AS TO THE ADMISSIBILITY OF
Application No. 34392/97
by Burkhard LEO
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 3 December 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the 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 30 August 1996 by
Burkhard LEO against Germany and registered on 8 January 1997 under
file No. 34392/97;
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 applicant, born in 1952, is a German national and resident
in Kiel. He is a lawyer by profession.
In 1984 criminal proceedings were instituted against the
applicant and others on suspicion of fraud. Further charges of fraud
as well as of swearing a false affidavit in connection with the
whereabouts his child - following divorce and transfer of the right of
custody to the child's mother - were raised in January and July 1985,
respectively.
In 1985 the Kiel District Court (Amtsgericht) committed the
applicant for trial and joined the proceedings regarding the above
charges. It fixed a date in December 1985 for the opening of the trial
hearings. The applicant having suffered a car accident, this hearing
was postponed until 12 May 1986. At that date the proceedings were
postponed sine die on account of the fact that one of the accused had
absconded.
On 22 November 1987 the District Court severed the proceedings
so far as the charges of January 1995 were concerned and conducted
trial hearings on seventeen days between 7 March and 10 June 1988. At
the close of the trial, the applicant was convicted of one count of
fraud in conjunction with having simulated a criminal offence
(Vortäuschen einer Straftat), as well as two counts of continuing acts
of fraud (fortgesetzter Betrug), one of them in conjunction with
continuing acts of unlawful coercion. A fine amounting to DEM 3,600
was imposed upon him. The Court granted him the possibility to pay the
fine, and subsequently the costs of the proceedings, in monthly
instalments of DEM 100.
Both the applicant and the Public Prosecutor's Office
(Staatsanwaltschaft) lodged appeals with the Kiel Regional Court
(Landgericht).
In the first instance proceedings regarding the remaining
charges, the Kiel District Court held trial hearings against the
applicant and three co-accused on seventy-seven days between 7 May 1990
and 10 May 1991.
On 30 September 1990 the applicant was arrested at the Frankfurt
airport on the basis of an arrest warrant issued by the District Court
on 29 September 1990. Following his successful appeal, the arrest
warrant was set aside and he was released on 19 October 1990.
On 10 May 1991 the applicant was convicted of fraud committed
jointly with other persons (gemeinschaftlicher Betrug), of continuing
acts of fraud committed jointly with other persons (fortgesetzter
gemeinschaftlicher Betrug), the latter in conjunction with incitement
to swear a false affidavit (Anstiftung zur Falschaussage), as well as
of having repeatedly raised false suspicion (falsche Verdächtigung) and
of the offence of swearing a false affidavit. The District Court fixed
a cumulative sentence of one year and three months' imprisonment. The
period of his detention on remand was to be counted towards the
sentence. The remainder of his sentence was suspended on probation.
In its judgment comprising almost 300 pages, the District Court,
having heard the applicant, the co-accused and numerous witnesses,
partly in proceedings under letters rogatory, found that the applicant,
in part together with the co-accused had become involved in the above
series of criminal offences due to problems in the context of his
divorce proceedings and due to professional and financial problems.
Again, both the applicant and the Public Prosecutor's Office
lodged appeals with the Kiel Regional Court.
On 16 September 1994 the Kiel Regional Court joined the appeal
proceedings regarding all cases.
The Regional Court, comprised of Presiding Judge B., Judge M. and
two lay assessors, conducted trial hearings on forty-six days between
30 August 1994 and 13 July 1995.
In the course of the appeal proceedings, the applicant repeatedly
challenged the judges for bias. On 17 May 1995 the Regional Court
dismissed the applicant's motions of 8 and 9 May to challenge Judge B.
for bias. The Court considered that the applicant's submissions,
namely contacts between his divorced wife and Judge B.'s wife or
Judge B.'s conversation with the Public Prosecutor on the possibility
of a discontinuation of the proceedings, did not disclose any
reasonable doubt as to Judge B.'s impartiality. Moreover, Presiding
Judge B.'s conduct of the proceedings did not justify the conclusion
that Judge B. himself was biased.
On 13 July 1995 the Regional Court amended the District Court's
judgments of 10 June 1988 and 10 May 1991 to the extent of convicting
the applicant of two counts of fraud committed jointly with other
persons, a further count of fraud committed jointly with other persons,
and a count of fraud committed jointly with other persons in
conjunction with the offence of false affidavit and incitement to swear
a false affidavit, as well as another count of swearing a false
affidavit. The Regional Court sentenced the applicant to one year's
imprisonment on probation. The remainder of the respective appeals was
dismissed.
In its judgment comprising 252 pages, the Regional Court assessed
the relevant facts on the basis of the applicant's statements and the
evidence heard in court.
As regards the applicant's repeated requests in the course of the
appeal proceedings that his prosecution be discontinued on account of
the length of the proceedings, the Regional Court referred to the case-
law of the Federal Constitutional Court (Bundesverfassungsgericht) that
an accused is entitled to a hearing within a reasonable time, pursuant
to Article 2 of the German Basic Law (Grundgesetz) and the rule of law
(Rechtsstaatsprinzip). In very exceptional cases, an excessive length
of proceedings could constitute a procedural bar. However, according
to the case-law of the Federal Court of Justice (Bundesgerichtshof),
an excessive length of the proceedings could, as a rule, be taken into
account when fixing the sentence.
