[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF OMMER v. GERMANY (no. 1)
(Application
no. 10597/03)
JUDGMENT
STRASBOURG
13
November 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ommer v. Germany (no. 1),
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Karel
Jungwiert,
Volodymyr Butkevych,
Renate
Jaeger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 14 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10597/03) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a German national, Mr
Manfred Ommer
(“the applicant”), on 20 March 2003.
- The
applicant was initially represented by Mr B. Schreiber, a lawyer
practising in Brühl, and subsequently by Mr U. Sommer, a lawyer
practising in Köln, and also by Mr G. Widmaier, a lawyer
practising in Karlsruhe.
The German Government (“the
Government”) were represented by their Agent, Mrs A.
Wittling-Vogel, Ministerialdirigentin.
- The
applicant complained under Article 6 § 1 of the Convention that
the length of the criminal proceedings against him had been excessive
and that German law did not provide for sufficient compensation for
the damage suffered by him as a consequence of the protracted length
of the proceedings.
- On
14 November 2006 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1950 and lives in Bergisch
Gladbach, Germany. In the 1970s he participated as a sprinter in the
Olympic Games and from 1986 to 1993, he was the president of FC
Homburg, a football club playing in the German Football League.
1. Investigation proceedings
- From 1982 the applicant was the sole shareholder and
sole managing director of the DETAG investment trust corporation,
which arranged the sale of apartments.
- By a letter dated 19 February 1987, which reached the
applicant on that day, the Cologne police headquarters summoned the
applicant to question him on charges of fraud in relation with his
business activities for the DETAG corporation. Thereby the applicant
obtained knowledge of the criminal investigations instituted against
him.
- On
24 May 1988 and on 19 August 1988 the Cologne Public Prosecutor's
Office joined several different sets of proceedings concerning
charges of fraud against the applicant, which had partly been
transferred to it by other Public Prosecutor's Offices (no. 110 Js
24/88).
- In
February 1989, court orders issued in October 1988 and February 1989,
authorising the search of the applicant's home, those of four
co-defendants, of the companies led by them and of numerous banks
in Germany, were executed and many documents seized.
- In
February 1990 the police submitted to the Public Prosecutor's Office
an evaluation of the documents seized and the statements of numerous
witnesses who had been heard by way of a mailed questionnaire.
- Between
5 October 1990 and 6 December 1990 further search orders, inter
alia against the applicant and his company, were executed.
- On
27 August 1992 the Cologne police headquarters, having heard ten
witnesses since December 1990, sent back the files to the Public
Prosecutor's Office with a summary note on the results of their
investigations.
- On
28 July 1994 the Cologne Public Prosecutor's Office, having
questioned the applicant twice and following unsuccessful
negotiations with the defence with a view to discontinuing the
proceedings under Article 153a of the Code of Criminal Procedure (see
paragraph 37 below), preferred an indictment (running to 460 pages)
against the applicant with the Cologne Regional Court. It charged the
applicant, who was represented by counsel, with seventy-four cases of
aggravated fraud and attempted fraud, committed together with his
co-defendants G. and D. between September 1984 and November 1986. The
applicant, acting as the DETAG corporation's managing director, was
accused of having incited investors to buy apartments at a price far
above their market value. According to the indictment, the applicant
had obtained the investors' consent to buy the apartments by
misleading them about their true value and by orally undertaking, in
particular, to repurchase the apartments after two years at the
investors' request, a guarantee which he never intended to keep.
2. Proceedings before the Cologne Regional Court
- On
21 November 1994 the Cologne Regional Court opened the main
proceedings in respect of sixty-seven charges of aggravated fraud and
attempted fraud against the applicant, who was represented by defence
counsel throughout the proceedings.
- On
1 June, 1 September and 1 December 1995 and on 1 March 1996 the
president of the chamber of the Regional Court noted that due to two
other sets of proceedings pending before the Regional Court which had
to be granted priority as the defendants concerned were in custody,
it was not possible to fix dates for the hearing in the applicant's
case.
- On
13 June 1996 the Cologne Regional Court ordered seven experts to
submit reports on the market value of sixty-eight apartments at the
time they were bought by the investors. The expert reports were
submitted to the Regional Court between 19 July 1996 and 20 March
1997.
- On
21 March, 21 August and 21 November 1997 and on 20 February, 6
May and 24 June 1998 the president of the chamber of the Regional
Court noted that due to hearings in other proceedings which were
granted priority as the defendants concerned were in custody, in
particular the hearings in the proceedings against F. and others,
against L. and S. and against Fe., it was not possible to fix dates
for the hearing in the applicant's case.
- On
27 July 1998 the applicant requested that the proceedings against him
be discontinued on account of their excessive length, if necessary
after he had complied with a condition for discontinuance, pursuant
to Article 153a of the Code of Criminal Procedure.
- As
proposed by the Regional Court, the applicant and the Public
Prosecutor's Office subsequently entered into negotiations about
discontinuing the proceedings in exchange for the payment of a sum of
money (see Article 153a of the Code of Criminal Procedure, paragraph
37 below) which lasted until 3 December 1998. However, they were
unable to reach agreement.
- From
13 January 1999 until 30 September 1999 the Regional Court held
forty-four hearings in which it questioned forty-eight witnesses and
two experts. It stressed that in its view, the case appeared to be
suitable for discontinuance in accordance with Article 153a of the
Code of Criminal Procedure, but the prosecution and the defence were
unable to reach a settlement.
- On
21 June 1999 the applicant requested that the proceedings be
discontinued pursuant to Article 260 § 3 of the Code of Criminal
Procedure (see paragraph 38 below) because their excessive length was
an impediment to the proceedings (Verfahrenshindernis).
- On
4 October 1999 the Cologne Regional Court, having heard the parties,
discontinued the proceedings pursuant to Article 260 § 3 of the
Code of Criminal Procedure. It ordered the Treasury to bear the costs
of the proceedings and the applicant's necessary expenses pursuant to
Article 467 § 1 of the Code of Criminal Procedure (see
paragraph 39 below). The court found that the length of the
proceedings constituted a procedural impediment to their
continuation, as proceeding with them would breach Article 6 §
1 of the Convention.
- The
Regional Court found that it would not be possible to deliver a
judgment in due course and before all offences became time-barred in
November 2001. It was unclear at that stage of the proceedings
whether the applicant would have to be convicted or acquitted. Even
assuming that the applicant was found guilty of fraud, his guilt
could not be considered serious, notably because the investors who
had bought the apartments had in fact received the tax benefits they
had sought by their investment.
- Having
regard to all the circumstances of the case, the Regional Court found
that the length of the proceedings since the applicant's notification
thereof and their further expected duration was excessive and
violated the right to a hearing within a reasonable time as
guaranteed by Article 2 § 1 of the Basic Law, read in
conjunction with the rule of law, and Article 6 § 1 of the
Convention. This warranted the discontinuance of the proceedings. The
duration of the proceedings, which had lasted for more than twelve
and a half years, had been caused by structural problems at the
Cologne Public Prosecutor's Office and the Cologne Regional Court,
which were understaffed. The applicant had not caused any delays in
the proceedings. The proceedings were quite complex, but this did not
sufficiently explain their length. The ongoing proceedings imposed a
burden on the applicant because there had been several, partly
polemical, press articles about the case, so that his business
activities kept being adversely affected.
- The
Regional Court found that it was not possible to take into
consideration the excessive duration of the proceedings when fixing
the applicant's sentence, as this presupposed his conviction. The
applicant could, however, no longer be convicted, as continuing the
proceedings would breach Article 6 § 1 of the Convention.
Moreover, if the proceedings resulted in the applicant being
acquitted, it would likewise be impossible to consider the length of
the proceedings when fixing the sentence.
3. Proceedings before the Federal Court of Justice
- On
25 October 2000 the Federal Court of Justice, allowing the appeal on
points of law lodged by the Public Prosecutor's Office, quashed the
judgment of the Cologne Regional Court and remitted the case to the
Bonn Regional Court. It found that it was not in a position fully to
examine whether there was in fact a procedural impediment to the
continuation of the proceedings for failure to comply with the
reasonable time requirement.
- Having
heard the parties at an oral hearing, the Federal Court of Justice
stated that in very exceptional circumstances a violation of Article
6 § 1 of the Convention, taken in conjunction with the rule of
law, could lead to an impediment to the proceedings.
- According
to the Federal Court of Justice there had been a violation of Article
6 § 1 of the Convention in the present case. The length of the
investigation and court proceedings, which was attributable to the
organisation within the judiciary, had been excessive, and the
applicant had no responsibility for it. However, the Cologne Regional
Court had failed sufficiently to ascertain the extent of the
applicant's guilt. Without that knowledge, it was impossible for the
Federal Court of Justice to assess whether the violation of Article 6
§ 1 of the Convention was so severe that it could neither be
compensated when fixing the sentence nor by discontinuing the
proceedings pursuant to Article 153 or 153a of the Code of Criminal
Procedure (see paragraphs 36-37 below) and consequently was a
procedural impediment to continuing the proceedings. Having regard to
the contents of the case file and assuming the speedy processing of
the case by the Bonn Regional Court, it still appeared possible to
take into consideration the violation of Article 6 § 1 of the
Convention when fixing the sentence.
- In
January 2001 the applicant lodged a complaint with the Federal
Constitutional Court against this judgment (see 5. below).
4. Proceedings before the Bonn Regional Court
- On
30 November 2001 the Bonn Regional Court, having held
forty-three
hearings, acquitted the applicant. It ordered that the Treasury bear
the costs of the proceedings and the applicant's necessary expenses
pursuant to Article 467 § 1 of the Code of Criminal Procedure.
