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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> ECKLE v. GERMANY - 8130/78 [1982] ECHR 4 (15 July 1982)
URL: http://www.bailii.org/eu/cases/ECHR/1982/4.html
Cite as: [1982] ECHR 4, (1982) 5 EHRR 1, ECLI:CE:ECHR:1983:0621JUD000813078, CE:ECHR:1983:0621JUD000813078, [1982] 5 EHRR 1, 5 EHRR 1, (1983) 5 EHRR 1
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In the Eckle case,
The European Court of Human Rights, sitting , in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr. R. RYSSDAL, President,
Mr. THÓR VILHJÁLMSSON,
Mr. W. GANSHOF VAN DER MEERSCH,
Mr. D. EVRIGENIS,
Mr. J. PINHEIRO FARINHA,
Mr. L.-E. PETTITI,
Mr. R. BERNHARDT,
and also Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy
Registrar,
Having deliberated in private on 23 and 24 March and on
23 June 1982,
Delivers the following judgment which was adopted on the
last-mentioned date:
PROCEDURE
1. The Eckle case was referred to the Court by the European
Commission of Human Rights ("the Commission"). The case originated
in an application (no. 8130/78) against the Federal Republic of Germany
lodged with the Commission on 27 December 1977 under Article 25
(art. 25) of the Convention by two German nationals, Mr. Hans Eckle
and his wife, Marianne.
2. The Commission's request was lodged with the registry on
18 May 1981, within the period of three months laid down by
Articles 32 par. 1 and 47 (art. 32-1, art. 47). It refers to
Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby
the Federal Republic of Germany recognised the Court's jurisdiction as
compulsory (Article 46) (art. 46). Its purpose is to obtain a
judgment on whether or not the facts of the case reveal a breach by
the respondent State of its obligations under Article 6 par. 1
(art. 6-1).
3. The Chamber of seven judges to be constituted included, as ex
officio members, Mr. R. Bernhardt, the elected judge of German
nationality (Article 43 of the Convention) (art. 43), and
Mr. G. Wiarda, President of the Court (Rule 21 par. 3 (b) of the Rules
of Court). On 30 May 1981, the President drew by lot, in the presence
of the Registrar, the names of the five other members, namely
Mr. Thór Vilhjálmsson, Mr. W. Ganshof van der Meersch,
Mr. D. Evrigenis, Mr. J. Pinheiro Farinha and Mr. L.-E. Pettiti
(Article 43 in fine of the Convention and Rule 21 par. 4) (art. 43).
4. Mr. Wiarda assumed the office of President of the Chamber
(Rule 21 par. 5) until 17 December 1981 when he exempted himself from
sitting (Rule 24 par. 4). He was replaced by Mr. Ryssdal,
Vice-President of the Court (Rule 21 par. 3 (b) and 5).
5. Through the Registrar, the President ascertained the views of the
Agent of the Government and the Delegate of the Commission regarding
the procedure to be followed. On 15 June 1981, he directed that the
Agent should have until 30 November to file a memorial and that the
Delegate of the Commission should be entitled to file a memorial in
reply within two months from the date of transmission of the
Government's memorial to him by the Registrar.
The Government's memorial was received at the registry on
2 December. On 3 February 1982, the Secretary to the Commission
advised the Registrar that the Delegate would present his own
observations at the hearings, and forwarded to him the observations
of the applicants' lawyer on the Government's memorial.
6. After consulting, through the Deputy Registrar, the Agent of the
Government and the Delegate of the Commission, the President
directed on 9 February that the hearings should open on 22 March.
7. On 15 and 19 March, acting on the instructions of the President,
the Registrar asked the representatives to produce several
documents; those documents were received at the registry on 19 and
22 March.
8. The hearings were held in public at the Human Rights Building,
Strasbourg, on 22 March. Immediately before they opened, the Chamber
held a preparatory meeting at which it gave leave to the Agent and
advocates of the Government and to the person assisting the Delegate
of the Commission to use the German Language (Rule 27 par. 2 and 3).
There appeared before the Court:
- for the Government
Mrs. I. Maier, Ministerialdirigentin at the Federal
Ministry of Justice, Agent,
Mr. K.-R. Winkler, Oberstaatsanwalt at the Ministry of Justice
of the Land of Rhineland-Palatinate,
Mr. A. Ring, Oberstaatsanwalt at the public prosecutor's office
attached to the Trier Regional Court,
Mr. M. Willems, Erster Staatsanwalt at the public prosecutor's
office attached to the Cologne Regional Court,
Mr. B. Weckauf, Wirtschaftsreferent at the public prosecutor's
office attached to the Cologne Regional Court,
Mr. K. Kemper, Regierungsdirektor at the Federal Ministry of
Justice, Advisers;
- for the Commission
Mr. J. A. Frowein, Delegate,
Mr. T. Vogler, Professor at the University
of Giessen, the applicant's lawyer before the Commission,
assisting the Delegate (Rule 29 par. 1, second sentence,
of the Rules of Court).
The Court heard addresses by Mrs. Maier for the Government and by
Mr. Frowein and Mr. Vogler for the Commission, as well as their
replies to its questions. The Government submitted several documents
during the hearings; on 30 March, they supplemented their answer to
one of the questions put at the hearings and filed some further
documents.
THE FACTS
9. In 1952 Mr. Hans Eckle, who was born in 1926, founded the
building firm of "Hans Eckle, timber, steel and building
materials" at Püttlingen (Saarland), and worked there with his
wife, Marianne. He subsequently set up several branches in other
places and, in particular, a branch at Schweich, near Trier, in
1958, which was transferred shortly afterwards to Wittlich, and then
in 1961 an office in Cologne. In 1962 he was employing about
120 people.
The firm's business consisted in supplying materials and, later,
building sites on credit for people who wanted to build but had few
financial resources. Such a system, which the applicant himself
called the "Eckle system", had not hitherto been used in the
building materials trade.
He covered his financial needs - from 1962 at least - by loans from
individuals, who were offered mortgages as security (Grundschulden).
In 1965, however, he began to encounter difficulties in this regard
and towards the middle of the following year he ceased payment to
his creditors of the sums due to them. The overall total of money he
owed amounted at the time to about ten million Marks.
10. The trade practices of the applicants from 1959 to 1967 were the
subject of three separate sets of prosecutions in Trier, Saarbrücken
and Cologne. The first and last of these are in issue in the instant
case : the applicants complain that their duration exceeded the
"reasonable time" referred to in Article 6 par. 1 (art. 6-1) of the
Convention.
In a case of this kind, it is necessary to set out in detail each
stage of the impugned proceedings.
I. The Trier proceedings
1. From the opening of a preliminary investigation to the final
preferment of the "bill of indictment" (November 1959 -
15 March 1968)
10. Acting on a complaint lodged on 28 October 1959 by a bank at
Wittlich, the public prosecutor's office began, in November 1959, a
preliminary investigation (Ermittlungsverfahren) in respect of
Mr. Eckle. On 22 February 1960, after it had obtained information
from the Trier Bezirksregierung as to the existence of maximum prices
in the building materials trade and without having questioned either
the applicants or any witnesses, the prosecutor's office stopped the
investigation. Examination of the complaint was resumed with a fresh
preliminary investigation prompted by the receipt in mid-August of a
letter from the Trier Chamber of Industry and Commerce advising the
public prosecutor that Mr. Eckle was promising to supply his clients
with building materials "at average market prices" (handelsübliche
Preise) whereas his prices were in fact 25 per cent higher.
In September, the investigation was suspected pending the outcome of
a civil action brought against Mr. Eckle by one of his customers, in
which the concept of "average market prices" used by Mr. Eckle in
his contracts would have to be clarified. These civil proceedings
were concluded on 30 October 1962 with a judgment of the Koblenz
Court of Appeal (Oberlandesgericht) holding that the applicant had
charged prices higher than the average market prices, contrary to the
commitments he had entered into with his customers.
12. Forty witnesses were interviewed between 1960 and 1962, and
thirty-six witnesses in 1963.
In 1964, the competent authorities held hearings of 133 witnesses,
15 of them outside the Land of Rhineland-Palatinate. The same year
the applicant's business premises were searched and business records
(Geschäftsunterlagen) seized. These searches took place firstly on
4 March on an application from the Saarbrücken public prosecutor's
office but in the presence of two officials from Trier, and
subsequently on 7 October on an application from the Trier public
prosecutor's office which, on 8 and 9 October, questioned Mrs. Eckle
for the first time.
In 1965, 325 witnesses were heard, 106 of them outside the Land.
