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His driving licence was provisionally withdrawn for about four and a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)