CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mai 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY OF   Application No. 11947/86 by Hans Josef ANSCHÜTZ against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 4 May 1987 , the following members being present:                         MM. C.A. NØRGAARD, President                         E. BUSUTTIL                         G. JÖRUNDSSON                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                    Mrs   G.H. THUNE                    Sir   Basil HALL                    Mr.   F. MARTINEZ                      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 24 September 1985 by Hans Josef ANSCHÜTZ against the Federal Republic of Germany and registered on 17 January 1986 under file No. 11947/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as they have been submitted by the applicant, may be summarised as follows.           The applicant, born in 1929, is a German national and resident in Berlin.   He is a businessman by profession.   Before the Commission, he is represented by Prof.   T. Vogler, a law professor in Giessen, and Dr.   I. Fahrenhorst, a research assistant in Giessen.           In 1977 the Berlin Public Prosecutor's Office (Staatsanwalt- schaft) began a preliminary investigation (Ermittlungsverfahren) in respect of the applicant and two co-accused on charges of fraud in business transactions.   The first indictment (Anklageschrift) dated 7 May 1980 contained charges of fraud under a particular Berlin Subsidy Scheme (Berlinförderungsgesetz) and the Investment Assistance Act (Investitionszulagengesetz).           Following a leading decision of the Federal Court of Justice (Bundesgerichtshof) dated 20 June 1980 as to the lawfulness of certain transactions under the Berlin Subsidy Scheme, the Public Prosecutor's Office conducted further investigations and drew up a first supplement to the indictment on 2 December 1980.   In a second supplement of 2 June 1981 the Prosecutor's Office also charged the applicant with tax evasion.           The Berlin Regional Court (Landgericht) now expressed doubts as to the precision of the charges contained in the different documents and on 1 July 1981 the Prosecutor's Office withdrew the indictment of 7 May 1980 as well as the two supplements.   It preferred a new indictment containing charges of fraud, tax evasion, breach of accounting rules and fraudulent conversion on 15 July 1981.           On 26 January 1983 the Berlin Regional Court committed the applicant for trial except on one of the charges of fraud which had meanwhile become statute-barred.   It furthermore joined the proceedings with criminal proceedings against the applicant concerning a charge of fraudulent conversion which were pending before that Court following a separate indictment of 25 May 1981.           On 17 May 1983 the Court appointed Mr.   R as official defence counsel (Pflichtverteidiger) for the applicant.           The trial opened on 12 July 1983.   At the opening of the trial, Mr.   H was appointed second official defence counsel.   According to the applicant H had been disbarred by a decision of the Bavarian Ministry of Justice (Staatsministerium der Justiz) dated 14 March 1983.           On 27 September 1983 the Regional Court dismissed the applicant's challenge of the presiding judge M and the judge V. The Court found that even assuming that certain evidence in his favour had not been taken, there was no appearance of partiality of the judges concerned, as the trial was not yet closed.           On 7 October 1983 the Regional Court convicted the applicant on charges of tax evasion, fraudulent conversion and breach of accounting rules and sentenced him to two years and three months' imprisonment.   The applicant was acquitted of the charges of fraud. The Court furthermore issued a warrant of arrest the execution of which was conditionally suspended on medical grounds.           In November 1983 the applicant's first official defence counsel R lodged an appeal on points of law (Revision) to the Federal Court of Justice (Bundesgerichtshof) which was limited under S. 344 of the German Code of Criminal Procedure (Strafprozessordnung) to the general allegation that provisions of substantive law had been violated (allgemeine Sachrüge).   The time-limit for stating grounds of appeal (Revisionsgründe) provided for by S. 345 of the Code of Criminal Procedure expired on 19 February 1984.   Under S. 344 of the Code of Criminal Procedure the appellant must indicate the extent to which he appeals against a judgment and he must state the grounds of appeal.   These grounds must in particular show the extent to which the appeal on points of law concerns an alleged violation of provisions of procedural law and/or of substantive law.   According to S. 341 of the Code of Criminal Procedure the appeal on points of law must in general be lodged within the period of one week from the date on which the judgment was pronounced.   According to S. 345 of the Code of Criminal Procedure the submissions required under S. 344 have to be filed within a further period of one month, either as a memorial signed by a lawyer or deposited at the court registry.           On 6 April 1984, the presiding judge at the Regional Court, upon the applicant's request dated 24 March 1984, discharged his official defence counsels.   However, his request to have another official defence counsel appointed was dismissed on 16 April 1984 on the grounds that the appeal on points of law had already been correctly lodged and that he himself could submit further arguments.           On 1 June 1984, following a statement of the Federal Public Prosecutor (Generalbundesanwalt) dated 21 May 1984 that according to the German Code of Criminal Procedure a defence counsel was necessary pending appeal proceedings, Mr.   M was appointed new official defence counsel.           Moreover, on 1 June 1984 the applicant was taken into detention on remand on the basis of the warrant of arrest dated 7 October 1983.   The suspension of the execution of this warrant had been revoked on 22 May 1984 on the ground that the applicant had failed to comply with the conditions fixed by the Court.   The applicant was released on 17 September 1984.           On 6 July 1984 the defence counsel M submitted supplementary pleadings to the Federal Court of Justice as regards the alleged violations of substantive law.           On 26 July 1984 the Federal Public Prosecutor's Office requested the Court to dismiss the appeal on points of law.   This request was transmitted to the defence counsel M on 27 July 1984 and he was informed that the Court would normally decide upon the appeal in its first session upon the expiration of the period of two weeks for his counter-pleadings.           On 7 August 1984 the Federal Court of Justice quashed the judgment of 7 October 1983 insofar as it concerned the applicant's conviction of fraudulent conversion in two cases and the sentences imposed.   The remainder of the appeal was dismissed as being manifestly ill-founded.   The case was referred back to the Regional Court.           On 6 September 1984 the Berlin Regional Court discontinued the criminal proceedings against the applicant with regard to the charge of fraudulent conversion in two cases.   This decision was taken for reasons of procedural economy according to S. 154 of the German Code of Criminal Procedure.           On 17 September 1984 the Regional Court, after a further hearing as to the applicant's personal situation, imposed a global sentence (Gesamtstrafe) of one year and two months' imprisonment for the remaining offences of tax evasion, fraudulent conversion and breach of accounting rules.   The execution of the sentence was suspended on probation.           In the grounds of this judgment the Court first noted that the conviction had become final and that its sole task was to fix new sentences.   In fixing these sentences the Court considered as mitigating circumstances in particular that the applicant had not been previously convicted and had not committed further criminal offences since the period of the criminal acts at issue.   Moreover, the Court found that the applicant extraordinarily suffered from the length of the proceedings for which he could not be held responsible ("Der Angeklagte ist durch die von ihm nicht zu vertretende Dauer des seit 1977 währenden Verfahrens ausserordentlich belastet.").   Aggravating factors were the amount of damages caused by the tax evasion (81,895 DM) and the fraudulent conversion (43,800 DM), although the applicant had not enriched himself and had paid the taxes in question later. The separate sentences (Einzelstrafen) were nine months' imprisonment for tax evasion, six months' imprisonment for fraudulent conversion and a fine of 9,600 DM (120 Tagessätze zu 80 DM) for breach of accounting rules.   When fixing the global sentence the Court had again regard to the mitigating as well as the aggravating circumstances and, moreover, to the period of the applicant's detention on remand. Furthermore it found that the mitigating circumstances, in particular the extraordinary length of the proceedings for which he could not be held responsible ("insbesondere die von ihm nicht zu vertretende ausserordentliche lange Verfahrensdauer"), also constituted special circumstances in the criminal acts and in his personality which justified putting him on probation.           The Court also dismissed the applicant's compensation claims as regards the various searches of his home and seizures of goods.           On 24 September 1984 the applicant lodged a second appeal on points of law; he submitted the grounds of appeal on 20 November 1984. He referred in particular to alleged procedural errors during the court proceedings leading to the first judgment of 7 October 1983.   He submitted inter alia that his first official defence counsel R got a copy of the indictment only on 12 July 1983 at the opening of the trial and that his second counsel M was already disbarred.   Furthermore he pointed out that certain requests to take evidence on his behalf were incorrectly dismissed.   With regard to the first appeal proceedings he complained that his request to have a new official defence counsel appointed was incorrectly dismissed by the Regional Court.   