THE FACTS
The facts of the case, as presented by the parties, may be summarised
as follows:
I. The applicant is a German citizen, born in 1924 and at present
living in Hamburg.
The application concerns criminal proceedings in two cases involving
multiple charges of fraud - the D. and the R. case.
The Commission, by its partial decision of 14 December 1972, declared
the application inadmissible, with the exception of the applicant's
complaint under Article 6 (1) of the Convention relating to the length
of the criminal proceedings against him before the German authorities
in the R. case.
The present decision concerns this remaining complaint.
II. In the R. case, the applicant was accused:
(1) of having pretended, or caused representatives of agents of his
to pretend, to at least 1,315 indebted persons that the firm of R. and
later on, that of PR. would take over their debts and allow them more
favourable terms of payment; of having induced the persons concerned
to make out bills of exchange in respect of fees (Gebührenwechsel) and
to pay him fees when in reality he only wanted to pass on these
persons' instalment payments to their creditors and to ask the latter
for more favourable terms of payment:
(2) of having recruited at least 1,024 part-time workers (agents) and
made them believe that they were working for a sound business firm,
that they could expect good earnings for quite some time and that they
would be provided with a sufficient number of addresses of persons
interested in taking up a loan or in reorganising their debts, and of
having induced them to give security in, as a rule, an amount of DM
300,- which, so he was accused of having alleged, could be set off
against the commission or would be repaid.
III. The development of the criminal proceedings in this case, from
1963 until 1967, was as follows:
(1) The first charges of fraud were made in July 1963.
(2) On .. October 1963 the Public Prosecutor's Office applied for a
preliminary judicial investigation to be opened against the applicant
and three other persons; the investigation was opened on 6 November.
(3) On .. November 1963 the Hamburg business premises of the PR. were
searched and a large bulk of business papers and documents were seized.
Information was obtained from banks.
(4) On .. December 1963 a warrant was issued for the arrest of the
applicant who wanted to travel to South Africa. The applicant was
arrested in Zurich on .. December and surrendered to the German
authorities on .. December. From .. December 1963 until .. March 1964
he was detention on remand.
(5) In 1964 the investigation was extended to nine further accused.
A number of hearings of the accused took place.
To clarify the charges of the "security-giving matter", over 1,000
contracts made with the agents concerned were examined. In addition to
this, a total of 87 victims who had given such a security were heard
in other towns between .. August and .. September 1964. The question
was clarified what had become of the security payments (inter alia,
transfers to Post Office Bank accounts and bank accounts; Postal
Orders; C.o.D. Payments; cash payments; cheques and bills of exchange.)
To clarify the "debt-reorganising business", more than 1,300
debt-reorganising contracts were examined. Here, too, the payments were
followed up, and this with banks in Germany, Switzerland, Austria and
Liechtenstein.
(6) From .. March until .. April 1966 the applicant was again
detained on remand.
(7) On .. August 1966 the Investigating Judge, having concluded the
preliminary investigation, transmitted to the Public Prosecutor's
Office his final report comprising 1,069 pages together with the
case-file which, at that time, consisted of, inter alia:
100 principal files,
103 special files
40 folders with correspondence with agents
42 folders containing debt-reorganising cases
83 folders containing further evidence
23 business files
about 1,000 filing cards concerning the work and contracts of agents
about 500 account-cards of agents
2 folders containing control slips
1 folder containing control envelopes
1 file containing forms
1 plastic wrapper containing forms
18 supplementary files.
IV. After the preliminary investigation the proceedings developed as
follows
.../10/67 Warrant for the arrest of the accused P. issued by the
Public Prosecutor. The police investigations finally
ascertained that P. was probably deceased.
../4/68 Instruction of the Public Prosecutor to close the
investigation in this case.
../5/68 Application by the accused for being given an oral hearing
on the results of the investigation.
../5/68 Application by Rechtsanwalt M., as counsel instructed by X.,
for an extension by 8 weeks of the time given for pursuing
the final report.
../7/68 Final hearing of the accused R.
../8/68 Final hearing of the accused X.
../9/68 ..., on whom the accused G. had relied after the
investigations had been concluded, is heard as a witness by
the Public Prosecutor.
../10/68 Written pleadings on behalf of the accused R. by his
counsel.
../11/68 The indictment is preferred.
../12/68 Rechtsanwalt M. is appointed official counsel for the
accused X. after having so far been counsel of x's own
choice.
../12/68 Rechtsanwalt M., as counsel for X., applies for an extension
of the time for filing a statement until the end of January
1969.
../1/69 Change of competence as a result of a redistribution of
work. The case is now dealt with by the 10th Grand Criminal
Chamber (Große Strafkammer 10) instead of by the so far
competent 1st Grand Criminal Chamber of the Regional Court
(Landgericht) of Hamburg.
../1/69 Rechtsanwalt M., a counsel for the accused X., applies for
a further extension of time by 8 weeks for filing the
statement of defence. The application is granted.
../4/69 The Presiding Judge of the 10th Grand Criminal Chamber
enquiries with Rechtsanwalt M. after the date up to when he,
Dr. M., requests the extension of time for filing the
statement of defence in answer to the public charge.
../6/69 Rechtsanwalt M. applies for a further extension of time by
at least 5 months in view of the big volume of files and
records in the case. The application is granted.
../7/69 The proceedings against the accused A., B., C., D., E., and
F. are discontinued by order of the Court.
../7/69 The proceedings against the accused G. are discontinued by
an order of the Court.
../7/69 By an order of the court, the proceedings in the case of the
accused H. are provisionally stayed under Article 154 (2)
of the Code of Criminal Procedure.
../1/70 The Regional Court of Hamburg sets up special chambers for
dealing with white collar crime into which category also the
proceedings in X.'s case belong. Therefore this case now
falls to be dealt with by the newly reformed 16th Grand
Criminal Chamber which, in addition to this case, also takes
over a number of further criminal proceedings that had so
far been dealt with by other chambers.
../7/70 Appointment of one additional official counsel each for the
accused R., X. and Y. Rechtsanwalt T. is appointed 2nd
official counsel for X.
Counsel are informed that the decision of the opening of the trial and
an order fixing the trial date will be made in the course of the autumn
of 1970 and that it is intended to begin the trial of the three accused
R., X., and Y on ... November 1970.
../10/70 Order opening the trial in the case of the accused R., X.,
and Y.
../11/70 Warrant for the arrest of X. (who had apparently moved to
Liechtenstein).
../11/70 Warrant for the arrest of Y.
../11/70 A request is made out for an international search of the
accused X. and Y.
../11/70 Y. is arrested in Liechtenstein.
../11/70 Report of the criminal police Hamburg on the measures taken
since ... November 1970 in search of the accused X. and Y.
In X.'s case an arrest has not yet been possible. (It
appears that he fled via Italy and the United Kingdom to
Panama.)
../11/70 Beginning of the trial of R. and Y. before the Regional
Court of Hamburg. The proceedings against X. are separated
from the other proceedings and provisionally discontinued
under Article 205 of the Code of Criminal Procedure.
../12/70 An international search is instituted against X. in several
European countries.
../12/70 Rechtsanwalt M. asks for being released from representing
X. as official counsel in view of the fact, amongst others,
that X. has absconded.
../1/71 Rechtsanwalt M. is released from representing the accused
X. as official counsel.
../2/71 X. is apprehended in Trieste/Italy.
../2/71 Request by the Public Prosecutor's Office, Hamburg, to the
Public Prosecutor with the Court of Appeal (Corte die
Appello) of Trieste for X.'s provisional arrest pending
extradition.
../2/71 The Regional Court of Hamburg issues a warrant for X.'s
arrest for the purpose of his extradition.
../3/71 The Federal Republic of Germany requests his extradition
from Italy.
../3/71 The Federal Republic of Germany requests his extradition
from Italy.
../3/71 Judgment in the proceedings against R. and Y. is pronounced
by the Regional Court of Hamburg: R. and Y. are convicted
and sentenced to imprisonment, the corresponding part out
of the total sentence in the case of R. being four years and
four and a half years, respectively. The written reasons of
the judgment comprise 444 pages. The judgment becomes final
in 1972.
../7/71 The Court of Appeal of Trieste accedes to the Federal
Republic's request for extradition of .../3/71.
../1/72 Complete change in the composition of the 16th Grand
Criminal Chamber of the Regional Court of Hamburg as a
result of the distribution of work for the year 1972.