13. One of the twelve public prosecutors (Staatasanwalt) at Trier,
who was in charge of the investigation, was relieved of his other
duties in January 1965 in order to allow him to devote himself
entirely to the Eckle case. At the instance of the Minister of
Justice of the Land, a special commission of five officers from the
criminal police began assisting the public prosecutor from this date
onwards so that the investigation could be intensified. Previously,
as from April 1963, a member of the criminal police had been dealing
specifically with the case.
14. On 9 September 1965, the public prosecutor's office ordered the
closure of the investigation, during which according to undisputed
information provided by the Government - 540 witnesses had testified
and nearly 3,000 documents - extracts from land registers
(Grundbücher), contracts, bills, drafts, etc. - had been examined.
The prosecutor's office had made up 37 main files (Hauptakten) and
300 subsidiary files (Nebenakten), to which had been added 120 files
relating to civil suits.
15. On 9 September likewise, the public prosecutor's office informed
the applicants and two former female employees of the Eckle firm that
it intended to "indict" them. They were requested to give notice
within two weeks if they wished to have, before their committal for
trial, a "final hearing" by the public prosecutor's office
(Schlussgehör) under Article 169 b of the Code of Criminal Procedure
(in force until 31 December 1974).
On 20 September, two counsel for Mr. Eckle asked to be allowed to
inspect the file before replying.
After a conference with them on 12 October, the public prosecutor's
office notified them on 3 November that the file would be available
to them at the secretariat until 20 November.
The legal advisers acting for Mrs. Eckle and for the two employees
did not respond. Accordingly, counsel were assigned to them
officially but were replaced in December 1965 and January 1966 by
counsel instructed by the parties themselves.
In mid-December 1965, the public prosecutor's office sent
Mr. Eckle's legal representatives a copy of the main sections
of the file, as had been agreed a month earlier, and gave them until
2 February 1966 to decide whether or not they wanted a "final hearing".
A further counsel appeared for Mr. Eckle on 1 February 1966, and
then a fourth. They too asked for an opportunity to consult the file
and for copies of certain documents in the file; in mid-March, they
were given a deadline for stating whether they were requesting a
"final hearing".
Between 13 and 15 March, the seven counsel applied for a "final
hearing" and for the original file to be made available to each of
them beforehand for a period of six months. However, they withdrew
their requests on 19 April and 9 May, respectively.
16. Once proceedings relating to the "final hearing" had thus been
concluded, the public prosecutor's office drew up the "bill of
indictment" (Anklageschrift). Drafting of this was completed on
3 August and the typescript was sent to the First Criminal Chamber
(1. Grosse Strafkammer) of the Regional Court (Landgericht) on
26 October.
The "bill of indictment", which filled four volumes and comprised
793 pages in all, was directed against the applicants and the two
former female employees of the Eckle firm. It alleged a total of
474 offences of fraud and extortion, listed almost 500 witnesses and
mentioned more than 250 documents produced in evidence.
Proceedings had been dropped by the public prosecutor's office in
respect of 68 cases, in 61 of them pursuant to Article 154 of the
Code of Criminal Procedure. In the version in force until the end of
1978, this provision empowered the court (paragraph 2) and, until a
"bill of indictment" had been preferred, the public prosecutor
(paragraph 1) to take such a measure at any stage of the proceedings
if, in particular, the sentence liable to be passed at the end of
the proceedings was negligible in comparison with one already
finally (rechtskräftig) imposed on the accused - or which the
accused had to expect - for another offence.
17. On 23 December 1966, the public prosecutor in charge of the case
conferred with the President of the Criminal Chamber about the
duplications arising from criminal proceedings pending in Saarbrücken,
where the trial hearing was due to begin on 17 March 1967 (see
paragraph 58 below).
18. On 16 January 1967, the public prosecutor's office withdrew the
"bill of indictment" because it had learned of other possible
offences and felt that further inquiries were necessary.
On 22 August, the Cologne public prosecutor's office, which had
openend a preliminary investigation in respect of Mr. Eckle on
21 March (see paragraph 37 below), stated its willingness to deal
with the new cases which the Trier public prosecutor's office had
begun to inquire into. As a result, the Trier public prosecutor's
office transferred these cases to Cologne on 15 March 1968 and on the
same day preferred the "bill of indictment" - unchanged in any way -
for a second time.
Between 16 January 1967 and 8 February 1968, 234 fresh cases, of
which 217 concerned the Saarbrücken and Trier public prosecutor's
offices, had been examined.
2. From the final preferment of the "bill of indictment" to the
beginning of the trial (Hauptverfahren) (15 March 1968 -
28 January 1969)
19. Between 26 March and 25 May 1968, the President of the First
Criminal Chamber of the Regional Court took several steps to ensure
that the accused were represented; on the last-mentioned of these
dates, the Regional Court assigned to them four officially appointed
defence counsel.
On 30 May, the President drew the attention of the public
prosecutor's office to the fact that it had not yet offered the
accused a "final hearing" in respect of the new cases. The
prosecutor's offfice replied on 11 June, pointing out that these
cases had been transferred to Cologne (see paragraph 18 above).
On 2 July, the Regional Court asked to be sent the "bill of
indictment" drawn up by the Saarbrücken public prosecutor's office
(see paragraph 58 below): the Court was examining whether the
numerous offences alleged against the applicants amounted to
continuous conduct which had to be regarded as a single offence, in
which event the prior conviction at Saarbrücken would preclude any
further conviction. Three days later the Saaurbrücken public
prosecutor's office transmitted to the Regional Court a copy of the
judgment of 17 October 1967 (see paragraph 58 below) and informed it
that the files had been forwarded to the federal public prosecutor's
office (Bundesanwaltschaft) for the purposes of the proceedings for
review on a point of law (Revisionsverfahren).
In response to a request from one of the defence counsel for the
applicants that he should be given copies of the file, the Regional
Court, declared, inter alia, on 23 July 1968 that it remained to be
decided whether the above-mentioned preferment of the "bill of
indictment" could validly stand.
On 19 August, the Regional Court sought information from the
Saarbrücken public prosecutor's office about the state of the
proceedings; it stressed that it needed the "bill of indictment"
it had asked for on 2 July. This was finally sent on 4 October by
the Trier public prosecutor's office, which urged at the same time
that a decision be taken on the "bill of indictment" it had itself
preferred.
On 28 January 1969, the Regional Court admitted the latter "bill of
indictment" (Zulassung der Anklage) and ordered that the trial open
(Eröffnung des Hauptverfahrens).
3. Proceedings before the Trier Regional Court (28 January 1969 -
12 February 1973)
20. Counsel for Mrs. Eckle having asked on 14 February 1969 for the
file to be made available to him, the Regional Court replied on
18 February that copies would be forwarded to him. On the same day
counsel for Mr. Eckle called on the Regional Court to quash the
preferment of the "bill of indictment".
On 16 April, counsel for Mrs. Eckle urgently requested the Regional
Court not to take any action in the case before receiving the text
of the judgment delivered on 14 March 1969 by the Federal Court of
Justice (Bundesgerichtshof) in the matter of the Saarbrücken
proceedings (see paragraph 58 below). The judgment was transmitted
to the Regional Court on 29 April by the Saarbruüken public
prosecutor's office.
On the previous day the Regional Court had refused to issue a
warrant for the arrest of Mr. Eckle on the grounds that he was still
subject to such a warrant in the Saarbrücken proceedings.
On 28 May, it informed counsel for Mrs. Eckle, who on 16 April had
complained that eight files were missing, that these related to
proceedings which had been dropped.
On 2 April, one of the officially assigned defence lawyers had asked
the Court to revoke his appointment. In order to enable him to
continue to act, the Regional Court suggested to the public
prosecutor's office on 30 September that it should ask for proceedings
to be terminated in the case in which the lawyer in question had
previously appeared in another capacity. On 14 October, the public
prosecutor's office made a request to this effect, which the Regional
Court granted on 17 November.
21. On 14 October 1969, the public prosecutor's office applied for a
warrant for the arrest of Mr. Eckle who had been released from
detention in relation to the Saarbrücken proceedings, but the
Regional Court refused the application on 17 November. On appeal by
the public prosecutor's office, the Koblenz Court of Appeal quashed
this decision on 28 January 1970 and issued a warrant for the arrest
on the applicant.
At the request of the public prosecutor's office (6 February) the
Cologne District Court (Amtsgericht) on 12 March served the warrant
on Mr. Eckle who was in detention in Cologne in respect of the
proceedings there (see paragraph 43 below). Mr. Eckle immediately
appealed against the issuing of the warrant, but the Koblenz Court
of Appeal dismissed the appeal on 2 April.
22. On 20 April 1970, the President of the First Criminal Chamber of
the Trier Regional Court advised the relevant authority that the
magnitude of the Eckle case was preventing him from handling other
cases. On 1 June, he reached an agreement with his colleague at the
Saarbrücken Regional Court as to the dates of the hearings to be held
by their respective courts (see paragraph 58 below). On 2 July, he
fixed the date of 11 November for the opening of the trial hearing and
notified defence counsel accordingly.
On 19 October, counsel for Mrs. Eckle withdrew a statement whereby, on
19 April 1968, he had waived his claim to certain costs and expenses,
and requested the Regional Court to appoint him as defence counsel
unconditionally. Four days later, counsel for Mr. Eckle applied for a
postponement of the hearings, asserting that he dit not have enough
time to prepare the defence. The Regional Court rejected both
applications on 27 October.
On 31 October, Mr. Eckle himself asked for the hearings to be
postponed, pleading, inter alia, Article 6 par. 3 (b) (art. 6-3-b)
of the Convention, but the Regional Court refused the request on
4 November.
23. The trial opened on 11 November. Mr. Eckle immediately sought an
adjournment, and Mrs. Eckle suspension of the proceedings; the third
defendant challenged two of the judges.
The Regional Court dismissed the challenge on 17 November. On the
same day, it excluded Mr. Eckle from the courtroom on grounds of his
behaviour before the Court and, in answer to an objection raised by
one of the co-defendants, affirmed its jurisdiction in the case.
Two days later, it declined to grant a further application for an
adjournment which Mr. Eckle had made on 17 November. On the same
day, Mr. Eckle requested his release from detention; he and his wife
went so far as to refuse to give their particulars, and counsel for
the defence asked the Court for the author of the "bill of
indictment" to be called as a witness so that certain points in it
could be clarified.
The public prosecutor who had drawn up the "bill of indictment" was
heard on 26 November, after which all the defendants applied for the
proceedings to be terminated. Mr. Eckle declared himself unfit to
stand trial and sought a formal decision from the Regional Court on
this matter.
The "bill of indictment" and the prior order to commence the trial
hearing were read out in court on 3 December. Prior to that, the
Regional Court had ordered that prosecution in some of the cases
should be dropped. It also refused the defendant's applications for
the discontinuance or suspension of the proceedings. On the same
day, Mr. Eckle challenged three of the judges and asked the Regional
Court to postpone the hearing in order to give him time to obtain
the documents needed to support his challenge.
On 10 December, Mr. Eckle was once more removed from the courtroom
and sentenced to one day's imprisonment for his behaviour before the
Court: he had insulted the President and thrown paper at him. In
evidence to the Regional Court, a doctor who had examined the
applicant considered him fit to stand trial, although stating that
it would be necessary to keep the applicant under observation before
being able to give a final opinion.
The Regional Court thereupon decided that Mr. Eckle should
provisionnally be placed in a psychiatric hospital with a view to a
medical report being made on him; the hearing was adjourned sine die
on 17 December.
24. The psychiatric examination was completed on 23 January 1971 and
the medical report filed on 20 February. According to the doctor,
the applicant's behaviour during the hearings was not the result of
any illness.
Between 24 February and 26 March, hearings took place in the
Saarbrücken proceedings, which ended on the latter date with the
conviction of Mr. Eckle (see paragraph 58 below).
25. On 16 June, hearings resumed before the First Criminal Chamber of
the Trier Regional Court, the President of which had been replaced
in December 1970; the hearings continued until 17 March 1972. During
the 28 days of hearings, the Regional Court heard approximately
110 witnesses, including an expert witness, and more than
500 documents were read out.
According to the undisputed account of the proceedings furnished by
the Government, Mr. Eckle challenged judges on twenty occasions
- sometimes twice on the same days - and his wife did so some ten
times. Furthermore, he objected to the composition of the Regional
Court, challenged two experts, introduced ten motions to take
evidence (Beweisanträge), requested his release from detention ten
times and suspension of the trial four times. Five times he claimed
to be unfit to stand trial and requested a medical examination; on
five occasions the Regional Court took evidence from a doctor who,
on one of these occasions, judged the applicant to be incapable of
attending court for the rest of the day. On seven occasions
Mr. Eckle was sentenced to two or three day's imprisonment on
account of his behaviour and he was eight times removed from the
courtroom for several days, notably in the period from 18 October 1971
to 19 January 1972.
According to the same account, Mrs. Eckle for her part submitted
motions to take evidence on three occasions; she applied three times
to the Regional Court for the instructions given to the counsel
officially assigned to defend her to be withdrawn, twice for the
trial to be suspended, twice again for it to be discontinued and on
three occasions for the appointment of a second lawyer.
26. On 23 November 1971, the Regional Court terminated the
proceedings, pursuant to Article 154 of the Code of Criminal Procedure
(see paragraph 16 above), in respect of more than 400 of the counts in
the "bill of indictment".
27. On 17 March 1972, Mr. Eckle was sentenced to imprisonment for
four years and six months, his wife to a term of eighteen months and
the two co-defendants to ten and six months respectively. At the
same time, the Regional Court discharged the warrant for the arrest
of the applicant.
The Regional Court's judgment found Mr. Eckle guilty of fraud
committed jointly with other persons to the detriment of customers
in forty-two cases and to the detriment of creditors in sixteen
cases, and of attempted fraud in one case concerning a creditor.
On two charges relating to a customer and a creditor respectively he
was acquitted. The Court terminated proceedings in three cases
because they were time-barred.
Mrs. Eckle was convicted of fraud committed jointly with other
persons in thirty-nine cases to the detriment of customers and in
sixteen cases to the detriment of creditors, and of attempted fraud
in one case involving a creditor. The Court acquitted her on the
same two counts as her husband and terminated proceedings in six
cases, including the three cases that also concerned her husband.
According to the findings in the judgment, the conclusion of the
illegal contracts dated back to 1959-1960 in respect of the
customers and 1962-1964 in respect of the creditors.
When deciding the sentences the Regional Court took into account,
inter alia, "to the advantage of all the defendants", "the
inordinate length of time during which they had been exposed to the
drawbacks and unpleasantness of the investigation and trial
proceedings, something which was not wholly their own fault".
The judgment - which ran to 236 pages - was served on the applicants
on 12 February 1973, that is a little less than eleven months after
its delivery.
28. Whilst the trial hearing was continuing, an auxiliary chamber
(Hilfskammer) specially set up to relieve the First Criminal Chamber
dealt with all the other cases allocated to the latter.
4. Proceedings for review on a point of law (Revisionsverfahren)
(February 1973 - 11 February 1976)
29. The four persons convicted petitioned for review on a point of
law (Revision). In this connection, between 27 February and
8 March 1973 Mr. and Mrs. Eckle submitted several memorials to the
Federal Court of Justice, alleging various errors in law as well as
procedural irregularities.
After the counter-memorial by the Trier public prosecutor's office
had been drafted on 31 October, the file was sent to the federal
public prosecutor's office on 28 November.
30. On 4 February 1974, the federal public prosecutor's office
noticed that it was not clear from the file how eight of the cases
heard by the Regional Court had been disposed of.
When consulted on this, the Trier public prosecutor's office pointed
out that most of the obscurities arose from inaccuracies in the
minutes of the hearings, while in two cases the failure to cease
prosecution was due to inadvertence. The matter was referred to the
Trier Regional Court, which decided on 22 February and 4 March to
rectify the minutes and terminate the proceedings relating to the
two cases in question. On 6 March, the Trier public prosecutor's
office returned the file, together with a supplementary report, to
the federal public prosecutor's office and at the latter's request
also forwarded the "bill of indictment" of 19 March.
31. On 1 August 1974, the federal public prosecutor's office
requested the Trier public prosecutor's office to reply in writing to
the applicant's objections to the composition of the Regional Court
and, in particular, to produce the official statements of the judges
concerned and the charts showing the allocation of business in 1971.
After taking - between September and December 1974 - statements from
eleven judges (some of whom were no longer in Trier), the public
prosecutor's office sent them to the federal public prosecutor's
office on 29 January 1975 together with comments. On 21 February, it
transmitted some further documents which the federal public
prosecutor's office had asked for on 4 February.
32. On 7 April 1975, the applicant's new lawyer applied for the
proceedings to be dropped as being time-barred. On 24 April, the
member of the federal public prosecutor's office dealing with the
case requested the President of the Second Devision (Senat) of the
Federal Court of Justice to set down a date for the opening of the
hearing: in his submission, the proceedings were not time-barred.