Consequently the appeal procedings could not be properly prepared on his behalf.   As regards the second proceedings before the Regional Court the applicant alleged an incorrect application of the relevant provisions of the substantive penal law. The applicant also considered that the procedural mistakes relating to the initial proceedings in 1983 and the excessive length of the criminal proceedings had not been duly taken into account when his global sentence was fixed.           On 27 February 1985 the Federal Public Prosecutor requested the Federal Court of Justice to dismiss the applicant's appeal on points of law.   He submitted in particular that the applicant could no longer complain of alleged procedural errors during the first proceedings before the Regional Court.   The conviction had become final. Furthermore, in fixing the sentence the Regional Court had regard to all relevant mitigating circumstances.           On 26 March 1985 the Federal Court of Justice dismissed the applicant's second appeal on points of law.     COMPLAINTS   1.       The applicant now complains under Article 6 para. 1 of the Convention of the length of the criminal proceedings against him.   He submits that the Regional Court, in its judgment of 17 September 1984, did not indicate the extent to which the sentence was reduced in view of the length of the proceedings.   2.       The applicant furthermore complains under Article 6 paras. 1 and 3 of the Convention that his criminal proceedings before the Berlin Regional Court in 1983 were not properly conducted and led to incorrect results.   He submits in particular that he had no hearing by an impartial court in that the presiding judge had already participated in other criminal proceedings against him.   He could not properly defend himself as the indictment was written in a complicated style and his first official defence counsel R got a copy thereof only on the first day of the trial, whereas his second counsel H got no copy at all.   Moreover the Regional Court did not ensure a proper defence in that the presiding judge chose a defence counsel who was disbarred.   Finally the Court did not hear certain witnesses on his behalf.   3.       The applicant also complains under Article 6 paras. 1 and 3 of the Convention of the alleged unfairness of the first appeal proceedings before the Federal Court of Justice.   He submits that he got a new official defence counsel only on 1 June 1984 and that they could not prepare his defence properly and supplement the appeal as regards procedural complaints.   4.       The applicant also invokes Article 6 paras. 1 and 3 of the Convention as regards the second proceedings before the Regional Court in 1984.   He considers that the proceedings were unfair in that his counsel was informed about the date of the trial only one day before it took place and he himself on the same day.   5.       The applicant furthermore complains under Article 6 para. 2 of the Convention that parts of the proceedings were discontinued for reasons of procedural economy under S. 154 of the Code of Criminal Procedure.   6.       The applicant also complains under Article 5 para. 1 (b) of the Convention that the decision to execute the warrant of arrest was unlawful.   7.       The applicant finally complains under Article 3 of the Convention that he was brought handcuffed to his mother's funeral.   THE LAW   1.       The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention of the length of the criminal proceedings.   He submits in particular that in fixing the sentence the German courts did not duly take the extraordinary length into account.           Article 6 para. 1 (Art. 6-1) of the Convention provides that in the determination of any criminal charge against him, everyone is entitled to a hearing within a reasonable time.   It is true that the criminal proceedings against the applicant lasted for a very long period, namely over eight years.   However, the Commission is not required to decide whether or not the applicant's right to a hearing within a reasonable time was violated as he can no longer claim to be a victim of this alleged violation.           The Commission recalls that an applicant can no longer claim to be a victim - within the meaning of Article 25 (Art. 25) of the Convention - of his right under Article 6 para. 1 (Art. 6-1) of the Convention to a hearing within a reasonable time when the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (cf.   Eur. Comm.   H.R., No. 8182/78, Dec. 16.10.80, D.R. 25 p. 142; Eur.   Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, paras. 66 et seq.; Eur. Comm.   H.R., No. 8858/80, Dec. 6.7.83, D.R. 33 p. 5).           In the present case, the Berlin Regional Court acknowledged in its judgment of 17 September 1984 the extraordinary length of the proceedings and found that the applicant could not be held responsible for this length.   Moreover, the Court, in fixing the sentence, took into account that the applicant had suffered from these lengthy proceedings.   Furthermore, it suspended the execution of the sentence on probation, in particular on the ground of the extraordinary length of the proceedings.           The Commission notes that the Court did not expressly refer to Article 6 para. 1 (Art. 6-1) of the Convention.   It nevertheless considers the above statements in the Regional Court's judgment of 17 September 1984 as being in substance an acknowledgement of a breach of this provision.   The Court pointed out that the applicant was not responsible for the length of the proceedings and thus implied that delays were caused by the judicial authorities.           Furthermore, the Commission notes that both the mitigation of the sentence and the suspension of its execution on probation were granted in particular on account of the extraordinary length of the proceedings.   It finds that these decisions constitute adequate redress.           In these particular circumstances, the Commission considers that the applicant can no longer claim to be a victim of the alleged violation of his right under Article 6 para. 1 (Art. 6-1) of the Convention to a hearing within a reasonable time.   It follows that the complaint as to the length of the criminal proceedings must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant further complains under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention that in the criminal proceedings before the Berlin Regional Court in 1983 he had no fair hearing by an impartial court.           It is true that Article 6 para. 1 (Art. 6-1) of the Convention secures to everyone charged with a criminal offence the right to a fair hearing by an impartial court and that Article 6 para. 3 (Art. 6-3) of the Convention guarantees further minimum rights of defence.           However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           In the present case the applicant's first appeal on points of law was limited to the general complaint of a violation of substantive penal law.   He failed to lodge procedural complaints under S. 344 of the German Code of Criminal Procedure and has to this extent not exhausted the remedies available to him under German law.   Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal in this respect.           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and this complaint must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.       The applicant also complains under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention of the alleged unfairness of the first appeal proceedings before the Federal Court of Justice.   He submits in particular that during the period from 6 April until 1 June 1981 he was without a defence counsel.   Moreover, he alleges that his defence counsel appointed on 1 June 1984 had no time to properly prepare his defence and to supplement his arguments as to procedural complaints.           The Commission recalls that Article 6 para. 1 (Art. 6-1) is in principle applicable to proceedings before courts of appeal or of cassation. However, the way in which it applies must clearly depend on the special features of such proceedings (Eur.   Court H.R., Axen judgment of 8 December 1983, Series A no. 72, p. 12).           In the present case the applicant failed to show that the belated appointment of a new official defence counsel rendered the appeal proceedings as a whole unfair.           The Commission notes first that the applicant's first official defence counsel in the appeal on points of law only alleged a violation of substantive law.   The applicant himself did not avail himself of the possibility to deposit procedural complaints at the court registry.   He also failed to show that the official defence counsel, if immediately appointed upon his request in March 1984, would still have been able to introduce procedural complaints although the time-limit under S. 345 in conjunction with S. 341 of the Code of Criminal Procedure had already expired on 19 February 1984.           Moreover, as regards the alleged lack of time to prepare the appeal proceedings concerning the alleged violations of substantive law, the Commission notes that the defence counsel appointed on 1 June 1984 submitted supplementary pleadings on 6 July 1984. Furthermore, the Federal Court of Justice, when transmitting the memorial of the Federal Public Prosecutor's Office dated 26 July 1984, informed the defence counsel of the time-limit for further arguments and the regular date for a decision on the appeal on points of law. Neither the defence counsel nor the applicant submitted further arguments or requested an extension of the time-limit.           In these circumstances the Commission finds no appearance of a violation of the applicant's right, under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention, to a fair hearing and to adequate time for the preparation of his defence in the proceedings before the Federal Court of Justice.   The applicant's complaints in this respect are therefore manifestly ill-founded and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.   4.       The applicant also invokes the right to a fair hearing and to a proper defence under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) as regards the second proceedings before the Berlin Regional Court in 1984.   He submits in particular that he and his counsel were informed too late about the date of the trial.           