CEDH · CASELAW;REPORTS;ENG — 30 juin 1993

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                                FIRST CHAMBER                          Application No. 13882/88                           Siegfried Gritschneder                                   against                                   Germany                          REPORT OF THE COMMISSION                          (adopted on 30 June 1993)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1 - 6). . . . . . . . . . . . . . . . . . . . . . . . 1   II.    ESTABLISHMENT OF THE FACTS       (paras. 7 - 25) . . . . . . . . . . . . . . . . . . . . . . . 2   III.   OPINION OF THE COMMISSION       (paras. 26 - 43). . . . . . . . . . . . . . . . . . . . . . . 5         A.    Complaint declared admissible            (para. 26) . . . . . . . . . . . . . . . . . . . . . . . 5         B.    Point at issue            (para. 27) . . . . . . . . . . . . . . . . . . . . . . . 5         C.    The alleged violation of Article 6 para. 1            of the Convention            (paras. 28 - 43) . . . . . . . . . . . . . . . . . . . . 5              CONCLUSION            (para. 43) . . . . . . . . . . . . . . . . . . . . . . . 7   APPENDIX I:       PARTIAL DECISION ON THE ADMISSIBILITY                  OF THE APPLICATION . . . . . . . . . . . . . . . . 8   APPENDIX II:      FINAL DECISION ON THE ADMISSIBILITY                  OF THE APPLICATION . . . . . . . . . . . . . . . .13   I.     INTRODUCTION   1      The present report concerns Application No. 13882/88 by Siegfried Gritschneder against the Federal Republic of Germany, introduced on 13 September 1987 and registered on 20 May 1988.   2      The applicant, born in 1940, is a German national and resident in Wuppertal.   He is a jurist.         The Federal Republic of Germany are represented by their Agent, Mr. J. Meyer-Ladewig, Ministerialdirigent, of the Federal Ministry of Justice.   3      On 2 December 1991 the Commission communicated the applicant's complaint about the length of criminal proceedings against him. Following an exchange of memorials, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 8 September 1992.   The decision on admissibility is appended to this Report.   4      Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 30 June 1993 in accordance with Article 31 para. 1 of the Convention, the following members being present:              MM.    F. ERMACORA, Acting President of the First Chamber                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI   5      In this report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by the German Government.   6      The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 1 of the Convention.   II.    ESTABLISHMENT OF THE FACTS   7      In 1983 criminal proceedings were instituted against the applicant and his father on the suspicion of defamation.   8      At the end of December 1983 or beginning of January 1984 the Wuppertal Police Office (Kreispolizeibehörde) summoned the applicant to be heard on the charges against him.   The applicant refused any statements before police authorities and announced written submissions.   9      On 19 April 1984 the Augsburg Public Prosecutor's Office (Staatsanwaltschaft) preferred the indictment (Anklageschrift) against the applicant and his father.   They were charged with having made defamatory remarks about the former custodian of the applicant's deceased uncle and staff of the Neuburg District Court, in particular the judicial assistant (Rechtspfleger) in charge of custody matters. In the ensuing proceedings the applicant was assisted by counsel.   10     On 27 February 1985 the applicant and his father, the Vice President of the Augsburg Regional Court (Landgericht), the President of the Neuburg District Court (Amtsgericht), counsel for the custodian and the legal officer concerned agreed upon a settlement concerning all disputes, including the hierarchical complaints (Dienstaufsichts- beschwerden) brought by the applicant and his father.   The agreement provided for termination of the criminal proceedings by withdrawal of the charges (Rücknahme der Strafanträge).   In March 1985 the applicant withdrew his consent to the settlement.   11     In April 1985 the applicant and his father lodged a petition with the Bavarian Diet (Landtag).   In this context the criminal files were sent to the President of the Augsburg Regional Court and subsequently to the President of the Munich Court of Appeal (Oberlandesgericht). The files were returned end of September 1985.   In the meantime the case had been assigned to another judge at the Neuburg District Court. In January 1986 the applicant asked the District Court about the state of the proceedings.   12     On 16 January 1986 the Neuburg District Court committed the applicant and his father for trial (Eröffnung des Hauptverfahrens).   13     On 14 April 1986 the Neuburg District Court, following hearings on 24 and 26 March, 7 and 14 April 1986, convicted the applicant and his father of defamation on two counts and imposed fines of DM 2,000 each, namely fifty daily rates à DM 40.   14     The District Court, having heard several witnesses, found that the applicant and his father, in four letter adressed to the President of the Munich Court of Appeal, the President of the Augsburg Regional Court and the Munich Court of Appeal, respectively, had wrongly reproached the former custodian of the applicant's deceased uncle and staff of the Neuburg District Court, in particular the judicial assistant in charge of custody matters, with misuse of powers and irregularities, inter alia, in respect of the sale of a collection of coins.   