It further held that the applicant was entitled to compensation for
damage caused by the searches of his home and the seizure of his
property pursuant to the Act on Compensation for Measures of Criminal
Prosecution (see paragraphs
41-43 below).
- Having
heard ninety-four witnesses, the Bonn Regional Court found that the
applicant was not guilty of fraud, because he had not misled or
caused his staff to mislead the purchasers of apartments about their
true value or by giving a binding guarantee to repurchase the
apartments.
- On
4 February 2002 the judgment became final, the Cologne Public
Prosecutor's Office having withdrawn its appeal on points of law.
5. Proceedings before the Federal Constitutional Court
- On
11 January 2001 the applicant, represented by counsel, lodged a
complaint with the Federal Constitutional Court against the judgment
of the Federal Court of Justice. He argued in particular that
remitting the case to the Bonn Regional Court and continuing the
proceedings despite the fact that his right to be heard within a
reasonable time had been disregarded throughout the proceedings
further violated his right to a fair trial. Following the judgment of
the Bonn Regional Court, he further submitted that he had suffered
pecuniary and non-pecuniary damage caused by the excessive length of
the criminal proceedings against him despite his acquittal. German
law did not provide for adequate compensation for this.
- On
24 September 2002 the Federal Constitutional Court, having stayed the
proceedings between 22 November 2001 and 15 March 2002 at the
applicant's request awaiting the outcome of the proceedings in the
criminal courts, refused to admit the applicant's constitutional
complaint.
It argued that the complaint was inadmissible because
following his acquittal, the applicant no longer had a legitimate
interest in a finding that the judgment of the Federal Court of
Justice had violated his rights guaranteed by the Basic Law.
- The
Federal Constitutional Court found that the applicant was no longer
prejudiced by the judgment delivered by the Federal Court of Justice
as the criminal proceedings against him had been terminated by his
final acquittal. Assuming that the constitutional complaint would be
well-founded, the violation of fundamental rights caused by the
judgment of the Federal Court of Justice would not have severe
consequences for the applicant. His basic rights had notably been
breached by the duration of the proceedings until the judgment of the
Federal Court of Justice. Following this judgment, the criminal
proceedings had lasted for more than another six months, but had
ended with his acquittal and therefore his rehabilitation. Moreover,
the Federal Court of Justice had clearly stated in its judgment that
the duration of the criminal proceedings against the applicant had
breached Article 6 § 1 of the Convention. For lack of a
sufficient statement of facts by the Regional Court, that court had
only found itself not to be in a position to draw the legal
conclusion that there was a procedural impediment to continuing the
proceedings, even though it acknowledged for the first time that this
was a possible result of a breach of Article 6 § 1.
II. RELEVANT DOMESTIC LAW
1. Provisions governing the discontinuance of criminal
proceedings
- Article
153 of the Code of Criminal Procedure governs the discontinuance of
criminal investigation or court proceedings on grounds of
insignificance. According to that provision, criminal proceedings may
be discontinued if they concern an offence for which it is not
mandatory to impose a sentence of at least one year's imprisonment
(Vergehen), if the defendant's guilt would be of a minor
nature and if there was no public interest in criminal prosecution.
If the indictment has already been preferred, the court may only
discontinue the proceedings with the consent of both the Public
Prosecutor's Office and the defendant (§ 2 of the Article).
- Pursuant
to Article 153a § 1 of the Code of Criminal Procedure, the
Public Prosecutor's Office may discontinue criminal proceedings
concerning offences for which the regular minimum punishment is less
than one year's imprisonment at the investigation stage with the
defendant's consent, if the latter complies with certain conditions.
These conditions must be suitable to remove the public interest in
criminal prosecution and may not be in conflict with the severity of
the defendant's guilt. Such conditions notably entail the payment of
a sum of money to a
non-profit-making organisation or to the
Treasury. The court which has jurisdiction to open the main
proceedings must consent under certain circumstances. If the
indictment has already been preferred with that court, the latter may
discontinue the proceedings under the conditions set out in
§
1 with the consent of both the Public Prosecutor's Office and the
defendant (Article 153a § 2).
- Pursuant
to Article 260 § 3 of the Code of Criminal Procedure, the
discontinuance of the proceedings shall be pronounced in a judgment
if there is a procedural impediment to the continuation of the
proceedings.
2. Provisions governing costs, expenses and
compensation for damage caused by investigation and court proceedings
when the defendant is subsequently acquitted
a. Provisions of the Code of Criminal
Procedure
- Pursuant
to Article 467 § 1 of the Code of Criminal Procedure the costs
of the criminal proceedings and the defendant's necessary expenses
shall be borne by the Treasury if the defendant is acquitted, if the
court refuses to open the main proceedings against him or if the
proceedings against him are discontinued. According to Article 467 §
3 of the said Code, the court may decline to award the defendant's
necessary expenses against the Treasury where the defendant has
avoided conviction merely because of an impediment to the proceedings
(Verfahrenshindernis).
