AS TO THE ADMISSIBILITY OF
Application No. 14733/89
by Arno KROPF
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 2 July 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 8 December 1988
by Arno Kropf against the Federal Republic of Germany and registered
on 7 March 1989 under file No. 14733/89;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, born in 1926 and living in
Berlin. He is represented by Mr. H. Mahler, a lawyer in Berlin.
The facts submitted are as follows.
In June 1969 the office of the Public Prosecutor in Düsseldorf
instituted investigation proceedings against the applicant and his
business partner, Mr. M., who were both suspected of fraudulent
business practices, namely of having obtained loans on the basis of
mortgages which had been overestimated. A search and seizure order
was issued against the applicant by the District Court (Amtsgericht)
Tiergarten in Berlin on 23 June 1969. Evidence was obtained from
several banks and credit institutes. In 1974 an indictment was filed
accusing the applicant and his partner of having committed fraud to
the detriment of thirteen banks.
On 16 November 1976 the applicant and M. were acquitted by the
Bielefeld Regional Court (Landgericht). The expenses incurred by the
defendants and the cost of the proceedings were imposed on the treasury.
The Court also ordered that the acquitted be paid compensation in
respect of several prosecution measures, in particular searches
effected at several banks and credit institutes.
The Public Prosecutor lodged an appeal on points of law
(Revision) which it withdrew, however, on 29 July 1977.
It appears that, prior to the indictment, the Public Prosecutor
provisionally discontinued the proceedings in part and only decided in
May 1979 to discontinue this part of the proceedings definitely. The
order granting the applicant compensation for prosecution measures
was set aside on 16 November 1979 on the ground that he was responsible
for the necessity of the investigative measures.
On 16 November 1979 the applicant brought an action against
the Land Northrhine-Westphalia requesting the Court to state that the
defendant had to compensate all damages caused to him, his wife and
his partner in consequence of miscarriage in office committed in
connection with the criminal proceedings against him, in particular in
consequence of a press conference given by the Public Prosecutor in
December 1969 denouncing him as a fraudulent person. Allegedly his
business partners, such as banks and credit institutes had thereupon
cancelled all credit agreements with him. This had led to the
collapse of his business activities, had obliged him to liquidate his
real estate holdings, and had eventually caused the loss of all his
assets.
The applicant's request to be granted legal aid was rejected
by the Regional Court on 14 November 1981. The applicant appealed and
on 28 December 1983 the Court of Appeal (Oberlandesgericht) of Hamm
ordered the Regional Court to grant legal aid for part of the intended
action. On 16 March 1984 the applicant specified his claims on the
basis of an expert opinion which he had in the meantime received. He
claimed some 208,000,000 DM and a finding that further damages had to
be paid by the defendant. On 29 March 1985 the Regional Court refused
to grant legal aid for this action. An appeal against this decision
was rejected on 3 February 1986.
The applicant then provisionally limited his claim to
114,000,000 DM.
This action was dismissed by the Dortmund Regional Court
on 26 March 1987 on the grounds that the claims were time-barred.
The Court held that the only acts of public officials which could
possibly be considered as having violated the applicant's rights
were the declarations made by the Public Prosecutor at the press
conference in December 1969. However, the applicant had had knowledge
of the effects of this press conference at least since the end of
1972. Consequently he had not raised his alleged claim within the
statutory period of three years as he lodged his action only in 1979.
The time-limit for lodging the action had not been suspended
until the applicant's acquittal because the relevant facts were known
since 1972 and there was nothing to show that from the applicant's
point of view it was unreasonable to bring a civil action while the
criminal proceedings against him were still pending. Furthermore,
the applicant had not shown that he had been threatened with arrest or
other prosecution measures to prevent him from lodging the action for
damages while the criminal proceedings were still pending.
The applicant's appeal (Berufung) against the judgment
of 26 March 1987 was rejected by the Hamm Court of Appeal on
10 February 1988. This Court referred to its findings in a parallel
case brought by the applicant's wife who had likewise claimed damages
on the same grounds as the applicant. This action was dismissed by
the Regional Court and, on appeal, by the Hamm Court of Appeal on
28 November 1986. An appeal on points of law (Revision) was rejected
by the Federal Court (Bundesgerichtshof) on 29 October 1987. A
constitutional complaint was to no avail.
In the judgment referred to of 28 November 1986 it was, inter
alia, stated that no miscarriage in office had been committed by
public officials in the course of the criminal proceedings against the
applicant. According to the principle of legality (Legalitätsprinzip)
the Public Prosecutor had an obligation to investigate and bring an
indictment whenever the circumstances gave reason to suspect a person
of having committed a criminal offence. Already the fact that the
applicant and his partner had made large and illegal donations of
money to several bank employees had given reason to suspect them of
having bribed those employees for the purpose of receiving in return
unjustified advantages. The appellate court added that in any event
the action was, as held by the lower court, time-barred and that there
had been no circumstances justifying a suspension of the time-limit.
In particular, there was nothing to show that pressure by the Public
Prosecutor had prevented the applicant from lodging his claim for
damages. The outcome of the criminal proceedings did not influence
this claim, which only depended on the question whether or not the
statements made by the Public Prosecutor at a press conference in
December 1969 and other investigation measures had to be considered as
constituting a miscarriage in office. As the applicant had known the
facts on which he based his claim for damages at least since 1972, he
should have lodged his action before the end of 1975 in order to
comply with the three year time-limit provided for in Section 852 (1)
of the Civil Code (BGB).
The applicant's request for legal aid in order to be able to
lodge an appeal on points of law was rejected by the Federal Court on
26 May 1988.
A constitutional appeal against the latter decision was
rejected by a group of three judges of the Federal Constitutional
Court on 8 August 1988 as offering no prospects of success.
A constitutional appeal against the civil courts' decisions
refusing legal aid was likewise rejected by a group of three judges
on 8 August 1988 partly as being inadmissible and partly as offering
no prospects of success. It is stated, inter alia, in the decision
that the considerations of the civil courts relating to the issue of
whether the applicant's claim was time-barred were unobjectionable
insofar as constitutional law was concerned.
COMPLAINTS
The applicant complains of the length of the criminal proceedings
against him, alleging that for seven years he lived under the threat
of being arrested and detained on remand. In this respect he invokes
Articles 5 and 6 of the Convention. He further alleges a violation
of the presumption of innocence (Article 6 para. 2) because the
activities of the investigating police officers and prosecutors led
to press publications branding him as a large-scale crook.
Furthermore, he submits that he was denied a fair hearing and
a decision within a reasonable time in the civil proceedings where his
action for damages was, in his opinion, wrongly dismissed.
THE LAW
1. Insofar as the applicant alleges a violation of the
presumption of innocence, the Commission notes that he was acquitted
and is therefore no longer a victim of the alleged procedural
irregularity. This part of the application is consequently manifestly
ill-founded and must be rejected in accordance with Article 27 para. 2
(Art. 27-2) of the Convention.
In any event the final decision in the main criminal
proceedings was given on 16 November 1976 when the Regional Court
acquitted the applicant of the charges retained in the indictment. It
is true that the Public Prosecutor appealed, but he withdrew his
appeal on 29 July 1977. The Commission also notes that criminal
proceedings provisionally discontinued before the indictment were not
definitely discontinued until May 1979. The present application
was only introduced on 8 December 1988, that is more than six months
later. The present complaint would therefore also have to be rejected
in accordance with Articles 27 para. 3 (Art. 27-3) for non-observance
of the six months' rule laid down in Article 26 (Art. 26) of the
Convention.
2. The same reasoning as stated above applies insofar as the
applicant complains of the length of the criminal proceedings.
In addition the Commission refers to the jurisprudence of the
Federal Constitutional Court according to which the excessive length
of proceedings can be invoked in a constitutional complaint. The
applicant failed to lodge such a complaint. He only referred to the
length of the criminal proceedings in connection with his
constitutional complaints against the decisions given in the civil
proceedings relating to his action for damages. However, the action
for damages was based on the allegation that the prosecution
authorities caused the applicant's ruin in that their actions led his
business partners, such as banks and credit institutes, to believe
that he was a large-scale crook. The length of the criminal
proceedings was referred to in the civil proceedings only in support
of the argument that it would be unreasonable to consider the claim
for damages time-barred as from 1975 onwards while the applicant was
not acquitted before 16 November 1976 and parts of the criminal
proceedings, provisionally discontinued before the indictment, were
not definitely discontinued until May 1979. In these circumstances
the civil action, in which the applicant was required to show that
public officials had committed miscarriage in office, cannot be
considered a remedy with regard to the present complaint about the
length of the criminal proceedings.
Moreover, even assuming that the civil action for damages,
which was lodged on 16 November 1979 and alleged a violation of the
presumption of innocence, constituted an effective remedy within the
meaning of Article 26 (Art. 26) of the Convention also in regard to
the length of the criminal proceedings, the Commission further notes
that this claim was rejected principally on the ground that it had
been lodged out of time. The Commission is not competent to examine
whether this finding was based on errors of law or fact unless such
errors disclose a violation of the Convention. It notes, however,
that the applicant's appeal was dismissed by the Court of Appeal and
that his criticism of the appellate court was rejected both by the
Federal Court and the Federal Constitutional Court. Agreeing with the
Federal Constitutional Court, the Commission finds no indication that
the civil courts arbitrarily considered the applicant's action as
being time-barred.
This part of the application therefore has to be rejected
under Article 27 para. 3 (Art. 27-3) either for non-observance of the
six-month rule or for non-exhaustion of domestic remedies within the
meaning of Article 26 (Art. 26) of the Convention.
3. Insofar as the applicant complains that his action for damages
was wrongly dismissed, the Commission recalls its above findings
concerning the criminal proceedings, in particular that there is
nothing to show that the civil courts arbitrarily considered this
action as being time-barred.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
4. Finally, insofar as the length of the civil proceedings is
concerned, the applicant failed to raise this particular complaint
before the Federal Constitutional Court.
It follows from the documents submitted by him that he only
complained about the denial of legal aid and the alleged wrongful
dismissal of his action for damages while he did not invoke his right
to a final decision within a reasonable time which is, according to
the Federal Constitutional Court (see EuGRZ 1981, 140, 143 and 1982, 75),
also guaranteed by the Basic Law (Grundgesetz).
This part of the application therefore has to be rejected for
non-exhaustion of domestic remedies in accordance with Articles 26
(Art. 26) and 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy