CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1990

.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. 14733/89                       by Arno KROPF                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 2 July 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                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 8 December 1988 by Arno Kropf against the Federal Republic of Germany and registered on 7 March 1989 under file No. 14733/89;           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 applicant is a German citizen, born in 1926 and living in Berlin.   He is represented by Mr. H. Mahler, a lawyer in Berlin.           The facts submitted are as follows.           In June 1969 the office of the Public Prosecutor in Düsseldorf instituted investigation proceedings against the applicant and his business partner, Mr.   M., who were both suspected of fraudulent business practices, namely of having obtained loans on the basis of mortgages which had been overestimated.   A search and seizure order was issued against the applicant by the District Court (Amtsgericht) Tiergarten in Berlin on 23 June 1969.   Evidence was obtained from several banks and credit institutes.   In 1974 an indictment was filed accusing the applicant and his partner of having committed fraud to the detriment of thirteen banks.           On 16 November 1976 the applicant and M. were acquitted by the Bielefeld Regional Court (Landgericht).   The expenses incurred by the defendants and the cost of the proceedings were imposed on the treasury. The Court also ordered that the acquitted be paid compensation in respect of several prosecution measures, in particular searches effected at several banks and credit institutes.           The Public Prosecutor lodged an appeal on points of law (Revision) which it withdrew, however, on 29 July 1977.           It appears that, prior to the indictment, the Public Prosecutor provisionally discontinued the proceedings in part and only decided in May 1979 to discontinue this part of the proceedings definitely.   The order granting the applicant compensation for prosecution measures was set aside on 16 November 1979 on the ground that he was responsible for the necessity of the investigative measures.           On 16 November 1979 the applicant brought an action against the Land Northrhine-Westphalia requesting the Court to state that the defendant had to compensate all damages caused to him, his wife and his partner in consequence of miscarriage in office committed in connection with the criminal proceedings against him, in particular in consequence of a press conference given by the Public Prosecutor in December 1969 denouncing him as a fraudulent person.   Allegedly his business partners, such as banks and credit institutes had thereupon cancelled all credit agreements with him.   This had led to the collapse of his business activities, had obliged him to liquidate his real estate holdings, and had eventually caused the loss of all his assets.           The applicant's request to be granted legal aid was rejected by the Regional Court on 14 November 1981.   The applicant appealed and on 28 December 1983 the Court of Appeal (Oberlandesgericht) of Hamm ordered the Regional Court to grant legal aid for part of the intended action.   On 16 March 1984 the applicant specified his claims on the basis of an expert opinion which he had in the meantime received.   He claimed some 208,000,000 DM and a finding that further damages had to be paid by the defendant.   On 29 March 1985 the Regional Court refused to grant legal aid for this action.   An appeal against this decision was rejected on 3 February 1986.           The applicant then provisionally limited his claim to 114,000,000 DM.           This action was dismissed by the Dortmund Regional Court on 26 March 1987 on the grounds that the claims were time-barred. The Court held that the only acts of public officials which could possibly be considered as having violated the applicant's rights were the declarations made by the Public Prosecutor at the press conference in December 1969.   However, the applicant had had knowledge of the effects of this press conference at least since the end of 1972.   Consequently he had not raised his alleged claim within the statutory period of three years as he lodged his action only in 1979.           The time-limit for lodging the action had not been suspended until the applicant's acquittal because the relevant facts were known since 1972 and there was nothing to show that from the applicant's point of view it was unreasonable to bring a civil action while the criminal proceedings against him were still pending.   Furthermore, the applicant had not shown that he had been threatened with arrest or other prosecution measures to prevent him from lodging the action for damages while the criminal proceedings were still pending.           The applicant's appeal (Berufung) against the judgment of 26 March 1987 was rejected by the Hamm Court of Appeal on 10 February 1988.   This Court referred to its findings in a parallel case brought by the applicant's wife who had likewise claimed damages on the same grounds as the applicant.   This action was dismissed by the Regional Court and, on appeal, by the Hamm Court of Appeal on 28 November 1986.   An appeal on points of law (Revision) was rejected by the Federal Court (Bundesgerichtshof) on 29 October 1987.   A constitutional complaint was to no avail.           In the judgment referred to of 28 November 1986 it was, inter alia, stated that no miscarriage in office had been committed by public officials in the course of the criminal proceedings against the applicant.   According to the principle of legality (Legalitätsprinzip) the Public Prosecutor had an obligation to investigate and bring an indictment whenever the circumstances gave reason to suspect a person of having committed a criminal offence.   Already the fact that the applicant and his partner had made large and illegal donations of money to several bank employees had given reason to suspect them of having bribed those employees for the purpose of receiving in return unjustified advantages.   The appellate court added that in any event the action was, as held by the lower court, time-barred and that there had been no circumstances justifying a suspension of the time-limit. In particular, there was nothing to show that pressure by the Public Prosecutor had prevented the applicant from lodging his claim for damages.   The outcome of the criminal proceedings did not influence this claim, which only depended on the question whether or not the statements made by the Public Prosecutor at a press conference in December 1969 and other investigation measures had to be considered as constituting a miscarriage in office.   As the applicant had known the facts on which he based his claim for damages at least since 1972, he should have lodged his action before the end of 1975 in order to comply with the three year time-limit provided for in Section 852 (1) of the Civil Code (BGB).           The applicant's request for legal aid in order to be able to lodge an appeal on points of law was rejected by the Federal Court on 26 May 1988.           A constitutional appeal against the latter decision was rejected by a group of three judges of the Federal Constitutional Court on 8 August 1988 as offering no prospects of success.           A constitutional appeal against the civil courts' decisions refusing legal aid was likewise rejected by a group of three judges on 8 August 1988 partly as being inadmissible and partly as offering no prospects of success.   It is stated, inter alia, in the decision that the considerations of the civil courts relating to the issue of whether the applicant's claim was time-barred were unobjectionable insofar as constitutional law was concerned.   COMPLAINTS           The applicant complains of the length of the criminal proceedings against him, alleging that for seven years he lived under the threat of being arrested and detained on remand.   In this respect he invokes Articles 5 and 6 of the Convention.   He further alleges a violation of the presumption of innocence (Article 6 para. 2) because the activities of the investigating police officers and prosecutors led to press publications branding him as a large-scale crook.           Furthermore, he submits that he was denied a fair hearing and a decision within a reasonable time in the civil proceedings where his action for damages was, in his opinion, wrongly dismissed.   THE LAW   1.       Insofar as the applicant alleges a violation of the presumption of innocence, the Commission notes that he was acquitted and is therefore no longer a victim of the alleged procedural irregularity.   This part of the application is consequently manifestly ill-founded and must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.           In any event the final decision in the main criminal proceedings was given on 16 November 1976 when the Regional Court acquitted the applicant of the charges retained in the indictment.   It is true that the Public Prosecutor appealed, but he withdrew his appeal on 29 July 1977.   The Commission also notes that criminal proceedings provisionally discontinued before the indictment were not definitely discontinued until May 1979.   The present application was only introduced on 8 December 1988, that is more than six months later.   The present complaint would therefore also have to be rejected in accordance with Articles 27 para. 3 (Art. 27-3) for non-observance of the six months' rule laid down in Article 26 (Art. 26) of the Convention.   2.       The same reasoning as stated above applies insofar as the applicant complains of the length of the criminal proceedings.           In addition the Commission refers to the jurisprudence of the Federal Constitutional Court according to which the excessive length of proceedings can be invoked in a constitutional complaint.   The applicant failed to lodge such a complaint.   He only referred to the length of the criminal proceedings in connection with his constitutional complaints against the decisions given in the civil proceedings relating to his action for damages.   However, the action for damages was based on the allegation that the prosecution authorities caused the applicant's ruin in that their actions led his business partners, such as banks and credit institutes, to believe that he was a large-scale crook.   The length of the criminal proceedings was referred to in the civil proceedings only in support of the argument that it would be unreasonable to consider the claim for damages time-barred as from 1975 onwards while the applicant was not acquitted before 16 November 1976 and parts of the criminal proceedings, provisionally discontinued before the indictment, were not definitely discontinued until May 1979.   In these circumstances the civil action, in which the applicant was required to show that public officials had committed miscarriage in office, cannot be considered a remedy with regard to the present complaint about the length of the criminal proceedings.           Moreover, even assuming that the civil action for damages, which was lodged on 16 November 1979 and alleged a violation of the presumption of innocence, constituted an effective remedy within the meaning of Article 26 (Art. 26) of the Convention also in regard to the length of the criminal proceedings, the Commission further notes that this claim was rejected principally on the ground that it had been lodged out of time.   The Commission is not competent to examine whether this finding was based on errors of law or fact unless such errors disclose a violation of the Convention.   It notes, however, that the applicant's appeal was dismissed by the Court of Appeal and that his criticism of the appellate court was rejected both by the Federal Court and the Federal Constitutional Court.   Agreeing with the Federal Constitutional Court, the Commission finds no indication that the civil courts arbitrarily considered the applicant's action as being time-barred.           This part of the application therefore has to be rejected under Article 27 para. 3 (Art. 27-3) either for non-observance of the six-month rule or for non-exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.   3.       Insofar as the applicant complains that his action for damages was wrongly dismissed, the Commission recalls its above findings concerning the criminal proceedings, in particular that there is nothing to show that the civil courts arbitrarily considered this action as being time-barred.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       Finally, insofar as the length of the civil proceedings is concerned, the applicant failed to raise this particular complaint before the Federal Constitutional Court.           It follows from the documents submitted by him that he only complained about the denial of legal aid and the alleged wrongful dismissal of his action for damages while he did not invoke his right to a final decision within a reasonable time which is, according to the Federal Constitutional Court (see EuGRZ 1981, 140, 143 and 1982, 75), also guaranteed by the Basic Law (Grundgesetz).           This part of the application therefore has to be rejected for non-exhaustion of domestic remedies in accordance with Articles 26 (Art. 26) and   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)