- Article
464a § 2 of the Code of Criminal Procedure stipulates that the
necessary expenses of a participant in the proceedings shall also
comprise compensation for an inevitable loss of time in accordance
with the provisions on compensation of witnesses (no. 1) and the fees
and expenses of a lawyer in so far as these are to be reimbursed
under Article 91 § 2 of the Code of Civil Procedure (no. 2).
Section 2 of the Act on Compensation of Witnesses and Experts (Gesetz
über die Entschädigung von Zeugen und Sachverständigen),
in its version in force between 1 January 2002 and
30 June 2004,
on the compensation payable to witnesses for their loss of earnings,
stipulates in paragraph 2, first sentence, that each hour of lost
working time shall be compensated at a rate of two to thirteen euros
(EUR). Article 91 § 2 of the Code of Civil Procedure, in its
version in force at the relevant time, stipulates in particular that
the fees and expenses of the lawyer of the successful party as fixed
by law shall be reimbursed. Before
1 July 2004, the fees and
expenses payable to a lawyer were fixed in the Federal Regulation on
Lawyers' Fees (Bundesrechtsanwaltsgebühren-ordnung –
BRAGO). Lawyer and client could, however, agree on a higher
remuneration than that payable under the said Regulation (see its
section 3).
b. Provisions of the Act on Compensation
for Measures of Criminal Prosecution
- Compensation
for damage caused by wrongful prosecution is covered by the Act on
Compensation for Measures of Criminal Prosecution (Gesetz über
die Entschädigung für Strafverfolgungsmaßnahmen).
- Pursuant
to section 2 of that Act, a defendant is notably entitled to
compensation for damage incurred by certain specified measures of
criminal prosecution if he is acquitted, if the proceedings against
him are discontinued or if the court refuses to open the main
proceedings against him. The measures of criminal prosecution for
which compensation may be granted notably comprise pre-trial
detention and searches and seizures of property.
- Section
7 § 1 of the Act on Compensation for Measures of Criminal
Prosecution stipulates that pecuniary damage incurred as a result of
the criminal prosecution measure is compensated for, as well as
non-pecuniary damage in the event of a deprivation of liberty by a
court decision. Once the finding that the Treasury is under a duty to
compensate has become final, the compensation claim must be submitted
within six months with the Public Prosecutor's Office which last was
in charge of the investigations at first instance (section 10 §
1 of the said Act).
c. Provisions of the Civil Code and the
Basic Law
- Pursuant
to Article 34 of the Basic Law, taken in conjunction with Article 839
of the Civil Code, an individual has the right to be compensated by
the State for any damage arising from a breach of official duty
committed by a public servant. These provisions are also applicable
to a breach of duty in giving judgment on an action if the breach
consists in a refusal to discharge a function or a delay in
performing it contrary to professional duty.
- Damages
are afforded to the individual concerned in accordance with Articles
249 et seq. of the Civil Code. By Article 253 of the Civil Code, in
the version in force until 31 July 2002, compensation for
non-pecuniary damage could be awarded only if it was provided for
by law. In this connection, Article 847 § 1 of the Civil Code,
which was in force until that same day, provided for non-pecuniary
compensation only in the event of physical injury, damage caused to
someone's health or deprivation of liberty. The new Article 253 §
2 of the Civil Code, as in force since
1 August 2002, which
replaced Article 847 of the Civil Code, has not introduced any
amendments relevant to the matters in issue in the instant case.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the duration of the criminal proceedings
against him had been excessive. He alleged a violation of Article 6
of the Convention, which, in so far as relevant, reads 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
Government contested that argument.
A. Admissibility
- The
Government argued that the application was incompatible ratione
personae with the provisions of the Convention (Article 35 §
3, read in conjunction with Article 34, first sentence, of the
Convention) as the applicant could no longer claim to be the victim
of a violation of Article 6.
- The
applicant contested this view. He argued that under German law he had
not been able to obtain sufficient compensation for the damage caused
by the excessive length of the proceedings against him.
- In
the Court's view, the issue whether the applicant is deprived of his
status as a victim within the meaning of Article 34 of the Convention
is closely linked to the questions raised with respect to his
complaint under Article 6 § 1 of the Convention about the length
of the proceedings.
It observes, in particular, that the question
whether an applicant was afforded adequate redress in order to remedy
a breach of the reasonable time requirement under Article 6 § 1
notably depends on the extent of that breach (see Eckle v.
Germany, judgment of 15 July 1982, Series A no. 51, p. 32, § 70;
and DZelili v. Germany, no. 65745/01, § 103, 10 November
2005).
It therefore joins this issue to the merits of the
application.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The reasonableness of the length of the proceedings
- The
applicant claimed that the length of the criminal proceedings against
him, which lasted from the moment when he was summoned by the police
in February 1987 until the Federal Constitutional Court's decision of
24 September 2002, had clearly been excessive.
- The
Government, referring to the findings of the Federal Court of Justice
in its judgement of 25 October 2000, conceded that the length of the
investigation and criminal proceedings against the applicant failed
to comply with the reasonable time requirement laid down in Article 6
§ 1.
