AS TO THE ADMISSIBILITY OF
Application No. 15652/89
by Claus Hermann Paul BACHER
against the Federal Republic of Germany
The European Commission of Human Rights (First Chamber)
sitting in private on 17 April 1991, the following members being present:
MM. F. ERMACORA, Acting President of the First Chamber
J.A. FROWEIN
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
H. DANELIUS
Sir Basil HALL
MM. C.L. ROZAKIS
L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
B. MARXER
Mr. M. de SALVIA, Secretary to the First Chamber
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 August 1989
by Claus Hermann Paul BACHER against the Federal Republic of Germany
and registered on 19 October 1989 under file No. 15652/89;
Having regard to the report provided for in Rule 47 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
parties, may be summarised as follows:
The applicant, born in 1937, is a German national and resident
in Berlin. He is a lawyer by profession. Before the Commisison he is
represented by MM. F. Tappe, W. Bender, P. Günnewich and J. B. Müller,
lawyers practising in Berlin.
Since 1975 the Berlin Tax Office (Finanzverwaltung) suspected
the applicant and others of tax evasion committed in 1974 in the
context of fictitious business activities and losses of a group of
limited partnerships (Kommanditgesellschaften) in Berlin, and
thereafter started investigation proceedings. The Berlin Prosecutor's
Office (Staatsanwaltschaft) started preliminary investigations in
December 1975.
On 11 February 1976 the Tiergarten District Court (Amts-
gericht) issued several search warrants on the suspicion of fraud and
other offences which concerned various private and business premises
in the Federal Republic of Germany and Switzerland, including the
applicant's premises in Berlin. The applicant submits that he heard
about the search warrants in April 1976 and requested to be heard upon
the charges against him. Following rogatory proceedings and
consultation with the Swiss authorities the searches were effected on
22 November 1976. In the applicant's premises 24 files were seized.
On 23 November 1976 the applicant again requested the Berlin
Public Prosecutor's Office to be heard upon the suspicion against him.
Furthermore, in written submissions, he commented upon the search
warrant and the charges therein.
On 6 December 1976 the Prosecutor's Office requested the
Berlin Tax Frauds Department (Steuerfahndungsstelle) to examine the
fiscal aspects of the documents seized. The Department submitted its
report on 27 April 1977.
In the meantime, Mr. M., a Swiss national affected by one of
the above searches in Switzerland, had objected to the delivery of
various documents seized on the occasion of that search. The Berlin
Prosecutor's Office awaited the outcome of these proceedings until
January 1979 when it was informed that M. had appealed against a first
decision ordering the delivery.
From September until November 1979 the Public Prosecutor's
Office, having previously examined numerous tax files, heard the
accused and several witnesses. The applicant was questioned on
19 September 1979.
On 30 January 1980 the Berlin Public Prosecutor's Office
preferred an indictment (Anklageerhebung) against the applicant and
seven other accused on charges of tax evasion and related financial
offences.
On 30 June 1980 the Presiding Judge at the Berlin Regional
Court (Landgericht) returned the indictment for amendment in view of a
judgment of the Federal Court of Justice (Bundesgerichtshof) of
20 June 1980 concerning similar issues.
On 15 August 1980 the Public Prosecutor's Office preferred a
new indictment against the applicant and two further accused. On
30 March 1981 the Regional Court, following proceedings concerning
warrants of arrest, ordered that the indictment be sent to the
accused. The indictment was served on 16 April 1981. On 20 October
1981 one of the co-accused commented upon the indictment.
Furthermore, in 1981 proceedings were again pending before
Swiss authorities concerning the delivery of the above-mentioned
documents. Eventually, some of the documents were delivered in May
1982.
On 25 November 1982 the Berlin Regional Court committed the
applicant and his co-accused for trial (Eröffnung des Hauptverfahrens)
as regards part of the indictment. As regards the remainder of the
charges, the Regional Court found that prosecution had become
time-barred (Verfolgungsverjährung).
On 16 February 1983 the Berlin Public Prosecutor's Office,
having regard to the Regional Court's decision of 25 November 1982,
preferred an amended indictment.
On 12 January 1984 the Berlin Regional Court discontinued the
criminal proceedings as regards two counts of the indictment of 16
February 1983, and committed the accused for trial as regards the
remainder of the charges.
On 30 January 1984 the trial against the applicant and his two
co-accused concerning charges of tax evasion and related offences on
fourteen counts opened before the Berlin Regional Court. It continued
for 182 days until 13 November 1986. It follows from the verbatim
record that on numerous days the trial lasted only about 2 to 25
minutes (1984: 27, 28 February; 12 March; 1985: 21 February;
4, 12 July; 5 August; 26 September; 3, 10 October; 4, 11, 18, 25
November; 2, 9, 16, 23, 30 December; 1986: 6, 13, 20, 27 January;
20, 27 February; 13, 20, 25 March; 10, 21, 28 April; 5, 12, 22 May;
9, 16, 25 June; 17, 24, 31 July; 7, 14, 21, 28 August, 4 September).
In the course of the trial, i. e. on 12 March 1985 the
Regional Court, upon request of one of the accused, ordered that
several witnesses residing in Switzerland be heard. The rogatory
letters to that effect remained, at the time, unsuccessful. The
request was thereupon refused on 30 May 1985. Further requests to hear
witnesses residing in Switzerland were dismissed on 10 June and
24 October 1985 as well as on 10 February 1986. One further witness
was heard at the German Consulate in New York in April 1986. Following
appeal proceedings as regards the rogatory letters of March 1985, two
witnesses were heard in Switzerland in May and September 1986.
On 13 November 1986 the Berlin Regional Court convicted the
applicant of having acted as accessory to tax evasion on one count and
sentenced him to six months' imprisonment on probation. One
co-accused was convicted of tax evasion on one count. The proceedings
against the third co-accused were discontinued; the proceedings
against the applicant and the second co-accused were discontinued as
regards the remaining counts of the indictment on the ground that
prosecution had become time-barred in the meantime.
In its judgment comprising 391 pages, the Regional Court
found that the accused had been managers and accountant, respectively,
of a group of limited partnerships formed to take advantage of the tax
allowances for depreciation (Abschreibungsgesellschaften), in
particular tax allowances in support of the Berlin industry. The Court
had regard to fictitious business activities of these firms conducted
from 1970 until 1974 which had resulted in fictitious losses and thus
incorrect tax assessments in respect of the limited partners. In the
course of the trial, the prosecution as regards the majority of these
charges became time-barred, only one count of tax evasion and
accessory to tax evasion in connection with business activities in
1974 remaining to be considered. With regard to the fixing of the
sentence, the Regional Court considered as mitigating circumstances
the fact that since 7 April 1975 the Berlin Tax Office had considered tax
evasion possible. Furthermore, the offences had been committed a long
time ago, the accused had not been previously convicted and had been
considerably burdened as a result of the length of the proceedings
for which they could not be held responsible - burdens which they had
never tried to avoid. As far as their defence strategy had allowed,
they had to a large extent co-operated in the establishment of the
facts ("Im übrigen wirkte sich bei beiden Angeklagten aus, daß die
Tatzeit lange zurückliegt, daß sie bisher nicht bestraft sind und
durch die lange, von ihnen nicht zu verantwortende Verfahrensdauer
großen Belastungen ausgesetzt waren, denen sie sich zu keiner Zeit zu
entziehen suchten. Soweit es ihre Verteidigungsstrategie erlaubte,
haben sie auch in weitem Umfang zur Aufklärung des Sachverhalts
beigetragen.")