On 2 December, the President directed that the hearing should be held
on 11 February 1976.
Mrs. Eckle's new defence counsel submitted supplementary written
pleadings on 26 February 1976; and on 4 February, one of the two
co-defendants withdrew her petition for review on a point of law.
33. Following the hearing on 11 February, the Federal Court of
Justice dismissed the petitions on 19 February.
At the end of the judgment, the Federal Court recalled that
cumulative sentences (Gesamtstrafe) combining those passed in Trier
and in Saarbrücken (see paragraph 58 below) remained to be
determined. In this connection, it stated, inter alia:
"Excessive length of criminal proceedings may - and the Regional
Court did not overlook this - constitute a special mitigating
circumstance (Entscheidungen des Bundesgerichtshofes in Strafsachen,
vol. 24, p. 239). When a cumulative sentence has to be determined
retrospectively, this consideration must likewise apply to the
period which has already elapsed between the hearing before the
trial court and the moment when the principle of res judicata took
effect in respect of the judgment, and which will continue to elapse
until the final decision. Attention must also be drawn in this case
to the special burden imposed on the defendants by the dividing up
of groups of cases consisting in the repeated commission of similar
offences into two sets of criminal proceedings. The Court is not
required to rule on the merits of this allocation. It considers,
however, that the spirit of the law would be lost sight of ... if,
when determining sentence, this circumstance were not clearly
(deutlich) taken into account."
5. Proceedings relating to the constitutional complaints
(24 May 1976 - 30 June 1977)
34. On 24 and 28 May 1976, Mr. and Mrs. Eckle applied to the Federal
Constitutional Court (Bundesverfassungsgericht). Challenging the
judgments of both the Federal Court of Justice and the Trier
Regional Court, they alleged a violation of sections 1, 2, 3,
19 par. 4 and 103 of the Basic Law (Grundgezetz), mainly on account of
the excessive length of the trial and of the existence of three
distinct sets of proceedings.
On 30 June 1977, a bench of three members of the Constitutional Court
decided not to hear the applications; it judged that they did not
offer sufficient prospects of success.
6. Determining cumulative sentences (Gesamtstrafen) (24 November 1977)
35. On 24 November 1977, the Trier Regional Court fixed cumulative
sentences combining those it had pronounced itself and those imposed
by the Saarbrücken Regional Court (see paragraphs 27 above and 58
below). The new sentences fixed were: imprisonment for seven years
in the case of Mr. Eckle and for two years and eight months in the
case of his wife. Acting on submissions dated 19 October from the
Trier public prosecutor's office, the Court suspended for five years
that part of Mr. Eckle's sentence which was in excess of five years and
eleven days, and suspended for two years that part of Mrs. Eckle's
sentence which was in excess of one year and four months.
In the grounds given for its decision in respect of Mr. Eckle, the
Trier Regional Court repeated the above-quoted reasoning of the
Federal Court of Justice (see paragraph 33 above). It appeared to
the Court that the long duration of the criminal proceedings should
be taken into account in Mrs. Eckle's favour too.
36. On 23 January 1978, the Koblenz Court of Appeal dismissed an
"immediate appeal" (sofortige Beschwerde) entered by each of the
applicants, on 1 and 2 December respectively, against the Regional
Court's decision. The Court of Appeal held, inter alia:
"... the Criminal Chamber rightly regarded the excessive length of
the criminal proceedings and the separation of groups of comparable
cases into several acts of proceedings as a special mitigating
circumstance and it took account of this when determining sentence
(Echtscheidungen des Bundesgerichtshofes in Strafsachen, vol. 24,
p. 239). Its dicta on this point are comprehensive, sensible and in
accordance with the principles laid down by the Federal Court of
Justice in its judgment of 19 February 1976 in the instant case ...
[The Court of Appeal] too is of the opninion that these reasons
justify a cumulative sentence of [seven years for Mr. Eckle and two
years and eight months for Mrs. Eckle]. Even having regard to
Article 6 (art. 6) of the Convention ..., this sentence does not
appear to be unduly severe (ibid, vol. 24, p. 239). Considering also
the culpability (unter Abwägung auch der Schuld) of the defendants, a
reduction of sentence does not seem appropriate ..."
According to the Government, Mr. and Mrs. Eckle thereupon applied to
the Federal Constitutional Court which rejected their applications.
II. The Cologne proceedings
1. From the opening of a preliminary investigation to the preferment
of the "bill of indictment" (21 march 1967 - 25 September 1973)
37. On 21 March 1967, the Cologne public prosecutor's office began a
preliminary investigation of Mr. Eckle, who was suspected of having
committed, inter alia, various frauds. From 29 March onwards the
investigation - which had been commenced ex officio followig the
appearance of a number of articles in the press - was extended to
cover several complaints lodged in February and March by purchasers
of building materials and persons who had made loans to the Eckle
firm.
The Cologne proceedings comprised five groups of charges in all (see
paragraph 80 of the Commission's report):
(a) They covered first of all a complex of frauds against customers
of the Eckle firm who had allegedly suffered losses after the latter
had gone bankrupt. The persons concerned in this part of the
proceedings were the applicants, the two close collaborators who
were later convicted at Trier (see paragraph 27 above), a tax
consultant, two architects and a building expert.
(b) The second group concerned the "Hobby-Bau GmbH" company in
Frankfurt. The object of this company, which was founded in 1965 by
two former employees of the applicants, was to carry on the Eckle
firm's business activities in the Frankfurt area. Mr. Eckle was
supposedly in control of this company; his wife had been given power
of disposal over its assets. The company had ceased payments at the
end of 1966, and in December 1967 bankruptcy proceedings were
commenced.
(c) The third group of charges was connected with Mr. Eckle's
relations with a Mr. Neubeck of Cologne and the companies he
controlled, and in particular their financial and trading operations,
with alleged transfers of property to Liechtenstein and Switzerland,
and with the bankruptcy of the Neubeck companies; proceedings in
respect of the latter were, however, severed from the rest.
(d) The fourth group dealt with the business relations of the Eckle
firm or the Hobby-Bau GmbH company and its manager with an accountant
and two companies both called Westropa-Bauservice, whose head offices
were in Zug (Switzerland) and Munich.
(e) The fifth group related mainly to the Eckle company; the
applicants, those of their employees accused with them and other
persons were suspected of having committed either as principals,
co-principals or accessories offences of fraudulent bankruptcy and
tax evasion.
During 1967 and 1968, the investigation was widened to cover
thirteen persons other than the applicants.
38. At the request of the public prosecutor's office, the Cologne
District Court (Amtsgericht) issued a search and seizure warrant in
respect of the applicants on 25 April 1967. The police thereupon
searched the business premises of the Eckle company on 11 and 12 May.
They seized four metric tons of documents which the public
prosecutor's office made available to an accountant
(Wirtschaftsprüfer) whom it had appointed as a consultant the previous
month. Also in May a special commission was set up composed of a
public prosecutor and three police officers who were specialists in
investigating economic crime; this commission worked exclusively on
the Eckle case and continued in existence until May 1972.
According to the account of events provided by the Government, between
1967 and 1972 the relevant authorities applied for, authorised and,
with a few exceptions, performed numerous searches of the offices and
private dwellings of the applicants and some of their co-accused, the
offices of other companies and the offices of more than thirty-five
banks; in addition, they seized a mass of documents. In 1967: such
measures were carried out on 23 May, at Völklingen; on 20 and 21 July,
in Cologne; on 25 July, at Püttlingen; and on 24 and 25 August and
14 October, in Frankfurt; on 30 January, at Steinau; on 6 and
7 February, in Cologne; on 16 February, in Frankfurt; in 1968:
on 29 January, in Frankfurt; on 18 and 22 February, at Miesbach and in
Munich; on 8 March, in Frankfurt; on 15 March, in Düsseldorf and
Essen; on 15 and 16 March, in Frankfurt; from 1 to 4 April, at
Völklingen and in Saarbrücken; on 2 April in Munich; on 10 April, in
Augsburg; on 18 and 19 April, in Frankfurt; on 6 and 7 May, in
Saarbrücken and at Wittlich; on 15 May, in Trier; on 24 June, at
Seligenstadt; on 23 July, in Munich; on 19 September, in Kassel; from
1 to 5 October, in Munich; on 11 November, in Frankfurt; on 3 and
4 December, in Hamburg; and on 12 December, in Cologne; in 1969: on
30 January in Frankfurt and Darmstadt; on 8 April, at Völklingen; on
11 and 24 April, in Saarbrücken; on 14 June, in Cologne; on 24 and
26 November, at Ottweiler; on 25, 26 and 27 November, at Saarlouis and
Bous; on 1 December at Bous; and on 11 December, in Saarbrücken and at
Saarlouis; in 1970: on 6 August, in Saarbrücken and at Gersweiler; and
on 30 November, in Frankfurt; in 1971: on 19 April, in Saarbrücken;
and on 20 April, at Saarlouis; and in 1972: on 14 April, in Munich.