- The
Court finds that the period to be considered started on 19 February
1987, when the applicant was officially notified by the police of the
allegation that he had committed an offence. It ended on 24 September
2002 when the Federal Constitutional Court – a complaint to
which was considered as an effective remedy to complain of excessive
length of criminal proceedings at the time the applicant lodged his
complaint (compare, inter alia, Uhl v. Germany, no.
64387/01, § 26, 10 February 2005) – took its
decision. The proceedings thus lasted for more than fifteen years and
seven months at the investigation stage and three levels of
jurisdiction, including one remittal.
- The
Court, having regard to the criteria established in its case-law (see
Frydlender v. France [GC], no. 30979/96, § 43, ECHR
2000-VII), finds that the – quite complex – proceedings
against the applicant have been unreasonably delayed at the
investigation stage (duration of seven and a half years) and by the
Cologne Regional Court, which started hearing the case only some four
years after having opened the main proceedings.
These
considerable delays were not attributable to the applicant, whose
business activities were adversely affected by the ongoing
proceedings, but to the Cologne investigation authorities and
Regional Court, which were understaffed.
- Accordingly,
the Court agrees not only that the applicant's case was not heard
within a reasonable time within the meaning of Article 6 § 1 of
the Convention, it finds the proceedings' length plainly excessive.
2. Loss of victim status
a. The parties' submissions
i. The Government
- In
the Government's view, the applicant could, however, no longer claim
to be the victim of a violation of Article 6 § 1. Both the
Federal Court of Justice and the Federal Constitutional Court had
expressly found that the length of the proceedings had violated that
Article.
- The
Government further argued that the applicant had obtained adequate
redress for this breach of the Convention. Firstly, as ordered in the
Bonn Regional Court's judgment of 30 November 2001, the Treasury not
only had to bear the costs of the proceedings, but also the
applicant's necessary expenses pursuant to Article 467 § 1 of
the Code of Criminal Procedure (see paragraph 39 above). In the
present case, the applicant had received to date a total of EUR
7,292.75 plus interest reimbursing his necessary expenses. The latter
comprised, in particular, the fees payable according to the Federal
Regulation on Lawyers' Fees and the expenses of the acquitted
person's defence counsel as well as the acquitted person's loss of
earnings and travel expenses as a result of summons to appear before
the investigation authorities and the courts. It was adequate to
reimburse only the counsel's fees as fixed by the said Regulation,
and not the higher fees actually paid by a client in accordance with
a fees agreement.
- Secondly,
it was equally adequate to reimburse a maximum rate of EUR 13 per
hour of lost working time (see Article 464a § 2 no. 1 of the
Code of Criminal Procedure, read in conjunction with section 2 §
2 of the Act on Compensation of Witnesses and Experts, see paragraph
40 above). Even though this might not cover the actual loss of
earnings of persons with higher incomes, it was the civic duty of
every citizen to make himself available in criminal proceedings if
accused.
- Thirdly,
in the Government's submission, the applicant had obtained redress in
that, in its judgment of 30 November 2001, the Bonn Regional Court
had acquitted him.
- Fourthly,
the Government argued that the applicant had failed to assert further
claims he had against the Treasury. As regards pecuniary damage
caused by the searches of his home and the seizure of his private
property, the Bonn Regional Court, in its judgment of 30 November
2001, had admitted such a claim on the merits. Despite this, the
applicant had not lodged a request for compensation under sections 2,
7 and 10 § 1, first sentence, of the Act on Compensation for
Measures of Criminal Prosecution (see paragraphs 41-43 above) within
the prescribed time-limit. Furthermore, he had failed to bring
official liability proceedings pursuant to Article 839 of the Civil
Code, read in conjunction with Article 34 of the Basic Law
(see
paragraphs 44-45 above), against the Federal State concerned before
his claim had probably become time-barred. Thereby, he could have
obtained compensation for pecuniary damage, such as loss of earnings,
which he proved to have been caused by the courts' failure to
adjudicate within a reasonable time, even if this failure had been
caused by a lack of sufficient staff. Moreover, the applicant had
failed sufficiently to substantiate that he had suffered
non-pecuniary damage. The applicant's failure to avail himself of the
remedies at his disposal in order to obtain redress could not prevent
him from losing his victim status.
ii. The applicant
- The
applicant argued that he had not lost his status as a victim of a
violation of Article 6. He accepted that none of the German courts
dealing with his case had disputed that the duration of the
proceedings against him had been excessive, but claimed that they had
failed to set out in detail the delays caused by the investigation
authorities and courts.
- Moreover,
in the applicant's submission, he had not obtained sufficient
compensation for the pecuniary and non-pecuniary damage suffered by
him as a consequence of the excessive length of the proceedings.
German legislation and the domestic courts' case-law did not provide
for remedies in order to obtain such compensation. As regards,
firstly, the reimbursement of his necessary expenses pursuant to
Article 467 of the Code of Criminal Procedure, the applicant claimed
that the fees he had actually paid to counsel had not been
reimbursed. He had only received the amounts which would have been
due according to the Federal Regulation on Lawyers' Fees. However,
lawyers and clients were not bound to this Regulation and, in
practice, often agreed on considerably higher fees.
- Secondly,
German legislation and practice did not allow for an adequate
compensation for his loss of earnings. He had passed several thousand
hours studying the voluminous case files, preparing his defence and
attending the court hearings. However, his claim for reimbursement of
his actual loss of earnings had been dismissed as he had failed to
prove that he had not been able to conduct his business despite the
time lost. Moreover, the maximum rate of compensation of some EUR 13
per hour did not at all reflect his earnings of several thousand
euros per hour at the relevant time. In any event, these amounts had
only been paid because of his acquittal, and not because of the
protracted length of the proceedings.
- Thirdly,
in view of the fact that he had been ruined both financially and as a
person as a result of the proceedings, the applicant considered it
cynical to consider that he had obtained sufficient redress merely by
the fact that he had been acquitted at last.
- With
respect to the Government's fourth argument, the applicant conceded
that he had not lodged a request for compensation under the
Act
on Compensation for Measures of Criminal Prosecution. However, this
Act only provided for compensation for pecuniary damage caused by the
searches of his home and did not cover compensation for any damage
caused by the duration of proceedings. Likewise, it would have been
to no avail for him to bring official liability proceedings under
Article 839 of the Civil Code, read in conjunction with Article 34 of
the Basic Law in order to obtain such compensation. He would not have
been able to prove that the delays in the proceedings had been caused
by a particular person's fault.
b. The Court's assessment
i. General principles
- 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, cited above, pp.
30-31, § 66; Amuur v. France, judgment of 25 June 1996,
Reports of Judgments and Decisions 1996-III, p. 846, §
36; 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, cited above, pp. 31, 38, §§
67, 87; Beck v. Norway, no. 26390/95, §§ 27-29, 26
June 2001; DZelili, cited above, §§ 100-104; and
Scordino v. Italy (no. 1) [GC], no. 36813/97, §
186, ECHR 2006-V).
The discontinuance of the criminal proceedings
on account of their excessive length may also be capable, depending
on the duration in question, adequately to redress a breach of
Article 6 § 1 (see, inter alia, Eckle, cited
above, p. 39, § 94; and Sprotte v. Germany (dec.), no.
72438/01, 17 November 2005).
- Otherwise,
the question whether an applicant's status as a victim has been
removed following the payment at domestic level of a sum of money by
way of compensation for the damage caused by the protracted length of
proceedings will depend, in particular, on whether the redress thus
afforded was adequate and sufficient having regard to the awards of
just satisfaction as provided for under Article 41 of the Convention
(see Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20
March 2003; Normann v. Denmark (dec.), no. 44704/98, 14 June
2001; and Scordino, cited above, §§ 181, 202).
While there is no requirement under the existing case-law that the
domestic authorities should award the same sum by way of compensation
as the Court would be likely to award under Article 41 of the
Convention, the level of just satisfaction granted at national level
must nevertheless not be manifestly inadequate in the particular
circumstances of the case (see Horváthová v.
Slovakia, no. 74456/01, § 32, 17 May 2005, and
Scordino, cited above, §§ 202 et seq.). Thus, for
example, exempting the person concerned from paying legal costs such
as fees to counsel, which he would otherwise have had to pay, because
of the protracted length of the proceedings may afford redress which
was adequate and sufficient, having regard to just satisfaction as
provided for under Article 41 of the Convention (see Normann,
cited above; Ohlen v. Denmark (striking out), no. 63214/00, §§
29-31, 24 February 2005; and Hansen and Others v. Denmark
(dec.), no. 26194/03, 29 May 2006).
ii. Application of these principles to the
present case
- The
Court notes that both the Cologne Regional Court, in its judgment of
4 October 1999, and the Federal Court of Justice, in its judgment of
25 October 2000, expressly stated that the length of the
investigation and court proceedings against the applicant, which was
attributable to the national authorities, failed to comply with the
“reasonable time” requirement laid down in Article 6 §
1. In its decision of
24 September 2002, the Federal
Constitutional Court confirmed this finding. The Court is therefore
satisfied that the national authorities expressly acknowledged the
breach of the Convention at issue.
- As
to the question whether the applicant was granted adequate redress
for the excessive length of the criminal proceedings against him, the
Court observes at the outset that the domestic courts in the present
case were not in a position to grant him such redress by reducing his
sentence because they acquitted him of the offences he was charged
with. Moreover, the judgment of the Cologne Regional Court
discontinuing the proceedings on account of their excessive length
was subsequently quashed by the Federal Court of Justice. The Court
therefore has to examine whether the applicant, as claimed by the
Government, has otherwise received adequate and sufficient reparation
at domestic level for the damage caused by the protracted length of
the proceedings, having regard to the awards of just satisfaction as
provided for under Article 41 of the Convention.
- The
Court notes that the Government argued, firstly, that the applicant
had obtained redress for the breach of the reasonable time
requirement in that the Bonn Regional Court had ordered the
reimbursement of fees payable to his defence counsel. The applicant
had received some EUR 7,300 plus interest accordingly (covering all
necessary expenses).
The Court observes that the payment of these
fees was ordered by the Regional Court under Articles 467 § 1
and 464a § 2 no. 2 of the Code of Criminal Procedure, read in
conjunction with Article 91 § 2 of the Code of Civil Procedure
and the Federal Regulation on Lawyers' Fees
(see paragraphs 39-40
above). The parties agreed that the applicant had been reimbursed
only the fees which would have been payable to his counsel according
to these provisions, in particular the Federal Regulation on Lawyers'
Fees, and not the considerably higher fees he claimed to have paid to
his counsel in accordance with a fees agreement. However, Article 467
§ 1 of the Code of Criminal Procedure only provides for the
reimbursement of a defendant's necessary expenses, such as lawyer's
fees, as a result of his acquittal. The Court is therefore convinced
that the reimbursement of fees to the applicant was a mere
consequence of his acquittal, which itself was pronounced for factual
reasons unrelated to the length of proceedings.
The applicant
thus was not granted redress in having been exempted from paying any
fees, which he would otherwise have been obliged to pay, only because
of the excessive duration of the proceedings against him (compare
Normann, cited above, and, by contrast, Hansen and Others,
cited above, as well as Ohlen, cited above, §§
28-31).
- The
Government submitted, secondly, that the reimbursement of the
applicant's loss of earnings at a maximum rate of EUR 13 per hour of
lost working time had provided the applicant with redress for the
breach of Article 6 § 1 of the Convention. The Court notes that
it is uncontested between the parties that this compensation was paid
in accordance with Articles 467 § 1 and 464a § 2 no. 1
of the Code of Criminal Procedure, read in conjunction with section 2
§ 2 of the Act on Compensation of Witnesses and Experts (see
paragraphs 39-40 above). Thus, these payments, like the fees
reimbursed, were equally only a consequence of the applicant's
acquittal and did not provide him with redress for the protracted
length of the proceedings against him.
- The
Court further notes that the Government claimed, thirdly, that the
applicant had obtained redress in that the Bonn Regional Court had
acquitted him. However, as found above (at paragraph 72), the
applicant was acquitted because he was found not guilty of fraud,
that is, for reasons wholly unrelated to the excessive length of the
proceedings. Therefore, his acquittal did not affect his status as a
victim of a violation of Article 6 either.
- The
Government argued, fourthly, that the applicant lost his status as a
victim of a violation of Article 6 § 1 because he failed to
avail himself of further remedies at his disposal to redress the
breach of the Convention.
He should both have made a request for
compensation under the Act on Compensation for Measures of Criminal
Prosecution and should also have brought a compensation claim against
the Federal State concerned in official liability proceedings. The
Court finds in this respect that for the question whether the
applicant lost his status as a victim of a violation of Article 6, it
is, however, decisive whether he actually received adequate
compensation for the damage caused by the excessive length of the
proceedings as such (compare, for instance, Grässer v.
Germany, no. 66491/01, § 49,
5 October 2006), which is
not the case here. In any event, by lodging a request for
compensation under sections 2 and 7 § 1 of the Act on
Compensation for Measures of Criminal Prosecution (see paragraphs
41-43 above), the applicant could only have obtained compensation for
pecuniary damage incurred as a result of searches and seizures of his
property, and this only because he was subsequently acquitted. Thus,
this remedy, again, was not capable of affording him redress for the
protracted length of the proceedings. As regards official liability
proceedings against the Federal State concerned (see paragraphs 44-45
above), the Court refers to its findings in its Sürmeli
judgment, according to which such proceedings could not be considered
a remedy capable of affording adequate redress for the length of
civil proceedings (see Sürmeli v. Germany [GC], no.
75529/01, §§ 113-114, ECHR 2006-VIII; and also Grässer,
cited above, §§ 49-50; and Herbst v. Germany, no.
20027/02, §§ 67-68, 11 January 2007). In particular,
the relevant courts would not be able to make any award in respect of
non-pecuniary damage, whereas in cases concerning the length of
civil proceedings the applicants above all sustain damage under that
head
(see Sürmeli, cited above, §§ 113-114;
and also Hartman v. Czech Republic, no. 53341/99, §
68, ECHR 2003-VIII; and Scordino, cited above, § 204).
The Court considers that these findings apply, mutatis mutandis,
to the length of criminal proceedings in cases such as the present
one, in which redress shall be granted by the payment of
compensation. The Court further notes that the Government have not
adduced any fresh reasons or decisions of domestic courts which would
justify departing from the findings made in the above-mentioned
judgments.