In applying these criteria, the Regional Court listed the steps
taken in the proceedings against the applicant, from the information
about the first charges in June 1984 and throughout the two sets of
first instance proceedings as well as the appeal proceedings. It
considered that, in the course of the appeal proceedings, the applicant
had made use of his defence rights with a view to delaying the
proceedings and forcing their discontinuation. On the whole, the
proceedings had lasted very long, and, considering the burden upon the
applicant, too long. Thus, the judicial authorities had to be held
responsible for delays amounting to altogether six years. Weighing all
the circumstances, the Regional Court reached the conclusion that the
overall length was not unreasonable to such an extent that the
proceedings had to be discontinued. Rather, the Court took the
unreasonable length into account when fixing the sentences for the
various offences at issue. As regards the first of the separate
offences, namely the two counts of fraud committed jointly with other
persons, the Court, considering the seriousness of the offences and the
aggravating and mitigating circumstances relating to the applicant's
situation, fixed a fine of sixty daily rates (Tagessätze) which it
reduced by half on account of the unreasonable length of the
proceedings. The Court proceeded likewise in respect of the other
offences. When fixing the cumulative sentence, the Regional Court,
having again regard to the length of the proceedings, reduced the sum
of the above separate sentences, i.e. one year and six months'
imprisonment, to one year's imprisonment. The execution of this
sentence was suspended on probation.
On 10 May 1996 the Schleswig Holstein Court of Appeal
(Oberlandesgericht) dismissed the applicant's appeal on points of law
(Revision).
On 14 August 1996 the Federal Constitutional Court refused to
entertain the applicant's constitutional complaint (Verfassungs-
beschwerde).
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
that he did not have a hearing within a reasonable time.
2. The applicant further complains under Article 6 para. 1 of the
Convention that he did not have a fair hearing before an impartial
tribunal. In this respect he refers in particular to the contacts
between his divorced wife and the wife of the Presiding Judge B.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention about the length of the criminal proceedings against him.
Article 6 para. 1 (Art. 6-1) provides, insofar as relevant, as
follows:
"In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing within a reasonable
time by an independent and impartial tribunal."
The Commission considers that the relevant period started in 1984
when the first charges were brought against the applicant. The final
decision in the criminal proceedings as such was rendered by the
Schleswig Holstein Court of Appeal on 16 May 1996, i.e. twelve years
later. The Federal Constitutional Court rejected the applicant's
constitutional complaint on 14 August 1996.
In the present case, the question arises whether or not the
applicant can still claim to be a victim within the meaning of
Article 25 (Art. 25) of the Convention of a violation of his right to
a hearing within a reasonable time, as guaranteed by Article 6 para.
1 (Art. 6-1).
The Commission recalls that an applicant can no longer claim to
be a victim of the failure to observe the "reasonable time" requirement
in Article 6 para. 1 (Art. 6-1) if the national authorities have
acknowledged either expressly or in substance the breach of that
provision and if redress has been given (cf. Eur. Court HR, Eckle v.
Germany judgment of 15 July 1982, Series A no. 51, pp. 30-31, para.
66; No. 10232/83, Dec. 16.12.83, D.R. 35, p. 213; No. 13020/87, Dec.
13.4.88, D.R. 56 p. 264).
In the present case, the Kiel Regional Court, in its judgment of
13 July 1995, expressly acknowledged that the length of the criminal
proceedings against the applicant had exceeded a reasonable time. The
Court noted in detail that the judicial authorities were responsible
for delays amounting to six years. Moreover, in order to give redress,
the Court reduced by half the sentences fixed with regard to the
several offences at issue and also reduced by a third the cumulative
sentence.
The Commission is therefore of the opinion that the German
authorities have, in substance, acknowledged a breach of Article 6
para. 1 (Art. 6-1) of the Convention. The Commission further considers
that the mitigation of the sentence accorded on account of the length
of the proceedings is considerable and offers redress for the violation
complained of.
It follows that the applicant can no longer claim to be a victim
of a violation of his right under Article 6 para. 1 (Art. 6-1) of the
Convention to a hearing within a reasonable time.
This part of the application is, therefore, manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. As to the applicant's complaint about the alleged lack of
impartiality of the Presiding Judge B. at the Kiel Regional Court, the
Commission has had regard to the relevant criteria established in the
case-law of the Convention organs (Eur. Court HR, Hauschildt v. Denmark
judgment of 24 May 1989, Series A no. 154, p. 21, para. 46; Fey
v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12,
para. 28). The Commission, having regard to the Regional Court's
decision of 17 May 1995, finds that the applicant's submissions
concerning in particular contacts between his divorced wife and the
wife of Judge B. cannot suffice to bear out a charge of bias.
Considering the circumstances of the case as a whole, the
Commission finds no appearance of a violation of the applicant's right
to a hearing by an impartial tribunal under Article 6 para. 1
(Art. 6-1) of the Convention.
It follows that this part of the application is likewise
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy