FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications no. 43839/06, 43832/06 and 43835/06
by Cornelia HAMMER-KAUHAUSEN, Birgit HEUSNER
and Manfred HORN
against Germany
The European Court of Human Rights (Fifth Section), sitting on
26 February 2008 as a Chamber composed of:
Peer Lorenzen, President,
Karel Jungwiert,
Volodymyr Butkevych,
Renate Jaeger,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above applications lodged on 1 August 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the cases together,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Ms Cornelia Hammer-Kauhausen, was born in 1956 and lives in Kerpen. The second applicant, Ms Birgit Heusner, was born
in 1958 and lives in Neunkirchen-Seelscheid. The third applicant,
Mr Manfred Horn, was born in 1955 and lives in Hürth. The applicants are German nationals. They were represented before the Court by
Mr B. Schreiber, a lawyer practising in Cologne, Germany. The respondent Government were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In the 1990s criminal investigations were instituted against the applicants on suspicion of fraud and breach of fiduciary duty committed in the course of their management of the IHV company’s real estate funds.
These investigations were also conducted against Mr Ommer
(see application no. 26073/03).
On 6 December 1990 the first applicant’s home was searched following a search warrant issued by the Cologne District Court and several documents concerning the funds managed by the IHV company were seized.
On 23 April 1996 the home of the second and third applicants were searched and several business documents were seized.
On 29 January 2003 the Cologne Public Prosecutor’s Office discontinued the proceedings against the applicants partly on grounds of insignificance, partly for a lack of sufficient suspicion that the applicants were guilty of the offences they had been suspected of. It notified the applicants thereof by letters dated 3 February 2003.
COMPLAINTS
The applicants complained under Article 6 § 1 of the Convention that the investigation proceedings instituted against them had lasted unreasonably long and that German law did not provide for any compensation of the damage incurred by them as a result of the duration of these proceedings.
THE LAW
The Court finds at the outset that due to the close factual and legal relationship between the three applications, these should be joined.
Article 37 § 1 of the Convention, in so far as relevant, provides:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application;
...
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court reiterates that – as the wording of Article 37 § 1 indeed indicates – an applicant’s intention not to uphold his or her application with the Court may not only be assumed if he or she expressly withdraws the application. “[T]he circumstances lead to the conclusion that ... the applicant does not intend to pursue his application” within the meaning of that Article also where he or she overtly or tacitly shows to have lost interest in the proceedings (see, for example, Mihailov v. Bulgaria (dec.), no. 52367/99, 9 September 2004; Zayed v. Germany (dec.), no. 35866/03,
20 February 2007). In particular, an applicant’s failure to submit written observations on the admissibility and merits of the case or other information and documents requested by the Court may warrant the conclusion that he or she does not intend to pursue the application (see, inter alia, Mihailov, cited above; Kazimov v. Russia (dec.), no. 17645/04, 9 March 2006).
The Court notes that the applicants’ counsel was invited to submit written observations on the admissibility and merits of the case, which he failed to do. After expiry on 3 June 2007 of the time-limit for submission of the observations, which had been extended on his motion, counsel for the applicants was reminded of the Court’s request by a letter dated
10 July 2007 and was advised that the failure to submit observations might result in the applications being struck out of the Court’s list of cases.
While the advice of receipt of its letter was returned to the Court, counsel did not reply to the Court’s letter sent to him by registered mail and in fact did not respond to the Court’s correspondence since 1 May 2007. Likewise, none of the three applicants, who were sent a copy of the Court’s letter of
10 July 2007 to their counsel both by normal and again by registered mail, replied to the Court’s request. There is nothing to indicate that each of them did not receive at least one of these letters.
The Court derives from this conduct that the applicants do not intend to pursue their applications within the meaning of Article 37 § 1 (a). Furthermore, having regard to the issues raised by the present cases, it does not consider that respect for human rights requires it to continue the examination of the applications pursuant to Article 37 § 1 in fine of the Convention.
Accordingly, the Court considers that Article 29 § 3 of the Convention should no longer apply and that the present applications should be struck out of its list of cases pursuant to Article 37 § 1 (a) of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to strike the applications out of its list of cases.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy