligation under Articles 3 and 8, in particular with respect to sexual offences, to safeguard the individual's physical integrity (see Söderman v. Sweden [GC], no. 5786/08, § 83, ECHR 2013). Furthermore, it does not overlook that the German courts' case-law authorising the domestic courts to take into account, in the sentencing process, further acts, is both transparent and serves the useful purpose of procedural economy. It would add, however, that an issue would arise under the Convention if, following the conclusion of the criminal proceedings in which such further acts were taken into account as an aggravating element, the proceedings were resumed under Section 154 (4) in respect of these acts and the person concerned were formally convicted thereof.

61. The Court concludes that the Regional Court's impugned statements did not breach the applicant's right to the presumption of innocence. There has accordingly been no violation of Article 6 § 2 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Dismisses the Government's objection that Article 6 § 2 of the Convention was inapplicable;

2. Declares the application admissible;

3. Holds that there has been no violation of Article 6 § 2 of the Convention.

Done in English, and notified in writing on 25 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia WesterdiekErik Møse
RegistrarPresident

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You are here: BAILII >> Databases >> European Court of Human Rights >> BIKAS v. GERMANY - 76607/13 (Judgment : No Article 6 - Right to a fair trial : Fifth Section) [2018] ECHR 90 (25 January 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/90.html Cite as: [2018] ECHR 90