However, it does not appear that the defence applied for an adjournment on this ground under S. 217 and 218 of the Code of Criminal Procedure.   Moreover, in his second appeal on points of law, as substantiated on 20 November 1984, the applicant only alleged an incorrect application of substantive penal law.   In particular he did not complain of the allegedly late information of the date of the trial on 17 September 1984.   It follows that, in this respect, the applicant has failed to show that he has exhausted the domestic remedies available to him under German law in accordance with Article 26 (Art. 26) of the Convention.           Moreover, even if the applicant could be considered to have exhausted domestic remedies with regard to his complaints concerning the second proceedings before the Regional Court, these complaints are, in any event, manifestly ill-founded for the following reasons. The proceedings concerned were limited to fixing new sentences, the conviction having become final.   At the hearing on 17 September 1984 the Court considered in particular the applicant's personal situation as one of the circumstances to be taken into account in fixing the sentence.   Furthermore, the applicant's official defence counsel M had, at that time, already been dealing with the applicant's case for about three and a half months and become acquainted with the case as a whole and the details of the different charges during the preceding appeal proceedings before the Federal Court of Justice.           The Commission finds that, in these circumstances, it has not been shown that the allegedly belated notice of the hearing on 17 September 1984 deprived the applicant of adequate time and facilities for the preparation of his defence within the meaning of Article 6 para. 3 (d) (Art. 6-3-d) and thus rendered the second proceedings before the Regional Court as a whole unfair within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.           It follows that the applicant's above complaint must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.       The applicant further complains under Article 6 para. 2 (Art. 6-2) of the Convention that the discontinuation of part of the criminal proceedings against him amounted to a violation of the principle of presumption of innocence.           The Commission recalls that the presumption of innocence will be violated if, without the accused having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty.   This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty (Eur.   Court H.R., Minelli judgment of 25 March 1982, Series A no. 62, para. 37).   Problems may therefore arise e.g. in cases where decisions on costs after suspension or discontinuation or criminal proceedings imply an appraisal of the guilt of the accused (No. 9688/82, Dec. 16.12.83, D.R. 35 p. 98; Englert v.   Federal Republic of Germany, Comm.   Report 9.10.85, para. 42; Nölkenbockhoff v.   Federal Republic of Germany, Comm.   Report 9.10.85, para. 43).           However, in the present case, the Commission does not find that the Regional Court's decision to discontinue part of the criminal proceedings against the applicant for reasons of procedural economy implied an appraisal of his guilt.   The decision as such does not suggest that the Court regarded the applicant as guilty of the offences concerned.           It follows that this aspect of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   6.       The applicant also complains under Article 5 para. 1 (Art. 5-1) of the Convention that his detention on remand in 1984 was unlawful.           However, the Commission is again not required to decide whether or not the facts alleged disclose any appearance of a violation of this provision as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           In respect of the present complaint the applicant did not show that he instituted proceedings before the Federal Court of Justice concerning the allegedly unlawful execution of the warrant of arrest pursuant to S. 310 of the German Code of Criminal Procedure.   He can therefore not be considered to have exhausted the remedies available to him under German law.   Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and his application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   7.       The applicant finally complains under Article 3 (Art. 3) of the Convention that during the period of his detention on remand in 1984 he had to attend his mother's funeral being handcuffed and that he was thus subjected to inhuman and degrading treatment.           However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           In the present case the applicant has not shown that he appealed against this measure according to S. 75 of the Code of the Execution of Detention on Remand (Untersuchungshaftvollzugsordnung) and has, therefore, not exhausted the remedies available to him under German law.   Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and his application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission                 President of the Commission              (H.C. KRÜGER)                               (C.A. NØRGAARD)