The appeals which the parties concerned lodged from time to time
(for example, on 31 July and 13 and 29 September 1967 and on
26 September and 14 October 1969) were dismissed, except for the
second one, which was partly allowed on 4 October 1967 by the Cologne
Regional Court.
39. The prosecutor in charge of the investigation conferred on 9 and
16 May 1967 with the criminal investigation police about coordination
of action and, on 16 May, with the consultant whom he instructed to
carry out certain tasks (Teilgutachten).
On 10 August, he requested the criminal investigation police to
question four witnesses about certain specified points, and, on
16 August, he sent further documents to the consultant.
On 22 August, he assumed responsibility for a number of cases and
agreed to the transfer of those which the Trier public prosecutor's
office had begun to inquire into (see paragraph 18 above). Seven
days later, he requested the public prosecutor's offices in
Frankfurt and Offenburg to forward to him various file of which
he had copies made on 18 September.
During the months that followed, the prosecutor took over a number
of preliminary investigations which had begun elsewhere: three of
them on 10 October, 207 on 10 November, five on 11 December, two on
11 January 1968 and three on 8 February 1968.
On 15 February 1968, he asked the federal office of the criminal
investigation police (Bundeskriminalamt) to make inquiries into a
company in Switzerland and four others in Liechtenstein which he
suspected were being run by Mr. Eckle and his fellow accused
Neubeck.
On 11 and 20 June, he asked for certain inquiries to be made by the
criminal investigation police in Dudenhofen, Kassel and other
places, and circulated a letter written in May and containing a list of
questions to numerous foreign companies and individuals residing
abroad who had allegedly suffered loss.
On 20 June too, he summoned a witness in order to have him
questioned by the criminal investigation police; other witnesses
made statements on 24, 25 and 27 July.
At the request and in the presence of the public prosecutor's
office, one of the co-accused was questioned on 18 September by a
judge from the Seligenstadt District Court; another co-accused was
similarly questioned on 4 October.
40. On 29 November 1968, the public prosecutor's office instructed
the consultant it had appointed in 1967 (see paragraph 38 above) to
produce an expert opinion on seven listed points, including the
history of the Hobby-Bau GmbH company and its relations with the
Westropa company. On 23 July 1969, it sent him other documents for
the purpose.
41. On 10 January and 23 July 1969, four preliminary investigations
in respect of Mr. Eckle which had been begun notably in Saarbrücken,
Frankfurt and Trier were transferred to the Cologne public
prosecutor's office, which on 20 February made inquiries of the
local authorities of six municipalities concerning the purchase of
land by the Hobby-Bau GmbH company and at the same time asked for
the production of the land registers of the relevant district
courts.
On 31 March and 8 July prosecutor's office heard the applicant
informally for information purposes. On 16 April and 19 June, it
summoned witnesses in Saarbrücken and Saarlouis for questioning; on
18, 21 and 22 April, it advised the public prosecutor's office in
Saarbrücken and Koblenz of the purpose of the investigation and of a
number of inquiries made and still to be made. On 14 May, the Trier
public prosecutor's office sent to Cologne nine volumes of the file
on the proceedings in Trier; these were returned by the Cologne
office on 6 June. On 9 June, the latter asked the presiding judges
of the District Courts of Cologne and Völklingen to provide it with
a list of the seizures which had been made in respect of the Eckle
firm and the applicants.
In July, August and September, the public prosecutor's office
instructed the criminal investigation police in Mannheim,
Saarbrücken, Berlin and Hamburg to make inquiries into
life-insurance policies which Mr. Eckle had taken out with a number
of companies; sought information from an insurer in Saarbrücken;
obtained the opinion of the Federal Banking Supervisory Office
(Bundesaufsichtsamt für Kreditwesen); and applied for the files
concerning the land register at Völklingen.
42. According to the report of the Commission, from March 1967 to
August 1968 statements were taken from about 832 creditors, from the
majority of some 3,500 purchasers of building materials from the
Eckle company and from a large number of other witnesses or
employees; and the Eckle company's accounts with some twenty-five
credit institutions were examined. Until October 1969 the
investigation was focused on the alleged frauds committed by the
accused to the detriment of 832 creditors and 3,590 purchasers of
building materials.
43. As requested by the public prosecutor's office on
13 November 1969, the Cologne District Court issued, five days later,
a warrant for the arrest of two co-accused and Mr. Eckle. The latter
was remanded in custody on 25 November and he remained in custody on
that basis until 5 September 1970; from the next day onwards in
accordance with a decision taken by the District Court on 1 September,
he was detained on the basis of the warrant for his arrest which the
Koblenz Court of Appeal had issued on 28 January 1970 in the
proceedings at Trier (see paragraph 21 above).
The applicant several times appealed unsuccessfully to the Cologne
District Court, Regional Court and Court of Appeal against the issue
of the arrest warrant on 18 November.
44. During the latter period, that is between December 1969 and
September 1970, the Cologne public prosecutor's office heard
Mrs. Eckle (12 December); discussed the progress of the proceedings
with the public prosecutor's office in Saarbrücken (26 January 1970)
which, by mutual agreement, transferred to Cologne an investigation
in respect of one of the other persons accused (5 March); had four
witnesses summoned in Saarbrücken (20 May); and set dates for the
hearing of a number of people, notably in Saarbrücken, Frankfurt,
Ahrweiler and Hamburg (21, 22, 28 and 30 July, 26 August).
On 30 July 1970, the consultant's terms of reference were widened,
and the consultant informed the public prosecutor's office
11 August that an expert opinion could not be produced before
mid-1971.
45. On 1 September, the Cologne District Court refused to make
available to Mr. Eckle the legal codes, books and periodicals and the
2,000 files which he had asked for.
On 9 September, Mr. Eckle challenged a judge on the District Court,
which rejected the challenge on 21 September as no grounds for it
had been adduced. An appeal was dismissed on 4 December by the
Cologne Court of appeal - two of whose judges Mr. Eckle had
previously challenged - because he had not put forward any
supporting reasons, although the Court had twice given him extra
time to do so.
46. Continuing its investigation, the public prosecutor's office
proceeded to set dates for hearing a number of people itself, mainly
elsewhere than in Cologne, or alternatively to request the appropriate
criminal investigation police or courts to question them (24 and
26 November 1970, 18 and 19 January, 3 February, 30 March, 6, 7,
28 and 29 April 1971); business records of the Eckle company were
examined, seized and sent to the consultant by the prosecutor's office
(12 to 14 May 1971); requests for the production of files were made to
other courts, including the Federal Constitutional Court (24 May,
18 June, 19 July, 23 August, 29 September); information was sought
from the Cologne Court of Appeal (24 May); and the Cologne Social
Security Office was asked to make certain inquiries (18 August).
On 13 August 1971, the consultant submitted an interim report on the
Eckle company's indebtedness, insolvency and suspension of payments.
On 21 October, a doctor transmitted to the public prosecutor's
office an expert opinion, which it had requested on 4 October, on
Mr. Eckle's fitness to stand trial.
47. On 21 November, Mr. Eckle applied, amongst other things, for the
warrant for his arrest to be revoked. The Cologne District Court
refused the application on 30 November. On appeal, the Cologne
Regional Court on 13 December 1971 and then the Cologne Court of
Appeal on 17 January 1972 upheld that decision.
Between January and April 1972, the public prosecutor's office
summoned, or caused to be summoned, a number of witnesses,
Mrs. Eckle and other accused persons so that they could make statements
(notably on 6 January 1972, 1, 17 and 28 February and 3 and 8 March)
and on 22 March requested another doctor to give his opinion on
Mr. Eckle's fitness to stand trial.
From 17 March 1972, the day he was convicted in the Trier
proceedings (see paragraph 27 above), the applicant was detained on
remand under a warrant issued, and subsequently confirmed on 8 May,
by the relevant Cologne court. On 2 June, the same court decided to
suspend Mr. Eckle's remand in custody to enable him to serve the
sentence passed on him on 26 March 1971 by the Saarbrücken Regional
Court (see paragraph 58 below). The Cologne Regional Court dismissed
appeals by Mr. Eckle on 22 June and 20 November.