../2/72 X's appeal (ricorso) from the decision of the Court of
Appeal of Trieste of .../7/71 is dismissed by the Court of
Cassation (Corte Suprema di Cassazione).
../3/72 Temporary change in the presidency of the 16th Grand
Criminal Chamber of the Regional Court of Hamburg as a
result of the establishment of a new Schwurgericht (Criminal
Chamber supplemented by lay judges). The judge temporarily
acting as presiding judge of the 16th Grand Criminal Chamber
does so in addition to his activity in another Criminal
Chamber.
../4/72 X.'s extradition is granted by the Italian Ministry of
Justice and Grace.
../5/72 X. is surrendered to, and received in, the Federal Republic
of Germany.
../5/72 A new presiding judge for the 16th Grand Criminal Chamber
of the Regional Court of Hamburg has been appointed and is
taking over.
../5/72 Oral hearing for reviewing the pre-trial detention order
against X. by the Regional Court (16th Grand Criminal
Chamber). An order is made that his detention shall
continue.
../5/72 Clarifying statement made by the Italian Ministry of Justice
and Grace concerning the granting of X.'s extradition.
../5/72 X.'s appeal (Beschwerde) from the Regional Court's order of
../5/72 is dismissed by the Court of Appeal (Oberlandesgericht) of
Hamburg. The Court of Appeal states that he is strongly
suspected of having committed the offenses concerned, that
there is a danger of his absconding and that his continued
detention is not out of proportion to the importance of the
case and the sentence to be expected.
../7/72 The Court of Appeal reviews X.'s detention, under Article
121 of the Code of Criminal Procedure, and decides that it
shall continue.
../7/72 The Federal Constitutional Court (Bundesverfassungsgericht)
decides that X.'s constitutional appeal
(Verfassungsbeschwerde) against the decision of the Court
of Appeal of .../5/72 shall not be accepted for decision on
the ground that it does not offer a sufficient prospect of
success.
../7/72 X. asks for Frau Rechtsanwältin S. to be appointed official
counsel for his defence on the ground of differences with
his counsel, Dr. M. and Dr. T.
../8/72 Information from X. that he has cancelled Dr. M.'s brief as
counsel of his choice.
../8/72 Rechtsanwalt T. asks to be released from representing X. as
official counsel.
../9/72 The Presiding Judge of the 16th Grand Criminal Chamber
notifies the President of the Regional Court that it is
intended to start X.'s trial about the middle of November
1972 and announces that an additional judge and an
additional lay judge will be applied for because of the
expected duration of the trial of about five months.
../9/72 Rechtsanwalt T.'s appointment as official counsel for X. is
revoked and Frau Rechtsanwältin S. is appointed official
counsel in his place.
../10/72 The Court of Appeal of Hamburg makes a new order under
Article 121 of the Code of Criminal Procedure, for X.'s
continued detention pending trial.
../10/72 Rechtsanwalt W. is appointed additional counsel for the
accused X. and a date is fixed by the Presiding Judge of the
16th Grand Chamber of the Regional Court.
../11/72 Beginning of the trial of the accused X. (The case-file now
comprises, inter alia, 145 volumes of principal files, 50
witnesses and two experts have been summoned to give
evidence.)
../6/73 X. is convicted by the Grand Criminal Chamber of the
Regional Court of Hamburg on charges of fraud and sentenced
to four and a half years' imprisonment. The periods which
he spent in detention pending extradition (in Switzerland
and Italy) or pending trial (in Germany) are counted towards
his sentence. The warrant for his arrest is set aside.
Both X. and the Public Prosecutor's Office lodge an appeal on points
of law (Revision) with the Federal Court (Bundesgerichtshof).
Submissions of the parties
I. The respondent Government submit that the applicant's remaining
complaint under Article 6 (1) of the Convention, concerning the length
of the criminal proceedings against him in the R. case, is
inadmissible:
- for non-exhaustion of domestic remedies, and
- in any case, as being manifestly ill-founded and, furthermore,
as constituting an abuse of the right of petition.
