FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 45486/09
by Michael JOSTEN
against Germany
The European Court of Human Rights (Fifth Section), sitting on 28 September 2010 as a Committee composed of:
Mark Villiger, President,
Isabelle Berro-Lefèvre,
Ganna Yudkivska, judges,
and Stephen Phillips, Deputy Registrar,
Having regard to the above application lodged on 19 September 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Michael Josten, is a German national who was born in 1953 and lives in Zug (Switzerland). He is represented before the Court by Mr M. Reinhart, a lawyer practising in Munich.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
The applicant, a financial auditor and tax consultant, had been involved in stock transactions as the consultant of a company group and as the managing director of one of the group's companies dealing with real estate funds. From 1996 to 1998 the applicant misused investors' funds he held in trust by transferring them to the accounts of the company group.
On 16 October 1998, after his partners had filed an insolvency petition for the company group, the applicant turned himself in to the Lörrach Public Prosecutor's Office.
2. Preliminary investigations
On 14 January 1999 the Mannheim Public Prosecutor's Office, which had taken over the proceedings, notified the applicant that preliminary investigations were opened against him.
In March 1999 the insolvency administrator submitted documents concerning the account movements in the funds since 1996 to the police.
On 8 April 1999 the Lörrach District Court issued a search and seizure warrant concerning further documents. On 29 April 1999 the documents were voluntarily handed over to the police.
On 24 August 1999 the Mannheim District Court issued an arrest warrant against the applicant. On 8 September 1999 the Mannheim District Court suspended the execution of the arrest warrant on certain conditions. On 30 December 2004 the Mannheim District Court lifted the arrest warrant.
On 26 October 1999 the Mannheim Public Prosecutor's Office assigned an accountant to perform an audit of the company group's accounts.
Subsequently further search and seizure warrants were issued, documents were seized or handed over voluntarily, numerous witnesses were heard and the later co-defendants were questioned.
On 30 March 2002 the assigned accountant rendered his report. Hereafter the police carried out further investigations.
On 1 September 2003 the police handed over to the Mannheim Public Prosecutor's Office their final report on the criminal investigation.
On 30 and 31 October 2003 the applicant's lawyers were allowed to consult the case-files (Akteneinsicht). On 22 December 2004 the applicant's lawyers submitted their comments.
3. Intermediate proceedings (Zwischenverfahren)
On 25 January 2005 the Mannheim Public Prosecutor's Office filed the bill of indictment (Anklageerhebung) comprising 164 pages with the Mannheim Regional Court. On 31 March 2005 the applicant submitted his comments. On 9 November 2006 the Mannheim Regional Court opened the trial (Eröffnungsbeschluss).
4. Proceedings before the Regional Court
The trial began on 12 January 2007 and after 7 days of trial the Mannheim Regional Court, on 16 March 2007, convicted the applicant of breach of trust (Untreue) on 176 counts and of fraudulent preference of creditors (Gläubigerbegünstigung) and sentenced him to two years and six months' imprisonment. In fixing the length of the sentence, the Regional Court, inter alia, took into consideration as mitigating factors that the offences dated back more than ten years and that there was an undue delay “of at least two years” in the proceedings, namely from the filing of the bill of indictment in January 2005 to the opening of the trial in January 2007. Moreover, it took into account that due to the expected sentence, the uncertainty about the extent of the sentence, the obligations in conjunction with the arrest warrant and the unclear professional consequences, the applicant was under constant mental pressure since the beginning of the investigations in 1998. Referring to Article 6 § 1 of the Convention the court held that against this background the sentence had to be reduced by 50 % and underlined that in the case of a prompt conviction the sentence would have been approximately the double. As regards the length of the preliminary investigation the Regional Court explicitly held that here had been no undue delay. While the applicant argued that the investigation could have been terminated much faster due to him and the co-defendants having turned themselves in, the Regional Court held that according to the statements of the public prosecution the voluntary disclosures had been no sufficient basis for an indictment and that it shared the public prosecutor's view that the investigation had been factually extensive and complicated and legally difficult.
5. Proceedings before the Federal Court of Justice
On 20 March 2008 the Federal Court of Justice dismissed the applicant's appeal on points of law as being unfounded. As to the length of the proceedings the applicant had argued that there had been an undue delay of at least three years in the investigation proceedings and that the criminal proceedings against him would have had to be discontinued. The Federal Court of Justice, firstly, referred to the submissions of the Federal Public Prosecutor of 17 December 2007 and held that the appeal was inadmissible concerning the complaint about the length of the investigation proceedings as the applicant had failed to sufficiently substantiate his complaint. Furthermore, the Federal Public Prosecutor had argued with reference to the concrete course of the investigation that contrary to the applicant's assertions the public prosecution had adequately advanced the investigation proceedings. With regard to the complexity of the charges, the severity of the applicant's offences and the vast extent of the investigation he therefore found that there had been no undue delay in the investigation. The Federal Court of Justice, secondly, elaborated on the course and the importance of the intermediate proceedings and the practical difficulties of criminal courts to proceed within short delay during this phase of the proceedings, in particular where economic offences are concerned. Finally, the Federal Court of Justice also held that against the background of the entire length of the court proceedings the reduction of 50 % was unreasonably high and that such reduction could only be explained with the Regional Court having taken into account other additional factors than the length of the court proceedings when fixing the sentence.
