83 BVerf GE 119 (1990)
This constitutional complaint challenges Section 56.b.2.3. of the Criminal Code (Strafgesetzbuch, hereafter CC). Section 56.b. regulates the obligations a court may impose upon a criminal whose sentence was suspended with probation. Section 56.b.1. generally allows courts to impose obligations on convicts, with the limitation that these obligations must be bearable. Section 56.b.2.1. allows the courts to impose upon the convict the duty to make good the damage his criminal act caused. Section 56.b.2.2. provides that courts may also oblige the criminal to make monetary payments to the state or to organizations benefiting the public. Section 56.b.2.3. enables the courts to command the convict to render any other service to the benefit of the public.
The petitioner received a suspended sentence of ten months with probation from a trial court (Schoeffengericht) for attempted fraud, libel and slander on December 7, 1983. The petitioner appealed to that decision at the District Court in Ulm. The District Court upheld the decision of the trial court on May 21, 1984 and declared that the petitioner had to pay DM 20,000 altogether to an organization benefiting the public. After another unsuccessful attempt to appeal, the petitioner was supposed to commence paying installments from January 25, 1985 onwards but he failed to do so. The district attorney's office filed a motion to end the probation. The petitioner, on the other hand, asked for a deferment of payment arguing his economic situation had worsened and he only had DM 459 monthly income. On March 10, 1986 the trial court extended the petitioner's probation time by one year and deferred his obligation to pay until November 1, 1985, from when on he was supposed to pay monthly installments of DM 1,000.
On October 18, 1985 the petitioner filed a motion asking to reduce his obligation to pay to DM 15. He reasoned that his studies took him longer than he had expected and therefore his income was below his expectations. Instead of the required DM 1,000 the petitioner paid DM 15. On March 20, 1987 the trial court altered its decision from March 10, 1986. Instead of the full monetary amount, the court ordered the petitioner to work 300 community hours following Section 56.b.2.3. of the CC and pay monthly installments of DM 300 from April 15, 1987 onward until the amount of DM 10,000 was reached. In its decision the trial court noted that the petitioner was a law student in his 27th semester and concluded that he did not pursue his studies seriously.
The petitioner appealed to the decision of the trial court in front of the District Court. He argued that the required monthly installments stand in gross disproportion to his income. Moreover, he contended that the 300 hours of community service violate his basic right to choose an occupation as protected by Article 12.2 of the Basic Law. The District Court rejected the petitioner's appeal, holding that he could earn more and does not take his studies seriously. Moreover, the court contended that the conversion of part of the monetary obligation into community hours was clearly permitted by Section 56.b.2.3. of the and not in violation of any basic right.
At this point the petitioner filed a constitutional complaint directly against the decisions of the trial court and the District Court and indirectly against Section 56.2.3. of the CC. Among other things, he argued that the two decisions violate his basic rights from Article 1.1. in relation the principle of a state based on the social justice (Sozialstaatsprinzip), Article 2.1. and 2.2., as well as Article 12.2. of the Basic Law. The petitioner contended that after paying installments of DM 300 each month he would only have DM 159 left to live on. This would clearly not be enough. Moreover he maintained that 300 hours of community service or the equivalent of 38 workdays are, from the perspective of Article 12.2. of the Basic Law, an occupation. This, in combination with the danger that in cases of non-compliance his probation might be lifted and he end up in prison, amounts to direct forced labor.
The court then summarized statements by the Federal Minister of Justice and the Minister of Justice of the state Baden Wurttemberg. The Federal Minister recognized the danger of a violation of Articles 12.2. and 12.3. of the Basic Law, however, he maintained that a proper interpretation by the courts of Section 56.b.2.3. of the CC can prevent misuse of the regulation. The State Minister also recognized the danger of misuse by the courts of Section 56.b.2.3. but argued that the 300 hours of community service imposed on the petitioner do not violate any of his basic rights.
Does the imposition of community service in exchange of a suspended prison term with probation violate the right to choose one's occupation and amount to forced labor and thus constitute a violation of Article 12.2. and 12.3. of the Basic Law?
Holding by the Second Senate:
No, it does not.
The constitutional complaint is impermissible with respect to its challenge of the obligation [imposed] upon the petitioner to pay a monetary amount of DM 10,000 in monthly installments of DM 300. The argument of the petitioner does not pass the requirements of Section 92 of the Federal Constitutional Court Law. In judging the petitioner's economic capabilities, the District Court did not solely focus on his actually earned income of DM 459. It has rather [also taken into account] that the petitioner could achieve a higher income; his assertion that he could not earn more due to his full-time studies has not been followed [by the District Court], because he actually did not pursue [full-time studies. The petitioner] fails to outline how such an assessment, [which is based on] a consideration of the actual circumstances, and the legal conclusions derived therefrom could violate [his] constitutional rights. The mere claim that the fact-finding is wrong is not enough.
Otherwise the constitutional complaint is unjustified...
The regulation of Section 56.b.2. of the CC is, as far as it permits in Subsection 3 the imposition of a duty to perform [work for the benefit of the community for convicts] on probation, is compatible with the Basic Law. It does not violate the prohibition of an obligation to work (Arbeitszwang) and forced labor (Zwangsarbeit) (Article 12.2. and 12.3. of the Basic Law); it is sufficiently concrete (Article 103.2. of the Basic Law) and [it] neither violates the basic right to choose a profession (Article 12.1. of the Basic Law) nor the basic right to develop one's personality (Article 2.1. of the Basic Law).
1. Section 56.b.2.3. of the CC, which empowers the courts to impose upon [the convict on probation a duty] to perform work for the benefit of the community, does not violate the prohibition of an obligation to work and forced labor of Article 12.2. and 12.3. of the Basic Law.
a) The Senate elaborated in its decision from January 13, 1987 that the normative meaning and scope of the named constitutional regulations cannot solely be grasped from the common meaning of the words; rather, to fathom [normative meaning and scope] requires [one] to look at the legal and historical background of the conception of the constitutional norm as well as its aim, [at] how the [regulation] presented itself [during] the deliberations and [at] how it finally found its expression in the context of norms (Normzusammenhang).
The [legal and historical background of the regulations] which has been described in detail and appreciated [in the decision from January 13, 1987] results [in the following]: Declared aim of the commitment in Article 12.2. and 12.3. of the Basic Law was to securely prevent any degradation of persons by the application of certain methods of [being put to work] which are common in states which are being ruled in a totalitarian manner. The Senate concluded therefrom that [one] can derive from the basic intentions of the authors of the Basic Law and the exceptions which they provided for, that, although the prohibition of an obligation to work and forced labor must be understood comprehensively, [the regulations] require in their periphery a drawing of boundaries by means of interpretation.
The Senate sticks to that.
b) Limited duties to work, which are imposed upon the affected [person] by a judge within the framework--in the nature of the one [in front of the court]--of a developed and graded reaction and sanctioning system as a consequence of an offense perpetrated by the [affected person], fall, under certain circumstances, not within the realm protected by Article 12.2. and 12.3. of the Basic Law. The Senate assumed this for an educational regulation which provided for the order to young persons and adolescents, pursuant Section 10.1.3.4. of the youth law, to perform work (citing the decision from January 13, 1987). The same holds--at least in the current legal form--for a duty, imposed in the form of a probation order as satisfaction for a committed offense, which [consists of work] beneficial to the public. This is so due to the following deliberations:
aa) The probation order in the form of Section 56.b.2.3. of the CC is part of the comprehensive regulations on suspended sentences with probation and therefore developed and limited. It does not constitute a compulsion to work in the sense of a sentence to work (Arbeitsstrafe). Rather, it represents a way--by imposing a duty to work--to avoid the execution of a [legally deserved] prison term and due to this specific purpose is subject to a specific temporary and factual limitation.
[This argument is based] on the expectation, which is presumed in every probation decision following Section 56 of the CC, of the court that the convict will take the sentence as a warning and, in the future, even without the impression of an executed sentence, will commit no more offenses. [This is already sufficient to explain] that a probation order pursuant to Section 56.b.2.3. of the CC may not have such an extent that it becomes equal to a sentence.
Furthermore, the duty not to impose unbearable obligations on the convict (Section 56.b.1. second sentence of the CC) protects from a magnitude of obligations which individually cannot be borne. Therefore it would not be permissible to impose upon the convict obligations to the benefit of the public which, in their magnitude or fashion, would be incompatible with his occupation, such as a paid occupation, occupational training or also with the fulfillment of his right to custody for children. Moreover, the compliance with all the obligations [related to the probation] (redress for damages, monetary payments, other performances beneficial to the public), may not amount to a burden, which would not take into account the concrete circumstances of life of the convict.
bb) At the time when the Basic Law was being [formulated] the criminal law already provided for work as a means to avoid a prison term. According to Sections 28a, 28b, and 29 of [an old] Criminal Code it was possible to refrain from executing fines, if it was foreseeable that they could not [be paid] with the movable wealth of the convict; the agency executing the sentence could in such cases permit the convict to erase [a fine he was unable to pay] by Aunpaid work@ in order to prevent that [such a fine would be replaced by a prison term]. Moreover, [there] existed regulations, although they were at the time part of mercy law, according to which a conditional suspension of a prison term could be linked to an obligation to participate in work that is in the public interest...
c) The sphere protected by Article 12.2 and 12.3. of the Basic Law with the boundaries as outlined [above] is in agreement with the, also for the interpretation of the Basic Rights important, standard set by international law. Article 4.3.a. of the European Convention on Human Rights explicitly excludes work due to conditional release [from prison] from the prohibition of forced labor. Article 8.3.c.1. of the International Agreement on Civil and Political Rights from December 19, 1966 defines the scope of the prohibition of forced labor in the same way...
3. The regulation in Section 56.b.2.3. of the CC also does not touch the sphere protected by Article 12.1. of the Basic Law. [The regulation] does not allow the imposition of work [requirements] which include the assignment of an occupation, the assignment of a workplace or a place of job training or in any other way prevent the affected person from the enjoyment of his rights from Article 12.1. of the Basic Law.
4. Section 56.b.2.3. of the CC is finally also in agreement with the basic right to the free development of one's personality (Article 2.1. of the Basic Law). The regulation is being justified by its purpose as a norm (Normzweck) and is restricted, in a manner appropriate for the constitutional principle of proportionality, by the limitations [which] are applicable for all probation orders (Section 56.b.1. first and second sentence).
Also the magnitude of the ordered obligation to work 300 hours for the public benefit is, from a constitutional perspective, not to be criticized; it still remains within the [abovely outlined] boundaries. The circumstance that in some member states of the Council of Europe the duty to work (Arbeitsstrafe) does not, as it seems, lie higher than 240 hours cannot alter, from a constitutional perspective, the result [of this holding], especially--as it seems--because no [constitutional] deliberations have led to the limitation of the duty to work [to 240 hours]. The courts obviously assumed that for the petitioner there remains sufficient time apart from his law studies to earn more than DM 450 a month and moreover comply with the required obligation to do work beneficial to the public. This cannot be criticized from a constitutional perspective.
[Signed by all eight Judges.]
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