THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 53875/00
by Uwe GÖRGES
against Germany
The European Court of Human Rights (Third Section), sitting on 7 May 2002 as a Chamber composed of
MrI. Cabral Barreto, President,
MrG. Ress,
MrL. Caflisch,
MrP. Kūris,
MrJ. Hedigan,
MrsM. Tsatsa-Nikolovska,
MrK. Traja, judges,
andMrV. Berger, Section Registrar,
Having regard to the above application lodged on 21 October 1999 and registered on 13 January 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant, Uwe Görges, is a German national, who was born in 1946 and lives in Hamburg, Germany. He is represented before the Court by Hans Kober, a lawyer practising in Hamburg.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In spring 1986, criminal investigations were initiated against the applicant on the suspicion of his participation in planning several transactions of illegal sales of weapons to the Republic of Iran.
On 30 September 1991, the Hamburg District Court convicted the applicant of several counts of offences under the Law to Control International Weaponry (Kriegswaffenkontrollgesetz). It found that he had counselled and participated in planning the illegal sales of weapons to the Republic of Iran. The applicant was sentenced to seven months’ imprisonment on probation.
On 20 July 1994, the Hamburg Regional Court, upon the applicant’s appeal, amended the District Court’s decision to the effect that he was found guilty of only one offence under the Law to Control International Weaponry. It imposed a fine amounting to 90 daily rates of 60 DEM (approximately 30 Euro).
On 2 September 1996, following the applicant’s appeal on points of law, the Hanseatic Court of Appeal repealed this decision and referred the case back to a different chamber of the Hamburg Regional Court. It found that the procedural delays caused by judicial organs had not been taken into account by the lower court.
On 11 April 1997, the Hamburg Regional Court confirmed its decision of 20 July 1994. It briefly mentioned the delays in proceedings, but found that, bearing in mind the gravity of the offence, 90 daily rates was the lowest possible sentence.
On 15 October 1997, the Hanseatic Court of Appeal, following the applicant’s second appeal on points of law, also quashed the decision of April 1997 and referred the case back to yet another chamber of the Hamburg Regional Court. It found that the judicial organs had unnecessarily prolonged proceedings for more than four years and that this constituted a violation of the German Basic Law (Grundgesetz) and of Article 6 of the Convention. However, it found that, contrary to the applicant’s submissions,
this did not constitute a procedural impediment that would warrant for proceedings to be discontinued. Finally, the Court of Appeal noted that in its decisions, the Regional Court had failed to show if and to what extent the excessive length of proceedings had an effect on the sentence.
On 13 January 1998, the Hamburg Regional Court amended the decisions of 20 July 1994 and 2 September 1996 while changing the sentence to the effect that the fine was reduced to 80 daily rates of 60 DEM.
It found that the following delays had been unnecessary and were attributable to the judicial organs: although the Office of the Public Prosecutor of Hamburg had been in possession of most of the relevant information by December 1988, the indictment was not submitted before July 1990, which amounted to a delay of about one year and five months. The District Court’s decision of 30 September 1991, having been finalised for service on 9 December 1991, was not served upon the applicant before 11 March 1992, i. e. three months later. The proceedings were not furthered between April 1992 and April 1993, when the case was transferred to another Chamber of the Regional Court. In appeal proceedings before the Hanseatic Court of Appeal, the Office of the Public Prosecutor took about one year and eight months (October 1994 - June 1996) to submit its memorial to the Court of Appeal. These delays amounted to four years in total.
The Regional Court found that the delays and the excessive length of proceedings were in breach of the German Basic Law and Article 6 of the Convention. Having regard to all circumstances, the Regional Court concluded that the procedural delays did not require that the proceedings be discontinued. Weighing all personal mitigating and aggravating factors, the Regional Court found that, without taking account of the procedural delays, it would have imposed a fine of 120 daily rates of 60 DEM. It reduced the fine to 90 daily rates, on account of the above-mentioned delays in the past, and, in a second step, further reduced the fine to 80 daily rates, considering the further delays caused by the appeal proceedings.
On 26 April 1999, the Hanseatic Court of Appeal rejected the applicant’s appeal.
On 28 June 1999, the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint. The Federal Constitutional Court found, in particular, that the Hamburg Regional Court had given a detailed account of the delays attributable to the judiciary and had taken these delays into account when reducing the fine by 40 daily rates. The reduced fine did not reach the statutory limits for inclusion in a certificate of good conduct (Führungszeugnis) and would be removed from the applicant’s criminal record after the minimum statutory period. The Regional Court had therefore sufficiently reduced the sentence on account of the procedural delays.
COMPLAINT
The applicant complains under Article 6 of the Convention about the length of the criminal proceedings before the German national courts.
THE LAW
The applicant complains that the criminal proceedings instituted against him were not concluded within a reasonable time, as required by Article 6 § 1 of the Convention.
Article 6 § 1, insofar as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a...hearing within a reasonable time...”
As regards the period to be taken into account under Article 6 § 1, the Court observes that proceedings started in spring 1986, when the applicant was informed that he was suspected of having committed a criminal offence, and ended on 28 June 1999, when the Federal Constitutional Court refused to entertain his constitutional complaint. Thus, they lasted for more than thirteen years.
Having regard to the German courts’ reasoning concerning the length of proceedings, the question arises whether the applicant may still claim to be a victim of a violation of the Convention.
The Court recalls that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a victim within the meaning of Article 34 of the Convention unless the national authorities have acknowledged either expressly or in substance and then afforded redress for the breach of the Convention (see Dalban v. Romania judgment [GC], no. 28114/95, § 44, CEDH 1999-VI; Eckle v. Germany judgment of 15 July 1982, Series A no. 51, § 66; Jansen v. Germany, no. 44186/98, decision of 12 October 2000, Beck v. Norway, no. 26390/95, judgment of 26 June 2001, § 27).
In the present case, the Hamburg Regional Court found that procedural delays attributable to the authorities had occurred and expressly upheld the applicant’s complaint under Article 6 § 1 of the Convention that the proceedings had exceeded a reasonable time. It accordingly reduced the fine of 120 daily rates which it would have imposed, had the proceedings not been delayed, to 80 daily rates. The Federal Constitutional Court found that the Regional Court had thereby provided sufficient redress for the delays caused by the judicial organs.
In these circumstances, the Court is satisfied that the German courts had taken specific note of the breach of Article 6 § 1 and had provided an adequate redress for this violation, contrary to the applicant’s argument that proceedings should have been discontinued.
The applicant cannot, therefore, complain to be a victim of a violation of his right to a hearing within a reasonable time, as guaranteed under Article 6 § 1.
It follows that the application must be rejected in accordance with Article 35 § 3 and § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent BergerIreneu Cabral Barreto
RegistrarPresident
Full & Egal Universal Law Academy