The Regional Court also decided that the accused had to bear
the costs of the proceedings insofar as they had been convicted, the
remainder had to be borne by the Treasury. However, in accordance
with S. 467 para. 3, second sentence, of the Code of Criminal
Procedure (Strafprozeßordnung), the Regional Court declined to order
the Treasury to bear the accuseds' own expenses - insofar as the
proceedings had been discontinued. In this respect, the Regional
Court considered that, having regard to its above findings as regards
the accuseds' business activities for years, they would certainly have
been convicted on the other counts of the indictment, had the
prosecution not become time-barred in the course of the trial.
Furthermore, after the taking of evidence had already been closed on
24 October 1985, one of the applicant's co-accused, in requesting to
take further evidence in hearing witnesses living abroad, had
prevented the Regional Court from terminating the trial before
prosecution had become time-barred. The cost and time spent in the
further taking of evidence and the intermediate hearings
(Zwischentermine) were necessary in order to avoid a completely new
start of the trial under S. 229 of the Code of Criminal Procedure (old
version).
The applicant lodged an appeal on points of law (Revision).
The written judgment was served upon the applicant on 21 September 1987.
On 16 October 1987 the applicant submitted the reasons of his
appeal on points of law. He complained inter alia about the length of
the proceedings and referred to Article 6 para. 1, first sentence, of
the Convention.
On 27 January 1989 the Federal Court of Justice dismissed the
applicant's appeal on points of law. The decision was served on
6 February 1989.
On 19 April 1989 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde). The Constitutional Court found
that the complaint was inadmissible as regards the proceedings before
the Berlin Regional Court, and that the remainder offered no prospect
of success.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the
Convention about the length of the criminal proceedings against him.
He considers in particular that the length of the proceedings was not
adequately considered as a mitigating circumstance, in that it was
mentioned in half a sentence, and in that it was not indicated how far
the sentence had been reduced.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 August 1989 and registered
on 19 October 1989.
On 15 February 1990 the Commission decided that notice should
be given to the German Government of the application and that the
Government should be invited to submit written observations on the
admissibility and merits of the case.
After an extension of the time-limit, the Government's
observations were submitted on 25 May 1990. The applicant's
submissions in reply were also submitted after an extension of the
time-limit on 28 August 1990.
On 8 January 1991 the Commission decided that the application
should be referred to the First Chamber.
THE LAW
The applicant complains under Article 6 para. 1 (Art. 6-1) of
the Convention that the criminal proceedings against him were not
terminated within a reasonable time.
Article 6 para. 1 (Art. 6-1) provides, inter alia, that in the
determination of any criminal charge against him, everyone is entitled
to a hearing within a reasonable time.
The respondent Government do not contest the admissibility of
the application. Having regard to the relevant criteria established be
the Convention organs, they consider that the applicant's right to a
hearing within a reasonable time was not violated. They refer in
particular to the difficult legal and factual issues raised in the
criminal proceedings against the applicant and his co-accused. Delays
caused by the rogatory proceedings concerning Switzerland had to be
taken into account in order to secure a full establishment of the
facts. Furthermore, having regard to the close link between the
charges against the applicant and his co-accused, the proceedings
against him could not be conducted separately. Moreover, since
February 1985 the length of the trial was due to the accuseds'
repeated requests to take further evidence.
As regards his own conduct and the conduct of his co-accused
in the course of the proceedings, the applicant refers to the findings
of the Berlin Regional Court in its judgment of 13 November 1986
according to which the accused could not be held responsible for the
length of the proceedings. He is of the opinion that both the
investigations and the court proceedings were unreasonably delayed by
the conduct of the German authorities.
The Commission considers that the applicant's complaint about
the length of the criminal proceedings against him, which lasted
about thirteen years, raises questions of facts and of law, which are
of such a complex nature that their determination requires an
examination of the merits. The application cannot, therefore, be
declared manifestly ill-founded under Article 27 para. 2 (Art. 27-2)
of the Convention. No other grounds for inadmissibility have been
established.
For these reasons, the Commission unanimously,
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the First Chamber Acting President of the First Chamber
(M. DE SALVIA) (F. ERMACORA)
Full & Egal Universal Law Academy