AS TO THE ADMISSIBILITY OF
Application No. 13882/88
by Siegfried GRITSCHNEDER
against the Federal Republic of Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 8 September 1992, the following members being present:
MM. F. ERMACORA, Acting President of the First Chamber
J.A. FROWEIN
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
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 13 September 1987
by Siegfried GRITSCHNEDER against the Federal Republic of Germany and
registered on 20 May 1988 under file No. 13882/88;
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 1940, is a German national and resident
in Wuppertal. He is a jurist.
In 1983 criminal proceedings were instituted against the
applicant and his father on the suspicion of defamation.
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.
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 following proceedings the applicant was assisted by counsel.
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
renounced his consent to the settlement.
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 Neustadt District Court.
In January 1986 the applicant asked the District Court about the state
of the proceedings.
On 16 January 1986 the Neustadt District Court committed the
applicant and his father for trial (Eröffnung des Hauptverfahrens).
On 14 April 1986 the Neustadt District Court, upon 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 2000 each,
namely fifty daily rates à DM 40.
The District Court, having heard several witnesses, found that
the applicant and his father, in various letters, 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 rightful interests
(Wahrnehmung berechtigter Interessen). In view of the circumstances
of the case they were inappropriate and disproportionate means to
clarify the allegations. The request of the defence to hear the
custodian was dismissed on the ground of his lasting bad health. The
request to consult internal files of the Director of the Neustadt
District Court was dismissed with regard to the Director's refusal to
hand over these documents destined for internal use only.
The judgment was served on 16 June 1986.
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 rightful interests.
Despite official information to the contrary, the accused had been
convinced of the alleged irregularities at Neustadt 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.
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.
On 22 October 1987 the Bavarian Court of Appeal (Oberlandes-
gericht), 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 rightful interests after official
information that his defamatory remarks were incorrect. In December
1987 the files were sent back to the Neustadt Regional Court.
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.
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.
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).
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. After his first letters, the applicant had been
informed by the Director of the Neustadt District Court about the
incorrectness of his allegations, he had been informed about the
comments of the persons concerned and had received the decision of the
Public Prosecutor's Office to discontinue prosecution of these persons.
After this official information by the competent authorities, he could
no longer claim to have acted in order to protect his rightful
interests.
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, it found a fine calculated on the basis of
35 daily rates to be appropriate and sufficient.
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.
On 27 February 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.
COMPLAINTS
The applicant complains about the length of the criminal
proceedings against him. He also complains that the proceedings were
unfair, in particular that the Neustadt District Court at the trial in
1986, and the Augsburg Regional Court at the trial in 1988 had not duly
taken evidence. He invokes Articles 5, 6 and 10 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 13 September 1987 by the
applicant and his father and registered on 20 May 1988.
On 2 December 1991 the Commission communicated the applicant's
complaint about the length of criminal proceedings against him. In a
partial decision, it declared his father's complaints inadmissible.
On 8 April 1992 the respondent Government submitted observations
on the admissibility and merits, which they supplemented on 3 June
1992. Observations in reply were submitted by the applicant on 14 and
28 June 1992. He also made submissions on further occasions.
THE LAW
1. The applicant considers that the criminal proceedings against him
exceeded a reasonable time within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention. Article 6 para. 1, so far as relevant,
provides:
"In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time
..."
a. The Commission observes that mitigation of sentence and
discontinuance of prosecution accorded on account of the excessive
length of proceedings may deprive the individual concerned of his
status as a victim within the meaning of Article 25 (Art. 25), when the
national authorities have acknowledged, either expressly or in
substance, and then afforded redress for, the breach of the Convention
(Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, pp.
30-31, para. 66, p. 38, para. 87).
The Commission notes that the Augsburg Regional Court, in its
judgment of 29 July 1988, states that the proceedings had been
conducted very slowly, however, that some delay was caused by the
applicant's repeated submissions. The sentence was fixed without
particular reference to the length of the proceedings.
The Commission considers that the German Court thereby neither
acknowledged a breach of the applicant's right to a hearing within
reasonable time, nor were there sufficient indications as to the extent
to what the length of the proceedings was taken into account when
fixing the sentence.
Accordingly, the applicant may claim to be a victim of his right
to trial within reasonable time, as guaranteed under
Article 6 para. 1 (Art. 6-1).
2. The Government contend that the applicant failed to exhaust, as
required under Article 26 (Art. 26) of the Convention, the domestic
remedies available to him under German law in respect of his complaint
about the length of the initial part of the criminal proceedings
against him, namely the proceedings up to the Augsburg Regional Court's
judgment of 30 January 1987. They consider that the applicant should
have raised this complaint already at the first trial before the
Neuburg District Court or at least in the course of the first set of
appeal proceedings before the Augsburg Regional Court.
The Commission notes that, in the course of the criminal
proceedings against him, the applicant lodged a constitutional
complaint with the Federal Constitutional Court about the delay of the
proceedings. On 7 March 1988 the Federal Constitutional Court declared
this complaint inadmissible on the ground that, having regard to the
subsidiary character of the constitutional complaint, the applicant had
to raise the length issue first in the proceedings as such, in
particular at the trial and possibly in his appeal on points of law.
After termination of the criminal proceedings against him, i.e.
the decision of the Bavarian Court of Appeal of 15 March 1989
dismissing his appeal on points of law, the applicant again lodged a
constitutional complaint about, inter alia, the length of these
proceedings. On 27 February 1989 the Federal Constitutional Court
refused to admit this constitutional complaint on the ground that it
offered no prospect of success. As regards the length of the
proceedings, the Constitutional Court found that the Regional Court had
taken it duly into account when fixing the sentence.
In these circumstances, the Commission considers that the
applicant's constitutional complaint after termination of the criminal
proceedings against him, which was not rejected for non-exhaustion of
ordinary remedies or other formal reasons, constituted exhaustion of
domestic remedies, as required by Article 26 (Art. 26) of the
Convention.
c. Furthermore, the parties discussed the question of the
reasonableness of length of the criminal proceedings at issue in the
light of the criteria established by the Convention organs.
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.
The Commission, having regard to all the information in its
possession, finds that the applicant's complaint about the length of
the criminal proceedings against him raises questions of fact and of
law, which can only be determined upon an examination on the merits.
The complaint cannot, therefore, be declared manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2). No other grounds
for declaring it inadmissible have been established.
2. The applicant further complains about his conviction by the
Augsburg Regional Court of defamation, and also about the court
proceedings concerned, in particular an allegedly unfair taking of
evidence. He invokes Articles 5, 6 and 10 (Art. 5, 6, 10) of the
Convention. However, the Commission, having examined the remainder of
the applicant's complaints, finds that it does not disclose any
appearance of a violation of the Convention rights invoked by him.
For these reasons, the Commission, unanimously,
1. DECLARES ADMISSIBLE THE APPLICANT'S COMPLAINT ABOUT THE LENGTH
OF THE CRIMINAL PROCEEDINGS AGAINST HIM;
2. DECLARES INADMISSIBLE THE REMAINDER OF HIS COMPLAINTS.
Secretary to the First Chamber Acting President of the First Chamber
(M. de SALVIA) (F. ERMACORA)
Full & Egal Universal Law Academy