1. The Government state that, according to the Federal Court's
case-law in criminal matters (judgment of 10 November 1971, Neue
Juristische Wochenschrift 1972, pages 402, et seq.), a violation of
Article 6 (1), as alleged in the present case, has to be taken into
account in fixing the applicant's sentence. The applicant could raise
this issue in the appeal proceedings before the Federal Court. He could
furthermore file another constitutional appeal with the Federal
Constitutional Court. It follows that he has not yet exhausted all the
domestic remedies available to him under German law and that the
remainder of his application is therefore inadmissible under Articles
26 and 27 (3) of the Convention.
2. Alternatively, the Government submit that the remaining complaint
is manifestly ill-founded and, moreover, constitutes an abuse of the
right of petition within the meaning of Article 27 (2), of the
Convention. In the Government's view, the period to be considered under
Article 6 (1) in the present case cannot, in the light of the special
circumstances of the case, be called unreasonably long. The
clarification of the complicated facts, and of the large number of
alleged offenses, inevitably took up considerable time. Furthermore,
the proceedings were not delayed by the authorities, but by the
applicant's escape in 1970 and his subsequent refusal to stand trial.
The Government submit in particular:
(a) That the period to be considered under Article 6 (1) of the
Convention began on the day of the applicant's arrest in Switzerland
on ... December 1963 and that it is still running.
(b) That the criminal proceedings were not delayed. The only reason
for the length of the time taken up by the preliminary investigation
(1963-1966) was the exceptionally large number of alleged offenses that
had to be investigated, and the time consumed by this cannot be said
to have been too long.
(c) It was also justified or, respectively, necessary to institute
a search for the accused P. after the preliminary investigation was
concluded, and to grant a final hearing. As the Public Prosecutor
dealing with the case had first to make himself acquainted with the
bulk of the material, the time that elapsed between .... August 1966
and ... November 1968, the date when the charge was preferred, must be
regarded as being within limits taking into account the entire
circumstances of the case.
(d) In 1969 counsel for the applicant was granted several extensions
of time of some duration for filing the statement of defence, in answer
to the charge. The proceedings were, furthermore, speeded up by the
proceedings against several other accused being discontinued. An
automatic delay was unavoidable when on ... January 1970 a new Special
Chamber for white collar crime at the Regional Court of Hamburg took
over these proceedings and certain others. In spite of this, the trial
was opened as early as ... October 1970. As the great amount of
disputed material had again to be examined in preparation of the
decision for opening the trial, the time between the preferment of the
charge and the decision on the opening of the trial was not
unreasonably long.
(e) The trial in the case of the accused R. and Y. began on ...
November 1970. The applicant himself is responsible for the fact that
he did not appear at that trial but avoided being tried by absconding.
If he had taken part in the trial it would have been possible in the
summer of 1971, at the latest, to give judgment with regard to his
alleged offenses. He therefore has only himself to blame for the delay
of the proceedings caused by his absconding abroad. The period up to
... May 1972, the day when the applicant was surrendered to the Federal
Republic of Germany, must therefore be left out of consideration when
determining the question whether or not the criminal proceedings took
an unreasonably long time.
(f) After ... May 1972 it was not possible to have a new trial for
the applicant start at once. The composition of the 16th Grand Criminal
Chamber of the Regional Court of Hamburg had been changed on ...
January and again on ... May 1972, so that it became necessary once
again for the big volume of files and records to be studied and worked
through. Apart from this, the official counsels were exchanged on the
applicant's request. In view of this situation of fact the new trial
of the applicant was not started unreasonably late when it began on ...
November 1972.
(g) Taking into account the big volume of the matter and the fact
that an expert was challenged during the trial, it cannot be said that
the trial proceedings lasted too long. In order to arrive at the truth,
the Criminal Chamber had to elucidate the complicated facts thoroughly
according to German criminal procedural law.
(h) It follows that there is manifestly no violation of Article 6 (1)
and that the applicant's submission alleging such a violation
constitutes an abuse of the right of petition, for he himself, by
absconding to a foreign country, prevented the criminal proceedings
from being terminated at an earlier date.
II. The applicant submits in reply:
- that all domestic remedies have been exhausted in respect of his
remaining complaint under Article 6 (1) of the Convention, and
- that this complaint is neither manifestly ill-founded nor
abusive.
