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)