CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 avril 1988

.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. 13020/87                       by Peter CONRAD                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 13 April 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                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 15 June 1987 by Peter Conrad against the Federal Republic of Germany and registered on 25 June 1987 under file No. 13020/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   -        the Commission's decision of 7 October 1987 to bring the         application to the notice of the respondent Government and         invite them to submit written observations on its admissibility         and merits;   -        the observations submitted by the respondent Government on         5 January 1988 and the observations in reply submitted by the         applicant on 17 February 1988;           Having deliberated;           Decides as follows:       THE FACTS             The facts apparently not in dispute between the parties may be summarised as follows:           The applicant, born in 1948, is a German national and resident in Düsseldorf.   He is a businessman by profession.   Before the Commission he is represented by Mr.   T. Vogler, a law professor at Giessen University.           In 1972 the Düsseldorf Public Prosecutor's Office (Staatsan- waltschaft) began a preliminary investigation (Ermittlungsverfahren) in respect of the applicant and other persons on charges of, inter alia, fraud.   He was suspected of having provoked car accidents in road traffic in 1969 and 1974 in order to defraud insurance companies. The applicant was taken into detention on remand for about nine months (31 May 1973 until 20 February 1974), and apparently he was then ordered not to leave the area of Düsseldorf for several years.   His home was searched in June 1973 and his prison cell in February 1974. His driving licence was provisionally withdrawn for about four and a half years (February 1974 until August 1978).           On 17 December 1979 the Düsseldorf Public Prosecutor's Office preferred the indictment (Anklageerhebung) against the applicant and five co-accused before the 13th Criminal Chamber (13.   Grosse Strafkammer) of the Düsseldorf Regional Court (Landgericht).   It consisted of 446 pages, listed more than 120 counts of offences and more than 100 witnesses to be called.           On 1 April 1980 the 13th Criminal Chamber was dissolved and the case transferred to the 14th Criminal Chamber of the same Court, which due to its burden of work could not hold a trial in 1980 nor in 1981.           On 25 January 1982 the 14th Criminal Chamber of the Regional Court, having examined the case file with regard to the question whether to admit the indictment (Zulassung der Anklage), transferred the case to the Juvenile Chamber (Jugendkammer) on the ground that some of the accused were alleged to have committed certain of the offences, with which they were charged, as juveniles.   The Juvenile Chamber separated the part of the proceedings for which it was competent under the relevant provisions of the Code of Criminal Procedure (Strafprozessordnung) and discontinued them under S. 154 of the Code.   S. 154 provides that proceedings may be provisionally discontinued where the penalty or the corrective or preventive measure to be expected in the case of a conviction is almost negligible in comparison with a penalty or corrective or preventive measure imposed on the defendant - or which he must expect - for another offence.   On 10 March 1982 the Juvenile Chamber committed the accusal for trial (Eröffnung des Hauptverfahrens) on the remaining charges before a criminal chamber.           On 26 May 1982 the Düsseldorf Public Prosecutor's Office, having regard to the order of 10 March 1982, preferred an amended indictment, which was received by the then competent 12th Criminal Chamber of the Düsseldorf Regional Court on 15 June 1982.           On 15 May 1984 the President of the Düsseldorf Regional Court informed the North-Rhine Westphalia Ministry of Justice of the state of the proceedings in respect of the applicant and the co-accused.   He referred in particular to an official statement of the Presiding Judge of the 12th Criminal Chamber according to which the Chamber was mainly dealing with drug offences and the applicant's case was the only "white collar crime" ("Wirtschaftsstrafsache").   The Chamber was heavily burdened with cases concerning drug offences, the accused persons in these cases being detained on remand.   It could, therefore, not be justified to open the trial in the applicant's case which was expected to last more than six months.   Since there was no hope that the trial could be opened in the near future, it appeared sensible to let the prosecution of the applicant's "juvenile sins" ("Jugend- sünden") become time-barred.   The President of the Court furthermore pointed out that the Chamber concerned could not be relieved of its increasing burden of work.   He finally stated that to his own consternation he was unable, for the time being, by using the Court's own resources to contribute to the advancement of the criminal proceedings in respect of the applicant ("Zu meiner eigenen Betrof- fenheit sehe ich mich ausserstande, derzeit aus eigenen Kräften des Landgerichts Düsseldorf einen Beitrag zur Förderung der Strafsache gegen Conrad zu leisten.")           On 14 January 1987 the 12th Criminal Chamber of the Düsseldorf Regional Court admitted the indictment of 26 May 1982 in respect of the applicant and a co-accused concerning in particular serious offences in road traffic (gefährlicher Eingriff in den Strassen- verkehr) and committed the accused for trial.   Furthermore, it decided to discontinue the proceedings under S. 206(a) of the Code of Criminal Procedure in respect of the remaining charges on the ground that the prosecution concerning those offences had become time-barred.           On 19 January 1987 the Regional Court notified the applicant that the trial would start on 23 June 1987 and continue on nine further dates until 14 July 1987.           By letter of 22 January 1987 to the applicant, his official defence counsel, referring to a conversation with the applicant of 21 January, confirmed that, under the circumstances of the present case, in particular the state of proceedings, a request for interim measures (einstweilige Anordnung) to the Federal Constitutional Court (Bundes- verfassungsgericht) would be inadmissible.           On 25 January 1987 the applicant lodged an appeal (Beschwerde) against the decision of 14 January 1987 with the Düsseldorf Court of Appeal (Oberlandesgericht) and requested that the proceedings be discontinued.   He referred in particular to the length of the proceedings and submitted that having regard to the period of time which had elapsed since the offences were allegedly committed he could no longer properly secure his defence.           On 13 May 1987 the Düsseldorf Court of Appeal declared the appeal inadmissible on the ground that the Regional Court's decision of 14 January admitting the indictment was not subject to appeal.           On 23 June 1987 the Düsseldorf Regional Court interrupted the trial and adjourned it sine die in view of the applicant's request to discontinue the proceedings, the reasons of which he would submit in writing.           On 18 August 1987 the Federal Constitutional Court rejected the applicant's constitutional complaint (Verfassungsbeschwerde) against the decision of 23 June 1987.   It found that the decision to adjourn the proceedings did not prejudice the applicant as the Regional Court thereby only intended to enable him to submit his further arguments.           On 26 August 1987 the Düsseldorf Regional Court discontinued the proceedings under S. 206a of the Code of Criminal Procedure on the ground of the excessive length of the proceedings. (Under this Section the Court may discontinue proceedings once the trial has started, provided there is a procedural bar (Verfahrenshindernis).)   It also decided that the cost of the proceedings and the applicant's necessary costs and expenses be borne by the Treasury.           The Court, referring to the right to a hearing within a reasonable time under Article 6 para. 1 of the Convention and the Convention organs' case-law in this respect and to the rule of law (Rechtsstaatsprinzip) under the German Basic Law (Grundgesetz), found that, in very exceptional cases, an excessive length of proceedings could constitute a procedural bar.   The Court noted that at no stage the applicant had impeded or delayed in any way the course of the proceedings.   It considered that, in the present case, the proceedings had, without the applicant's fault, lasted extremely long. Furthermore it had regard to his detention on remand and the provisional withdrawal of his driving licence.   The Court concluded that there was no longer any substantial interest in further prosecution and that it could not be accepted that the proceedings should be continued.   In its decision, the Court made specific references to the Convention, stating that a procedure lasting for more than ten years was excessive according to the case-law of the European Court of Human Rights and that a right to discontinuance of proceedings could be deduced from Article 6 para. 1 of the Convention.           On 10 September 1987 the Düsseldorf Public Prosecutor's Office lodged an appeal (Beschwerde) against that decision and submitted the reasons for the appeal on 27 October 1987.   The Public Prosecutor's Office considered in particular that, though the right to a hearing within a reasonable time under Article 6 para. 1 of the Convention and the rule of law as guaranteed by the Basic Law appeared to be violated in the present case, the Court should not have decided to discontinue the proceedings.   Rather the Court should have taken the length of the proceedings into account when deciding upon the sentence.           On 4 December 1987 the Public Prosecutor's Office informed the Düsseldorf Regional Court that it withdrew the appeal.           Also on 4 December 1987 the Düsseldorf Regional Court decided, in accordance with S. 6 para. 1 (2) of the Act on Compensation for Prosecution Measures (Gesetz über Entschädigung für Strafverfol- gungsmassnahmen), not to grant the applicant compensation for his detention on remand, the search of his home and his prison cell and the provisional withdrawal of his driving licence.     COMPLAINTS   1.       The applicant complains under Article 6 para. 1 of the Convention that his committal to trial and the holding of the trial violated his right to a fair hearing within a reasonable time.           He considers that the overall time of more than 14 years spent until now cannot be justified by the complexity of the case.   He himself had in no way contributed to the length of the proceedings. The length stemmed exclusively from the way in which the German authorities handled the case, in particular from the fact that they were inactive for several years due to their burden of work.   2.       The applicant furthermore complains under Article 6 paras. 1 and 3 (b) and (c) of the Convention that his rights of defence and his right to a fair hearing were violated.   He considers that, after the expiration of a period of 14 to 18 years after the offences were allegedly committed, it is impossible to remember details.   3.       As regards the condition as to the exhaustion of domestic remedies under Article 26 of the Convention the applicant submits that under German law committals for trial, and orders fixing dates for trial, are not subject to appeals.   He refers, in this respect, to the decision of the Düsseldorf Court of Appeal of 13 May 1987. Furthermore he considers that a constitutional complaint (Verfassungs- beschwerde) would not have been an effective remedy.   He submits that according to the constant case-law of the Federal Constitutional Court a constitutional complaint can in principle only be lodged after a final decision was taken in the ordinary proceedings, whereas interlocutory decrees (Zwischenentscheidungen) and court orders (gerichtliche Verfügungen) such as committals for trial, a summons or the fixing of hearings cannot be independently complained of. Referring to the decisions of the Commission on the admissibility of Applications No. 8499/79 (Dec. 7.10.80, D.R. 21 p. 176), No. 8961/80 (Dec. 8.12.81, D.R. 26 p. 200) and No. 10474/83 (Dec. 6.5.86) the applicant submits that these cases concerned civil proceedings in which at least judgments at first instance had been given.   Those applicants had to ensure the implementation of their private rights in civil proceedings.   In the present case, the problem was rather the continuation of the proceedings after such a long time.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 15 June 1987 and registered on 25 June 1987.           On 7 October 1987 the Commission decided to communicate the application to the respondent Government for observations on the admissibility and merits of the application.           The Government's observations dated 5 January 1988 were received on 8 January 1988.   The applicant submitted his reply on 17 February 1988.     SUBMISSIONS OF THE PARTIES   A.       The Government   I.       Issue of being a "victim" (Article 25 para. 1 of         the Convention)           The Government, referring to the Convention organs' case-law, maintain that the applicant can no longer claim to be a victim of a violation of his rights under the Convention.           They consider that the Düsseldorf Regional Court, in its decision of 26 August 1987, expressly acknowledged that the criminal proceedings against the applicant had lasted unreasonably long and thus violated Article 6 para. 1 of the Convention.           Furthermore the Court discontinued the proceedings although prosecution of the offences in question was not yet time-barred and it decided that the costs of the proceedings and the applicant's necessary costs and expenses be borne by the Treasury.   The Government submit that the Regional Court thus also granted full redress for the violation of the applicant's right to a hearing within a reasonable time under Article 6 para. 1 of the Convention.   II.      As to the exhaustion of domestic remedies (Article 26         of the Convention)           The Government submit that the applicant did not request the competent Regional Court to fix a trial within a reasonable time.   They also maintain that at the trial the applicant could have lodged the request to discontinue the proceedings because of their unreasonable length - as he in fact did after having lodged his application with the Commission - and, if necessary, he could then have lodged a constitutional complaint with the Federal Constitutional Court in this respect.   III.     Conclusion           The Government request the Commission to strike the application off the list of cases (Article 44 para. 1 of the Rules of Procedure) or, in case the applicant should maintain his application, to declare it inadmissible under Article 27 para. 2 of the Convention on the ground that he can no longer claim to be a victim, or, alternatively, to declare it inadmissible for non-exhaustion of domestic remedies within the meaning of Article 26 in conjunction with Article 27 para. 3 of the Convention.     B.       The applicant   I.       The applicant claims that he is still victim of a violation of his rights under the Convention.           He alleges that the Düsseldorf Public Prosecutor's Office, in the reasoning as to its appeal against the Regional Court's decision of 26 August 1987 to discontinue the proceedings, denied a violation of his rights under the Convention.   When the Office then withdrew the appeal it did not expressly acknowledge such a violation.           The applicant submits that he was not informed about the withdrawal of that appeal.   Having examined the case file he considers that, after communication of the present application to the German Government, the Government advised the Public Prosecutor's Office to withdraw its appeal in order to avoid the finding of a violation of the Convention in the present case and the payment of adequate compensation.   The applicant, in this respect, submits that he was detained on remand, his premises and his prison cell were searched and his driving licence was provisionally withdrawn.   He considers that he is entitled to compensation for these material and immaterial damages and, therefore, need not be satisfied with the mere decision to discontinue the proceedings.   The refusal of such compensation violates Article 6 para. 2 of the Convention on the ground that the decision to discontinue criminal proceedings cannot be considered as an advantage for an innocent person.   II.      As regards the exhaustion of domestic remedies within the meaning of Article 26 of the Convention the applicant submits that under the Convention he was not obliged to accelerate the criminal proceedings against him.   Furthermore he repeats his submission that he could not have lodged a constitutional complaint in the present case and, in this respect, refers to the Federal Constitutional Court's decision of 18 August 1987.     THE LAW           The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention about the length of the criminal proceedings against him. He has declared that he maintains this complaint even after the proceedings which were instituted in 1973 have been discontinued by the Düsseldorf Regional Court on 26 August 1987 because of their excessive length.           The Commission recalls that an applicant can no longer claim to be a victim within the meaning of Article 25 para. 1 (Art. 25-1) of the Convention of a failure to observe the "reasonable time" requirement in Article 6 para. 1 (Art. 6-1) of the Convention if the relevant courts expressly acknowledged the existence of a breach of that provision and if redress has been given (Eur.   Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, p. 31 para. 67, p. 32 paras. 69-70, p. 39 para. 94; Eur.   Comm.   H.R., No. 8858/80, Dec. 6.7.83, D.R. 33 p. 5).           In the present case, the Commission notes that the Düsseldorf Regional Court, in its decision of 26 August 1987, expressly recognised a violation of Article 6 para. 1 (Art. 6-1) of the Convention due to the unreasonable length of the criminal proceedings against the applicant.   In order to give redress in this respect the Court discontinued the proceedings and ordered that the costs of the proceedings and the applicant's necessary costs and expenses be borne by the Treasury.   The Public Prosecutor's Office, in the reasoning concerning its appeal against that decision, also assumed that there was a breach of Article 6 para. 1 (Art. 6-1) of the Convention but it considered the Court's conclusion that this breach constituted a procedural bar to be wrong.   The appeal was withdrawn in January 1988.           The Commission furthermore notes that in the domestic proceedings the applicant had requested the Düsseldorf Court of Appeal in January 1987 and the Düsseldorf Regional Court at the trial on 23 June 1987 to discontinue the criminal proceedings because of their unreasonable length.           The Commission finds that in these particular circumstances the applicant was given adequate redress for his complaints under Article 6 para. 1 (Art. 6-1) of the Convention concerning the length of the criminal proceedings against him by the Düsseldorf Regional Court's decision that the proceedings in question be discontinued and that the costs of the proceedings and the applicant's necessary costs and expenses be borne by the Treasury.           It follows that the applicant is no longer a victim of the alleged violation of Article 6 para. 1 (Art. 6-1) of the Convention. His complaint must therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) 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)