6. Proceedings before the Federal Constitutional Court
On 24 January 2009 the Federal Constitutional Court refused to admit the applicant's constitutional complaint holding that it was unfounded. The decision was served on the applicant's lawyer on 20 February 2009.
Firstly, the Federal Constitutional Court found that the courts had not misconceived the relevance and the consequences of the right to a fair trial. It held that the sentence imposed was not disproportionate and that the Regional Court as well as the Federal Court of Justice had found an undue delay in the proceedings. It stressed that even though the Regional Court had not expressly specified to what extent exactly the sentence had been mitigated because of the undue delay, the extent of the delay was sufficiently compensated as it had been taken into consideration as a mitigating factor when fixing the sentence. The Regional Court also had expressly taken into account the unclear professional consequences and the mental pressure inter alia due to the arrest warrant. Moreover, the Federal Constitutional Court referred to the Federal Court of Justice's finding that the reduction of 50 % was unreasonably high and could only be explained with other additional factors having been taken into account. As to the applicant's complaint that the Regional Court had not found an undue delay as regards the preliminary investigation, the Federal Constitutional Court held that the Regional Court had adequately examined whether there had been an undue delay in the preliminary investigation. Against the background that the proceedings concerned several accused persons, that the investigation had been factually extensive and complicated and that the voluntary disclosures had been no sufficient basis for an indictment, the Federal Constitutional Court found that the Regional Court's finding of no undue delay was arguable. Moreover, the applicant had not been subject to extraordinary burdens, which only could have been compensated by discontinuing the criminal proceedings against him.
Secondly, the Federal Constitutional Court found that the Federal Court of Justice did not apply exaggerated formal requirements in declaring inadmissible the applicant's appeal concerning the length of the investigation proceedings and that, in any event, the Federal Court of Justice had also examined that complaint in the merits.
COMPLAINT
The applicant complained under Article 6 § 1 of the Convention about the length of the criminal proceedings.
THE LAW
The applicant complained that the criminal proceedings instituted against him were not concluded within a reasonable time, as required by Article 6 § 1 of the Convention. The said Article reads, insofar as relevant, as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The applicant argued that it was insufficient to only take into account the length of the proceedings when fixing the length of the sentence and that the proceedings would have had to be discontinued. Moreover, the Regional Court had only taken into consideration the length as one mitigating factor besides others. Hence, the reduction of the sentence was only partly due to the length of the proceedings and it was not clear to what extent this was the case.
The Court finds that the period to be taken into consideration under Article 6 § 1 began on 14 January 1999, when the Public Prosecutor's Office notified the applicant that preliminary investigations were opened against him (see Eckle v. Germany, 15 July 1982, § 73, Series A no. 51) and ended on 20 February 2009, when the Federal Constitutional Court's decision was served on the applicant's lawyer. The proceedings at stake thus lasted over 10 years for the investigation proceedings, the intermediate proceedings and trial at three levels of jurisdiction. However, having regard to the domestic courts' reasoning concerning the length of the proceedings and notably the Regional Court's reducing the applicant's sentence by 50 %, the question arises whether the applicant may still claim to be a victim of a violation of the Convention.
The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” of a violation of a Convention right unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, inter alia, Eckle v. Germany, cited above, § 66, Series A no. 51, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).
As to the redress which has to be afforded to an applicant in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation found. In cases concerning a breach of Article 6 § 1 due to the excessive length of criminal proceedings, the Court has repeatedly found that redress could notably be granted by adequately reducing the prison sentence of the person found guilty of an offence in an express and measurable manner (see, inter alia, Eckle v. Germany, cited above, §§ 67, 87, and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 186, ECHR 2006-V).
The Court observes that the Regional Court found that there had been an undue delay “of at least two years” in the proceedings and reduced the sentence by 50 % with reference to Article 6 § 1 of the Convention. As regards the length of the preliminary investigation the Regional Court explicitly found that there had been no undue delay. Nevertheless, when fixing the sentence it took into account that the offences dated back more than ten years and that due to the effects of the concrete investigations, the applicant was under constant mental pressure since the beginning of the investigations. In this context, the Court underlines that both the Federal Court of Justice and the Federal Constitutional Court pointed out that the reduction of 50 % was unreasonably high and could only be explained with additional factors having been taken into account. Moreover, the assigned accountant alone took two years and five months to perform an audit and render his report. Hereupon further investigations had to be carried out and the final report on the investigation had to be given, which together took another one year and five months. The applicant's lawyers themselves also took another one year and three months to submit their comments after consulting the case-file.
Against this background, regarding the proceedings as a whole and in particular with regard to the considerably high reduction of the sentence by 50 %, the Court concludes that the domestic courts have taken specific note of the issues arising under Article 6 § 1 (see Savola v. Finland (dec.), no. 14132/02, 6 September 2005) and provided adequate redress in respect of the lengthy proceedings.
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.
Stephen PhillipsMark Villiger
Deputy RegistrarPresident
Full & Egal Universal Law Academy