48. The public prosecutor's office completed the investigation on
10 May 1972 and on the same date dropped the prosecutions against
some of the co-accused.
It asked the Cologne Regional Court on 14 June to assign two
official defence counsel, in particular for Mr. Eckle. On 20 June,
the Court appointed one of them - Mr. Muhr to whom the public
prosecutor's office sent a copy of the files and other documents on
14 August and 2 October - but refused Mr. Eckle's request that it
should nominate Mr. Becker, who had defended him in the trial at
Trier. An appeal by Mr. Eckle against this latter decision was
dismissed on 20 November. On the same day, the Regional Court
discharged Mr. Muhr from his duties and replaced him as official
defence counsel by the applicant's lawyer, Mr. Preyer, to whom it
had already sent the main files, among other things, on 13 November.
On 20 June, the consultant had filed his final report on the Eckle
firm; four months later he submitted one on the Hobby-Bau GmbH
company.
On 17 July, the public prosecutor's office had called on the
applicant and his fellow accused to state by 30 August whether they
wanted a "final hearing". This time-limit was extended on
31 August, and Mr. Eckle subsequently replied affirmatively
on 18 September.
49. On 11 and 17 July 1972, Mr. Eckle had challenged two judges on
the Regional Court. After giving him an ultimate deadline until
15 September to state his grounds, the Regional Court rejected his
challenges on 2 November; a subsequent appeal, for which he was
granted extra time to put forward his reasons, was likewise
dismissed on 6 April 1973.
On 14 November 1972, the Cologne District Court decided to confirm
the authorisation to serve the sentence passed on Mr. Eckle by the
Saarbrücken Regional Court (see paragraphs 47 above and 58 below).
An appeal lodged by Mr. Eckle on 30 November, for which he had asked
to be given until 31 January 1973 to state his reasons, seems to
have been unsuccessful.
On 12 December, the public prosecutor's office sent copies of files
to counsel for the defence for inspection.
Between November 1972 and March 1973, Mr. Eckle lodged several other
applications and appeals whose purpose is not apparent from the
same time he asked the competent authorities to grant him extensions
of time in order to formulate the grounds for his applications.
50. On 1 March 1973, the public prosecutor's office set the date of
13 March for the "final hearing" of Mrs. Eckle and, pursuant to
Article 154 of the Code of Criminal Procedure (see paragraph 16
above), dropped the charges of fraud in a number of cases.
The hearing of Mrs. Eckle took place on the appointed day. On the next
day, Mr. Eckle, acting through his defence counsel, waived his right
to a "final hearing", but on 28 March his lawyer applied for one,
explaining that the waiver had been due to a misunderstanding. As on
the same day the prison doctor expressed the opinion that the state of
the applicant's health made him unfit to appear, the hearing was
adjourned.
51. On 29 March 1973, Mr. Eckle sought an extension of time to
submit reasons in support of a number of his appeals; lodged two
fresh appeals against decisions of the Regional Court; and
challenged the presiding judge of the Ninth Criminal Chamber. The
time-limit originally allotted to him for stating his grounds for the
challenge was to have expired on 30 April, but the Regional Court
agreed to put the deadline back to 31 May, then to 30 June, to
31 July and, finally, to 31 August.
On 6 April 1973, Mr. Eckle applied to the District Court for
Mr. Preyer's instructions to be withdrawn and for Mr. Becker to be
assigned as official defence counsel, and asked also for three day's
leave of absence (Urlaub); these applications were refused on
6 June. On 9 July, his defence counsel asked the District Court to
discharge the warrant for his client's arrest; the District Court
refused this request on 23 July.
On 3 September, Mr. Eckle stated that he would not agree to attend
the "final hearing" so long as Mr. Preyer remained responsible for
his defence. Mr. Preyer, however, said on 19 September that his
client still wished to have such a hearing, but wanted first of all to
confer with other defence counsel. He accordingly requested that the
hearing should be postponed for three weeks.
On 19 September too, the prosecutor concerned set down 24 September
as the date for the hearing. On that date he went to the prison
where Mr. Eckle was being detained. Mr. Eckle, however, declared
that he was unfit to undergo the hearing and unwilling to give an
account of himself, whilst at the same time refusing to be examined
by a medical expert.
52. On 25 September, the public prosecutor's office preferred the
"bill of indictment" before the Cologne Regional Court after
deciding not to proceed with the charges in a large number of
individual cases.
Four people, including the applicants, were "indicted". The
applicants were charged with fraudulent bankruptcy, tax evasion and
fraud; Mr. Eckle, alone or with others, was charged with the latter
offence in 55 cases, and Mrs. Eckle, alone or together with others,
in 27 cases. The "indictment", which ran to 432 pages, mentioned
3 experts and 143 witnesses. On 15 and 16 October, the public
prosecutor's office filed with the Regional Court 14 volumes of
appendices, various subsidiary files (Beiakten) and experts'
reports.
2. From the preferment of the "bill of indictment" to the opening
of the trial (Hauptverfahren) (25 September 1973 - 16 September 1976)
53. The presiding judge of the Sixth Criminal Chamber of the
Regional Court notified the parties concerned and their defence
counsel of the "bill of indictment" on 16 October 1973 and set a
time-limit for the submission of any comments by them. Extensions of
time were granted on several occasions, notably on 7 March 1974;
a final request for extension was, however, refused by the Regional
Court on 21 June 1974.
Having once more been in detention on remand since 21 November 1973
under an arrest warrant issued by the appropriate Cologne court,
Mr. Eckle applied on 7 December for his release from custody; he was
released on 10 January 1974.
On 28 January 1974, the Regional Court transmitted the whole of the
file to the Federal Constitutional Court, which had requested it on
16 January; the file was returned by the Constitutional Court on
26 February.
Four days previously, Mr. Becker - of the Trier Bar - had requested
the Regional Court to appoint him officially as the applicant's
defence counsel; the Regional Court rejected this request on
7 March.
On 19 March, 3 April and 24 and 30 May, counsel for one of the
co-accused requested, inter alia, to have parts of the file and
other documents made available to him for a short period. He also
asked for variation of a 1970 decision granting his client
conditional release, for further inquiries and for a preliminary
judicial examination (Voruntersuchung). The Court allowed at least the
penultimate application (29 May and 1 July). On 11 August, the same
lawyer submitted written pleadings, on which the consultant
commented on 12 December.
On 9 January 1975, the counsel who had made the applications of
19 March, 3 April and 30 May 1974 discussed them with the responsible
prosecutor, after which he withdrew the application of 30 May. The
file on the case, which was at the public prosecutor's office, was
returned to the Regional Court.
In a note entered in the file on 22 May, the presiding judge of the
Tenth Criminal Chamber of the Regional Court commented that the
trial would probably last for about a year.
On 21 January 1976, one of the applicant's co-accused, whose case
had been severed from theirs, applied for the return of certain
documents, but the Regional Court refused this on 10 March; between
13 March and 26 September he filed various other applications.
On 16 September, the Regional Court opened the trial proceedings
(Hauptverfahren) in respect of the applicants and the two other
persons who had been "indicted" with them, and notified them
accordingly.
3. From the opening of the trial (Hauptverfahren) to the end of the
proceedings (16 September 1976 - 21 September 1977)
54. On 19 October 1976, Mr. Eckle requested the Regional Court to
discharge the warrants for his arrest which had been issued by the
Cologne District Court and Regional Court (see paragraphs 43 and
53 above); these requests were refused on 3 February 1977.
Earlier, on 3 January 1977, the public prosecutor's office had
informed the Regional Court that cumulative sentences remained to be
determined combining those passed by the Regional Courts of
Saarbrücken and Trier, but that no decision could be taken for the
time being as the file was with the Federal Constitutional Court for
the purposes of an application lodged by Mr. Eckle.
On 31 August, the Regional Court inquired of the public prosecutor's
offices in Saarbrücken and Trier whether, amongst other things,
cumulative sentences had been determined in the meantime.
55. At the request of the public prosecutor's office
(14 September 1977), the Regional Court on 21 September made an
order, pursuant to Article 154 of the Code of Criminal Procedure
(see paragraph 16 above), discontinuing the proceedings against the
applicants; the latter had consented thereto.
At the same time, the Regional Court revoked the arrest warrants
mentioned above (at paragraph 54) and directed that the applicants
should themselves meet their own expenses, while the court costs
would be borne by the State.