- In
view of the foregoing, the Court concludes that the applicant has not
lost his status as a victim of a breach of the reasonable time
requirement for the purposes of Article 34 of the Convention.
Accordingly, the Court rejects the Government's preliminary objection
to that effect and finds that there has been a violation of Article 6
§ 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed compensation for pecuniary and
non-pecuniary
damage. As regards pecuniary damage, he alleged that the length of
the proceedings, which had damaged his reputation and had
continuously made him lose customers, staff members and the
cooperation of several banks, had caused considerable losses of
profits and the insolvency, in 2002, of his firm, the DETAG
corporation. Without submitting any documentary evidence, the
applicant argued that it was impossible to calculate the exact amount
of the enormous pecuniary damage caused. As the DETAG had made
profits amounting to more than seven million Deutschmarks in 1986, at
the beginning of the investigation proceedings against him, he
estimated that the damage incurred amounted to seven million
Deutschmarks per year which he would have earned otherwise. He had
thus suffered losses of earnings of several thousand Deutschmarks per
hour.
- As
regards non-pecuniary damage, the applicant claimed that he had been
ruined financially and his reputation had been irretrievably damaged
both in the professional and the private sphere. He had been
subjected to immense psychological pressure by the excessive duration
of the unjustified criminal proceedings against him. Moreover, as he
was a well-known personality in Germany and due to arrangements made
by the prosecution, the criminal proceedings against him had
constantly been covered by the media, without him having had an
opportunity to be rehabilitated speedily in the court proceedings. He
left it to the Court to estimate the total damage caused and to fix
an appropriate amount.
- The
Government stressed that the applicant had failed to prove that there
was a causal link between the length of the proceedings and any
losses of profit or the insolvency of the DETAG corporation. It was
mere speculation that damage caused to his reputation by the
proceedings had caused his financial ruin. Moreover, the applicant
had failed to substantiate that he had suffered losses of earnings of
several thousand Deutschmarks per hour and that he had suffered
non-pecuniary damage.
- As
regards the applicant's claim for reimbursement of pecuniary damage,
the Court does not exclude that the length of the criminal
proceedings against the applicant on charges of fraud, which were
related to his business activities for the DETAG corporation and
ended with his acquittal, caused the applicant losses of profit which
he would not have suffered had the proceedings been terminated
earlier with the same outcome. However, having regard to the material
before it, the Court is unable to assess at least approximately the
amount of damage suffered by the applicant and finds that it cannot
speculate as to this amount. Accordingly, no award can be made to the
applicant under this head.
- With
regard to non-pecuniary damage, the Court considers that the
applicant must have suffered distress from the plainly excessive
length of the criminal proceedings resulting in his acquittal.
Moreover, he must be considered to have borne a particular burden
because of the proceedings instituted against him. It notes in this
connection that the Cologne Regional Court acknowledged that there
had been several, partly polemical press articles about his case, so
that his business activities kept being adversely affected (see
paragraph 24 above). In the light of the foregoing, the Court, making
its assessment on an equitable basis, awards the applicant EUR 15,000
under this head, plus any tax that may be chargeable.
B. Costs and expenses
- Without
submitting any documentary evidence relating to his claim, the
applicant further alleged that in the proceedings before the domestic
courts, he had paid more than EUR 500,000 in fees to one of his
counsels, based on fee agreements of EUR 100 to EUR 250 per working
hour and EUR 2,500 per hearing day.
- The
Government stressed that only reasonable costs for mandating a
lawyer, which were caused not by the proceedings as such, but only by
their length, could be reimbursed and that the applicant failed to
substantiate any of the fees he had paid to his defence counsel.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. Even though the applicant failed to
substantiate the exact amount of costs and expenses caused only by
the protracted length of the proceedings, the Court notes that the
applicant, represented by counsel, has brought motions and
participated in negotiations aimed at discontinuing the proceedings
on account of their length and has lodged a constitutional complaint
complaining about the excessive length of the proceedings. Moreover,
the Court accepts that in length-of-proceedings cases the protracted
examination of a case beyond a “reasonable time” involves
an increase in the applicant's costs (see Bouilly v. France
(no. 1), no. 38952/97, § 33, 7 December 1999; and
Sürmeli, cited above, § 148). The Court, having
regard to the information in its possession and the above criteria,
thus considers it reasonable to award the sum of EUR 5,000, which
includes VAT, for costs and expenses in the domestic proceedings,
plus any tax that may be chargeable to the applicant. As the
applicant failed to submit a claim for costs and expenses incurred in
the proceedings before this Court, the Court does not make an award
under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join to the merits the Government's
preliminary objection that the applicant has lost his victim status,
but rejects it after an examination on the merits;
- Declares the application admissible;
- Holds that there has been a violation of Article
6 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 15,000 (fifteen
thousand euros) in respect of non-pecuniary damage and EUR 5,000
(five thousand euros) in respect of costs and expenses, plus any tax
that may be chargeable to the applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