The defamatory remarks concerned were not justified for protection of the applicant's and his father's legitimate interests (Wahrnehmung berechtigter Interessen).   In view of the circumstances of the case they were inappropriate and disproportionate means to clarify the allegations.   Several requests by the applicant and his father to take further evidence were dismissed.   15     The judgment was served on 16 June 1986.   16     On 30 January 1987 the Augsburg Regional Court (Landgericht), upon the appeals (Berufungen) lodged by the applicant and his father, quashed the District Court's judgment of 14 April 1986 and acquitted them.   The Regional Court, proceeding on the basis of the same facts as the District Court, considered that the defamatory remarks in question were justified as means to protect legitimate interests. Despite official information to the contrary, the accused had been convinced of the alleged irregularities at the Neuburg District Court to the disadvantage of the applicant's deceased uncle.   As relatives and heirs, they could not be blamed for having addressed themselves to all possible authorities in order to have the alleged criminal offences prosecuted.   17     The judgment was served upon the Public Prosecutor's Office on 10 March 1987.   Following several reminders, it was served upon the applicant on 19 June 1987.   18     On 22 October 1987 the Bavarian Court of Appeal, upon the appeal on points of law (Revision) of the Augsburg Public Prosecutor's Office, quashed the judgment of the Augsburg Regional Court.   The establishment of the material facts was upheld. The case was sent back to another Chamber at the Augsburg Regional Court.   The Court of Appeal considered that the applicant could not claim to have protected his legitimate interests after official information that his defamatory remarks were incorrect.   In December 1987 the files were sent back to the Augsburg Regional Court.   19     On 7 March 1988 the Federal Constitutional Court (Bundesver- fassungsgericht) declared inadmissible the applicant's and his father's constitutional complaint (Verfassungsbeschwerde) concerning the judgment of the Bavarian Court of Appeal of 22 October 1987 and the delay of the criminal proceedings.   The Constitutional Court found in particular that, having regard to the subsidiary character of a constitutional complaint, the applicant had to raise his complaint about the length first in the proceedings as such, especially at the trial and possibly in his appeal on points of law.   It was first for the competent courts to establish whether or not proceedings had lasted unreasonably long, and to draw the necessary consequences.   20     On 29 July 1988 another Chamber of the Augsburg Regional Court conducted the hearing on the appeals of the applicant and his father. In the course of the hearing the Public Prosecutor's Office proposed to discontinue the proceedings against the applicant in view of his minor guilt.   The applicant did not agree.   The proceedings against the applicant's father were discontinued.   21     On 29 July 1988, following the hearing, the Regional Court dismissed the applicant's appeal against the judgment of 14 April 1986. The fine was reduced to DM 1400 (35 daily rates à DM 40).   22     The Regional Court found that the applicant had made defamatory remarks about the above-mentioned persons, the truth of which he had failed to prove.   The Regional Court considered that the first two letters, except for the offensive terms in the first letter, were justified on the ground that the applicant and his father had acted to protect their legitimate interests.   After these first letters, the applicant had been informed by the Director of the Neuburg District Court about the incorrectness of his allegations, and about the comments of the persons concerned. Moreover, he had received the decision of the Public Prosecutor's Office to discontinue the prosecution of these persons.   Following this official information by the competent authorities, he could no longer claim to have acted in order to protect his legitimate interests.   23     In fixing the sentence the Regional Court noted that the proceedings had been conducted very slowly, partly due to the applicant's numerous submissions.   Balancing all aggravating and mitigating circumstances, in particular its findings as regards the first two letters, the Regional Court found a fine calculated on the basis of 35 daily rates to be appropriate and sufficient.   24     On 15 March 1989 the Bavarian Court of Appeal dismissed the applicant's appeal on points of law against the Regional Court's judgment of 29 July 1988.   The judgment was served on 5 April 1989.   25     On 27 September 1989 the Federal Constitutional Court refused to admit the applicant's constitutional complaint on the ground that it offered no prospect of success.   The Constitutional Court considered in particular that the judgments complained of could not be objected to under constitutional law.   The reasoning of the trial courts did not disclose any arbitrariness.    The Regional Court had taken the length of the proceedings duly into account when considering all relevant circumstances in fixing the sentence.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   26     The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time.   B.     Point at issue   27     The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   C.     The alleged violation of Article 6 para. 1 (Art. 6-1)       of the Convention   28     Article 6 para. 1 (Art. 6-1) of the Convention includes the following provision:         "In the determination of ... any criminal charge against him,       everyone is entitled to a ... hearing within a reasonable time       by (a) ... tribunal ..."   29     The Government considered that there was no indication that the length of the proceedings was in breach of Article 6 para. 1 (Art. 6-1).   The applicant objected thereto.   a.     The relevant period   30     The period to be taken into consideration started at the latest in December 1983/January 1984 when the applicant was summoned to be heard upon the charge against him.   It ended on 5 April 1989, when the decision of the Federal Court of Justice dismissing his appeal on points of law dated 15 March 1989 was served upon him.   The proceedings in the criminal courts thus lasted approximately five years and three months, whereas the proceedings before the Federal Constitutional Court took a further five months.   b.     The reasonableness of the length of the proceedings   31     The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case.   In this instance the circumstances call for an overall assessment (see Eur. Court H.R., Ficara judgment of 19 February 1991, Series A no. 196-A, p. 9, para. 17).   32     The Government attribute the length of the proceedings to the complexity of the case and the conduct of the applicant.   They submit in particular that the applicant had started a complex fight against misuse of powers by Bavarian judicial authorities which complicated the criminal proceedings against him.   He refused to settle the disputes out of court and did not agree to a discontinuation of the proceedings because of his minor guilt.   33     As far as the complexity of the case is concerned, the Commission notes that the proceedings concerned charges of defamation, namely remarks contained in several letters drafted by the applicant.   The proceedings did not raise any complex factual problems or difficult legal issues.   34     The Commission considers that the applicant's attitude towards the proceedings and the Bavarian judicial authorities had no impact on the complexity of the case as such.   35     As regards the applicant's conduct in the course of the proceedings the Commission notes that the Augsburg Regional Court, in its judgment of 29 July 1988, stated that some delay was caused by his repeated submissions.   However, the Commission finds that Article 6 (Art. 6) of the Convention did not require the applicant to co-operate with the judicial authorities (cf., Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 50, p. 36, para. 82).   Moreover, he was under no obligation to agree to a termination of the proceedings excluding a determination of the charge against him.   36     Furthermore, the Commission notes that the applicant made use of the remedies available to him in the criminal proceedings and had resort to hierarchical complaints and other petitions.   Though no reproach can be levelled against him for having made full use of the remedies available to him under domestic law, such conduct constitutes an objective fact, not capable of being attributed to the respondent State, which is to be taken into account when determining the reasonableness of the length of proceedings (Eur. Court H.R., Eckle judgment, loc. cit.).   37     The Commission considers that the applicant's conduct caused some delay.   However, it cannot alone justify the overall length of the criminal   proceedings against him.   38     As to the conduct of the authorities, the Government submit that the question of undue delays only arises in respect of the proceedings at first instance.   The preliminary investigations and the appeal proceedings subsequent to the District Court's judgment of 14 April 1986 were terminated within periods of six to nine and a half months.   The attempts of the Augsburg Regional Court to find an arrangement with the applicant and his father had taken ten months, a period which could not be attributed to the respondent Government. Furthermore, the criminal files had to be sent to other authorities dealing with petitions lodged by the applicant.   Some unavoidable delay was caused by the fact that the competent judge dealing with the applicant's case changed.   39     The Commission has examined the conduct of the German judicial authorities in the course of the criminal proceedings as a whole.   40     The Commission notes that the Augsburg Regional Court, in its judgment of 29 July 1988, accepted that the case was slowly dealt with by the competent authorities.   41     The Commission considers in particular that the intention of the judicial authorities to come to an arrangement with the applicant and his father does not sufficiently explain the delay in the period between the bill of indictment of 19 April 1984 and the decision of the Neuburg District Court to commit the applicant for trial (16 January 1986), i.e. one year and nine months.   Moreover, it is not obvious that the second round of appeal proceedings before the Regional Court and the Court of Appeal could not be terminated in less than nine and seven months, respectively.   42     In the light of all the circumstances in the present case, the Commission cannot regard as "reasonable" a lapse of time of more than five years to determine the charges of defamation against the applicant.         CONCLUSION   43     The Commission concludes by eight votes to two that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.           Secretary                            Acting President    to the First Chamber                    of the First Chamber         (M.F. BUQUICCHIO)                        (F. ERMACORA)