1. As regards the question of exhaustion of domestic remedies, the
applicant recalls that the Federal Constitutional Court, on ... July
1972, decided not to accept for decision his constitutional appeal
concerning his continued detention pending trial on the ground that it
did not offer a sufficient prospect of success. He concludes from this
decision that any new domestic remedy alleging a violation of Article
6 (1) of the Convention would prove equally ineffective.
2. As regards the question whether his remaining complaint is
manifestly ill-founded or abusive, the applicant considers that the
criminal proceedings against him in the R. case "could and should have
been finished a long time ago" and that he himself is not responsible
for "the length of the case lasting for ten years".
The applicant submits in particular:
(a) That the proceedings should have been accelerated during his
detention in 1963/64 and thereafter.
(b) That it was unnecessary "to hear thousands of complaints as
witnesses". The case revealed a certain system and, consequently, only
"a restricted number of complaints could and should have been
considered".
(c) That he was repeatedly released pending trial. While his release
in 1964 had been made dependent on a cash security of 25,000 DM, the
release two years later was ordered without any security. This showed
that the authorities "were quite prepared to take their own
responsibility in dealing with the warrant of arrest". They therefore
cannot blame him for absconding to a foreign country.
THE LAW
I. The respondent Government submit in the first place that the
applicant's remaining complaint under Article 6 (1) (Art. 6-1) of the
Convention concerning the length of the criminal proceedings against
him in the R. case, is inadmissible for non-exhaustion of domestic
remedies (Articles 26 and 27 (3) (Art. 26, 27-3) of the Convention).
The applicant contests this view.
The Commission does not find it necessary to determine this issue,
which raises complicated questions under Article 26 (Art. 26) of the
Convention, as it follows from the reasons stated under II below that
the application must in any case be declared inadmissible as being
manifestly ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention.
II. Article 6 (1) (Art. 6-1) of the Convention provides that, in the
determination of any criminal charge against him, everyone is entitled
to a hearing "within a reasonable time". The Commission, in its
examination of the applicant's complaint relating to the length of the
proceedings in the R. case, has first ascertained the period to be
considered under Article 6 (1) (Art. 6-1) and then evaluated the
concrete circumstances of the case, taking into account not only its
complexity and the manner in which it was handled by the national
authorities, but also the applicant's own conduct.
1. In its determination of the period to be considered under Article
6 (1) (Art. 6-1), the Commission has had regard to the judgment of the
European Court of Human Rights in the "Wemhoff, Neumeister"
and "Ringeisen" Cases (see European Court of Human Rights "Wemhoff"
case and "Neumeister" case, judgments of 27 June 1968, and "Ringeisen"
case, judgment of 16 July 1971), and to its own opinion in the
"Soltikow" Case (see Report of 3 February 1970) as confirmed by the
Committee of Ministers' decision of 19 February 1971 (see Resolution
DH (71) 1).
In accordance with this case-law, the period to be taken into
consideration under Article 6 (1) (Art. 6-1) begins with the date on
which a person is charged. The term "charge" cannot, on the one hand,
be construed in the terms of the domestic law of any of the Contracting
States but must be interpreted independently. On the other hand, it may
be necessary to have regard to the whole system and practice of
criminal procedure of the State against which the application is
directed in order to interpret and thus delimit the notion of "charge"
for the purpose of applying that notion to the facts of a particular
case under consideration (see the Commission's opinion in the Soltikow
Case). Three possible starting dates emerge from the above case-law:
the date of the applicant's arrest, the date of the opening of
preliminary investigations against him, or the date of the filing of
the indictment. It is difficult, therefore, to identify the particular
moment in time when an applicant before the Commission can be said to
have been charged in the context of Article 6 (1) (Art. 6-1).
The Commission considers that, in order to resolve that question in the
present case, it must revert to the principle which it established in
the Neumeister Case to the effect that "the relevant stage is that at
which the situation of the person concerned has been substantially
affected as a result of the suspicion against him" (see the
Commission's Report of 27 May 1966, page 81). This situation has been
held to exist in Austrian cases where preliminary judicial
investigation had been opened against the applicant. The Commission
considers that the situation under German law is in this respect
comparable to that under Austrian law. It notes that, in the present
case, a preliminary judicial investigation was opened against the
applicant and three further suspects on ... November 1963.
The Commission concludes that the period to be considered under Article
6 (1) (Art. 6-1) began in this case on the above date.
2. The closing date of the said period is normally that on which
criminal charges are finally determined by an acquittal or a
conviction, even if this determination is made on appeal by a court
which pronounces upon the merits of the charge, and the Commission
refers in this regard to the judgments of the European Court of Human
Rights and to its case-law (see for example the "Wemhoff", "Neumeister"
and "Ringeisen" Cases.)
The same result can be achieved where the criminal proceedings
terminate otherwise, e.g. by their discontinuance, and in this respect
the Commission refers to its decision on the admissibility of
Application No. 4550/70, Graf Soltikow against the Federal Republic of
Germany (Collection of Decisions, Vol. 38, p. 123).
The charges against the applicant were determined at first instance on
... June 1973 and he appealed. However, there are special reasons for
not adopting either this or any later date as the close of the period
under Article 6 (1) (Art. 6-1) in the present case.
The Commission observes that an order opening the trial in the case of
the applicant and two further accused was made on ... October 1970. The
applicant however, did not appear for trial but apparently fled from
Liechtenstein , where he was then residing, via Italy and the United
Kingdom to Panama. An international search warrant was issued against
him in several European countries and he was finally apprehended in
Italy on ... February 1971. The Federal Republic of Germany requested
his extradition and the Court of Appeal of Trieste, on ... July 1971,
acceded to the request. The applicant's appeal from this decision was
dismissed by the Court of Cassation on ... February 1972. On ... April
the Italian Ministry of Justice and Grace granted his extradition and
on ... May 1972 he was surrendered to, and received in, the Federal
Republic of Germany.
In the meanwhile, the trial of the other two accused had taken place
and judgment had been given by the Regional Court of Hamburg on ...
March 1971. A new trial had to be held for the applicant; it opened
on ... November 1972.
It follows that the applicant himself, by his escape and refusal to
appear in court, prevented his own trial from starting in 1970 and
that, as a result of his own conduct, his own trial began two years
later than that of his co-accused.
The Commission finds that it must take this element into consideration
when determining, in the present case, the relevant period under
Article 6 (1) (Art. 6-1) of the Convention. It therefore concludes that
this period lasted from ... November 1963 (opening of the preliminary
judicial investigation) until ... October 1970 (order opening the
trial), that is to say, for approximately seven years.
The Commission has next considered the question whether this period
exceeded the limits of a "reasonable time" as laid down in Article 6
(1) (Art. 6-1). In approaching this question, it has had regard to the
principles which have been developed by the European Court of Human
Rights particularly in its judgments of 27 June 1968 in the "Wemhoff"
and "Neumeister" Cases, and which have been summarised in the
Commission's Report of 19 March 1970, in the "Ringeisen" Case as
confirmed in the Court's judgment of 16 July 1971 in that case.
According to these principles, the question whether or not the
applicant, in the determination of the criminal charges against him in
the R. case, has had a hearing "within a reasonable time" in the sense
of Article 6 (1) (Art. 6-1) of the Convention must be decided by an
evaluation of the concrete circumstances of the case, in particular:
the complexity of the case as a whole, the manner in which it was
handled by the prosecuting authorities and courts, and the applicant's
own conduct.
The complexity of the case against the applicant and his co-accused is
manifest, given the number of acts done, witnesses to be heard, and
countries in which enquiries had to be made. The Commission finds that
there were a number of factors causing delay in the criminal
proceedings against the applicant and his co-accused from 1963 to 1970,
including the redistribution of judicial work on two occasions.
However, it is plain that the delays, and requests for extensions of
time, by counsel for the applicant were an inseparable and major cause
of the whole delay. Furthermore, they were either necessary, given the
complexity of the case or, on the other hand, they were only designed
to postpone trial, a motive indicated by the two flights abroad of the
applicant in 1963 and in 1970, at a time when his trial was to take
place, and his persistent refusal, until 1972, to return to Germany to
stand trial.
In either case the Commission, in considering the entire period between
1963 and 1970, concludes that the applicant's remaining complaint that
reasonable time was exceeded under Article 6 (1) (Art. 6-1) is
manifestly ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention.
For these reasons, the Commission DECLARES THE REMAINDER OF THIS
APPLICATION INADMISSIBLE