In accordance with the public prosecutor's submissions, the Regional
Court did not award the applicants any compensation; on
27 December 1979, it refused a subsequent request by Mr. Eckle and
this decision was upheld by the Cologne Court of Appeal on
6 February 1980.
56. Following an order for separate trials, the prosecutions against
eleven of the thirteen co-accused were discontinued during the course
of proceedings either in pursuance of Article 154 of the Code of
Criminal Procedure (see paragraph 16 above) or for lack of adequate
evidence or because of the intervening death of those concerned. The
two remaining co-accused were, for their part, sentenced by the
relevant courts to various penalties between 1970 and 1980; in their
cases also, separate trial had been ordered.
III. The Saarbrücken proceedings (late 1963 - 20 April 1972)
57. The criminal prosecutions brought against Mr. and Mrs. Eckle in
Saarbrücken are not in issue, but they need to be mentioned because
of their bearing on the proceedings in Trier and Cologne.
58. Towards the end of 1963, the public prosecutor's office in
Saarbrücken began a preliminary investigation in respect of the
applicants. They were suspected of having defrauded clients in the
Saar in transactions of the kind that were later the subject of
prosecutions in Trier and, in part, in Cologne.
After being "indicted" with others in March 1965, they were
convicted by the Saarbrücken Regional Court on 17 October 1967 on
99 counts of fraud: Mr. Eckle was sentenced to six years' imprisonment
and his wife to a term of three years and six months.
On petitions for review on a point of law, the Federal Court of
Justice quashed the convictions on 14 March 1969 and remitted the
case to another chamber of the Regional Court.
On 19 February 1970, after eight days of hearings, the latter
chamber sentenced Mrs. Eckle to two years' imprisonment on 74 counts
of fraud. Mr. Eckle, whose trial had had to be severed from his
wife's, was convicted on 26 March 1971 after hearings that had
commenced on 24 February; the Regional Court found him guilty on
68 counts of fraud and sentenced him to four years' imprisonment. A
fresh petition for review on a point of law by the parties concerned
was dismissed by the Federal Court of Justice on 20 April 1972.
59. The sentences passed by the Saarbrücken Regional Court were
combined on 24 November 1977 with those imposed on 17 March 1972 by
the Trier Regional Court (see paragraphs 27 and 35 above).
IV. Mr. Eckle's detention on remand
60. In the course of the proceedings against him Mr. Eckle spent
approximately five years in detention on remand. The various courts
placed reliance on a risk of his absconding and tampering with
evidence.
PROCEEDINGS BEFORE THE COMMISSION
61. In their application of 27 December 1977 to the Commission
(no. 8130/78), Mr. and Mrs. Eckle claimed that the length of the
proceedings brought in Trier, Saarbrücken and Cologne gave rise to a
breach of Article 6 par. 1 (art. 6-1) of the Convention. Mr. Eckle,
relying on Article 5 par. 3 (art. 5-3), complained in addition of his
detention on remand. Subsequent to the registration of their
application, Mr. and Mrs. Eckle also alleged violation of Article 6
par. 2 (art. 6-2) on account of the refusal to reimburse their
expenses in the Cologne proceedings.
On 10 May 1979, the Commission declared the application admissible
as far as the alleged failure to observe the "reasonable time" in
the Trier and Cologne cases was concerned; it declared the other
complaints inadmissible either as being out of time or for
non-exhaustion of domestic remedies (Articles 26 and 27 par. 3),
(art. 26, art. 27-3) depending upon the circumstances.
In its report of 11 December 1980 (Article 31) (art. 31), the
Commission expressed the unanimous opinion that there had been breach
of Article 6 par. 1 (art. 6-1).
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
62. In their memorial and at the close of the hearings held on
22 March 1982, the Government sought from the Court "a declaration to
the effect that, owing to the lack of grievance, the Court cannot
decide on the merits of the case".
AS TO THE LAW
63. The applicants complained of the length of the criminal
proceedings brought against them in Trier and Cologne; they claimed
that it had exceeded the "reasonable time" stipulated under
Article 6 par. 1 (art. 6-1).
I. ARTICLE 25 PAR. 1 (art. 25-1)
64. In their memorial and subsequently in their oral pleadings, the
Government formally requested the Court to hold that, because of the
lack of an existing grievance, the Court was unable to take
cognisance of the merits of the case. In the Government's
submissions, the applicants could no longer be regarded as victims
within the meaning of Article 25 par. 1 (art. 25-1) of the Convention
which reads:
"The Commission may receive petitions addressed to the Secretary
General of the Council of Europe from any person, non-governmental
organisation or group of individuals claiming to be the victim of a
violation by one of the High Contracting Parties of the rights set
forth in (the) Convention ..."
The German courts, so it was argued, have in effect acknowledged the
excessive length of the proceedings and have afforded redress: the
Trier Regional Court took the matter into account when determining
sentence and the Cologne Regional Court did likewise when ordering
the discontinuance of the prosecutions (see paragraphs 35
and 55 above).
The applicants contested this line of reasoning. Neither did it find
favour with the Commission. In the view of the Commission, the
courts had not made any finding of a violation of Article 6 (art. 6);
the reduction of sentence that the Trier Regional Court had declared
itself to be granting was not measurable; finally, it was not clearly
established that the Cologne Regional Court had paid regard to the
excessive length of the proceedings when discontinuing the
prosecutions.
65. The Court has jurisdiction to rule on preliminary pleas of this
kind in so far as the respondent State may have first raised them
before the Commission to the extent that their character and the
circumstances permitted (see the Artico judgment of 13 May 1980,
Series A no. 37, p. 12, par. 24).
These conditions being satisfied in the present case, there is no
estoppel.
66. The word "victim", in the context of Article 25 (art. 25),
denotes the person directly affected by the act or omission which is
in issue, the existence of a violation conceivable even in the absence
of prejudice; prejudice is relevant only in the context of Article 50
(art. 50) (see, inter alia, the Adolf judgment of 26 March 1982,
Series A no. 49, p. 17, par. 37).
Consequently, mitigation of sentence and discontinuance of prosecution
granted on account of the excessive length of proceedings do not in
principle deprive the individual concerned of his status as a victim
within the meaning of Article 25 (art. 25); they are to be taken into
consideration solely for the purpose of assessing the extent of the
damage he has allegedly suffered (see, mutatis mutandis, the Ringeisen
judgment of 22 June 1972, Series A no. 15, p. 8, par. 20-21, the
Neumeister judgment of 7 May 1974, Series A no. 17, pp. 18-19,
par. 40, and also the Commission's opinion in the Wemhoff case,
Series B no. 5, pp. 89 and 273-274).
The Court does not exclude that this general rule might be subject
to an exception when the national authorities have acknowledged
either expressly or in substance, and then afforded redress for, the
breach of the Convention (see the Commission's decision of
16 October 1980 on the admissibility of application no. 8182/80,
Schloffer v. the Federal Republic of Germany). In such
circumstances, to duplicate the domestic process with proceedings
before the Commission and the Court would appear hardly compatible
with the subsidiary character of the machinery of protection
established by the Convention. The Convention leaves to each
Contracting State, in the first place, the task of securing the
enjoyment of the rights and freedoms it enshrines (see especially
the judgment of 23 July 1968 on the merits of the "Belgian
Linguistic" case, Series A no. 6, p. 35, par. 10 in fine, and the
Handyside judgment of 7 December 1976, Series A no. 24, p. 22,
par. 48). This subsidiary character is all the more pronounced in the
case of States which have incorporated the Convention into their
domestic legal order and which treat the rules of the Convention as
directly applicable (see the Van Droogenbroeck judgment of
24 June 1982, Series A no. 50, par. 55).
67. As the Convention forms an integral part of the law of the
Federal Republic of Germany, there was nothing to prevent the courts
of the country from holding, if appropriate, that the Convention
and, in particular, Article 6 par. 1 (art. 6-1) had been breached.
The national courts also had available to them a means of affording
reparation which, in the Court's opinion, is capable of proving
suitable: according to well-established case-law of the Federal Court
of Justice, when determining sentence the judge must take proper
account of any over-stepping of the "reasonable time" within the
meaning of Article 6 par. 1 (art. 6-1) (see the judgment of
10 November 1971, Entscheidungen des Bundesgerichtshofes in
Strafsachen, vol. 24, pp. 239-243).
Accordingly, it has to be ascertained whether, as the Government
submitted, the German courts held that Article 6 par. 1 (art. 6-1)
had been breached and, if so, whether they granted redress.
68. In the words of the Trier Regional Court, the proceedings before
it had lasted for an "inordinate length of time" (judgment of
17 March 1972, paragraph 27 above); they had been of "long" and
"excessive" duration (decision of 24 November 1977, paragraph 35
above). This latter description is also to be found in the judgment
of 19 February 1976 by the Federal Court of Justice and in the
judgment of 23 January 1978 by the Koblenz Court of Appeal (see
paragraphs 33 and 36 above). All these decisions, save the judgment
by the Trier Regional Court, make reference to the case-law cited at
paragraph 67. The Koblenz Court of Appeal alone alludes to Article 6
par. 1 (art. 6-1) when stating that, even having regard to this
Article, the sentence pronounced at Trier was not unduly severe.
The Cologne Regional Court's decision of 21 September 1977
discontinuing the criminal proceedings against Mr. and Mrs. Eckle
simply takes note of the consent of the accused and refers to the
formal submissions presented by the public prosecutor's office. The
latter had cited the reasoning enunciated by the Federal Court in
relation to the cumulative sentences to be fixed by the Trier
Regional Court (see paragraph 33 above). The prosecutor's office had
further submitted that this reasoning would apply a fortiori in the
event of fresh cumulative sentences being imposed subsequent to a
possible conviction in Cologne.
69. It is apparent from the foregoing that none of the relevant courts
expressly acknowledged the existence of a breach of Article 6 par. 1
(art. 6-1). Nonetheless, the language employed by the Trier Regional
Court (decision of 24 November 1977), the Federal Court of Justice and
the Koblenz Court of Appeal, taken together with the references to the
Federal Court's judgment of 10 November 1971, could be taken as
amounting to a finding to that effect. Less certain in this respect is
the import of the decision by the Cologne Regional Court. Even
assuming that this decision should, as the Government contended, be
read in the light of the formal submissions presented by the public
prosecutor's office, it hardly warrants the conclusion that the
Regional Court held the length of the proceedings to be in breach of
Article 6 par. 1 (art. 6-1).
70. Even if it were accepted that the relevant decisions do
acknowledge in a sufficiently clear manner the failure to observe
the "reasonable time" requirement, it would still be necessary
that redress should have been given. The issue that arises is thus
whether the mitigation of sentence granted, according to the terms
of its decision, by the Trier Regional Court and the discontinuance of
proceedings ordered by the Cologne Regional Court remedied the
matters complained of.
The Court notes, however, that this part of the Government's case is
intimately connected with another aspect of the complaint, namely
the extent of the alleged breach. Consequently, the Court considers
that it should join to the merits the preliminary plea relied on by
the Government (see, mutatis mutandis, the Airey judgment of
9 October 1979, Series A no. 32, p. 11, par. 19).
II. THE ALLEGED BREACH OF ARTICLE 6 PAR. 1 (art. 6-1)
71. The Commission expressed the opinion that there had been breach
of Article 6 par. 1 (art. 6-1) which provides:
"In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and
impartial tribunal established by law ..."
The Government conceded that the proceedings had, at certain stages,
been unreasonably long.
A. The length of the proceedings
72. In the applicants' submission, the Trier proceedings were set in
motion in November 1959 and came to a close on 24 November 1977 when
the Regional Court fixed the cumulative sentences. At the hearings,
the Government argued that the proceedings lasted from 7 October 1964
(searches of the applicants' premises) until 19 February 1976
(judgment by the Federal Court of Justice). The Commission concurred
with this line of thinking as to the second date, but not as to the
first: in the Commission's view, the opening date must be traced back
to at least 1 January 1961.
For the applicants and the Commission, the Cologne proceedings
commenced with the issue on 25 April 1967 of a search and seizure
warrant against Mr. and Mrs. Eckle. Before the Court, the Government
appeared to put forward the date on which this warrant was served
and executed, namely 11 May 1967, and no longer, as they had done
before the Commission, the date on which Mr. Eckle was remanded in
custody (25 November 1969). As far as the end of the period is
concerned, the applicants, the Government and the Commission were
all agreed in proposing 21 September 1977, the day on which the
proceedings were discontinued.
1. Commencement of the periods to be taken into account
73. In criminal matters, the "reasonable time" referred to in
Article 6 par. 1 (art. 6-1) begins to run as soon as a person is
"charged"; this may occur on a date prior to the case coming before
the trial court (see, for example, the Deweer judgment of
27 February 1980, Series A no. 35, p. 22, par. 42), such as the date
of arrest, the date when the person concerned was officially notified
that he would be prosecuted or the date when preliminary
investigations were opened (see the Wemhoff judgment of 27 June 1968,
Series A no. 7, pp. 26-27, par. 19, the Neumeister judgment of the
same date, Series A no. 8, p. 41, par. 18, and the Ringeisen judgment
of 16 July 1971, Series A no. 13, p. 45, par. 110). "Charge", for the
purposes of Article 6 par. 1 (art. 6-1), may be defined as "the
official notification given to an individual by the competent
authority of an allegation that he has committed a criminal offence",
a definition that also corresponds to the test whether "the situation
of the [suspect] has been substantially affected" (see the
above-mentioned Deweer judgment, p. 24, par. 46).
74. Applying these principles to the facts of the case, the Court
considers that the date put forward by the applicants in respect of
the Trier proceedings cannot be the relevant one because documents
produced by the Government show that the complaint lodged on
28 October 1959 did not lead to any formal measures of inquiry being
ordered. The public prosecutor's office closed the file on the
matter after obtaining information from the competent administrative
authorities as to the existence of maximum prices in the building
materials trade; neither the prosecutor's office nor the police
questioned witnesses or the applicants. A true preliminary
investigation was begun only in August 1960 when numerous witnesses
were interviewed in connection with the allegations made against
Mr. Eckle (see paragraphs 11-12 above). As the Delegate of the
Commission pointed out, the object of these interviews was not to
determine whether a preliminary investigation should be opened; the
interviews themselves formed part of the preliminary investigation.
Nevertheless, having been unable to ascertain as from what moment
the applicants officially learnt of the investigation or began to be
affected by it, the Court concurs with the opinion of the Commission
and takes as the starting point for the "time" the date of
1 January 1961.
In this connection, the Court does not deem it necessary, as the
Government at one point seemed to have in mind, to draw any
distinction between the two applicants, for although the
investigation does not appear to have been directed against
Mrs. Eckle from the outset, she must have felt the repercussions
to the same extent as her husband.
75. The appropriate date for the commencement of the Cologne
proceedings is, on the case-law cited above, the date of service of
the warrant issued on 25 April 1967, that is 11 May 1967 (see
paragraph 72 above).
2. End of the periods to be taken into account
76. As regards the end of the "time", in criminal matters the
period governed by Article 6 par. 1 (art. 6-1) covers the whole of the
proceedings in issue, including appeal proceedings (see the König
judgment of 28 June 1978, Series A no. 27, p. 33, par. 98).
77. In the Trier proceedings, it still remained necessary, after the
judgment of 19 February 1976 by the Federal Court of Justice, to fix
cumulative sentences combining those previously imposed on
19 February 1970 and 26 March 1971 by the Saarbrücken Regional
Court and then on 17 March 1972 by the Trier Regional Court (see
paragraphs 27 and 58 above). The Federal Court had itself drawn the
Regional Court's attention to the duty of the courts under German law
(Articles 53 and 55 of the Penal Code) to render, if need be of their
own motion, a decision to this effect. Furthermore, the determination
of cumulative sentences did not represent for the Trier judges a mere
matter of mathematical calculation, for under Article 54 of the Penal
Code they were bound to make their own overall assessment of all the
offences for which the applicants had been convicted at Saarbrücken
and Trier as well as their own assessment of the character of the
offenders; this, in fact, they did in their decision of
24 November 1977. In addition, the Regional Court had to take into
account by way of mitigating circumstance, amongst other matters, the
time that had elapsed from the Federal Court's judgment "until the
final decision" (see paragraph 33 above).
It follows that after the judgment by the Federal Court of Justice
the applicants were not in a position to calculate the size of the
sentences that were to be fixed. They simply knew that those
sentences had to be less than the total of the sentences that the
two Regional Courts had, each within its respective domain, imposed
on them in respect of the various offences found (Article 54 par. 2
of the Penal Code).
In the event of conviction, there is no "determination ... of any
criminal charge", within the meaning of Article 6 par. 1 (art. 6-1),
as long as the sentence is not definitively fixed. Thus, in the
Ringeisen judgment of 16 July 1971 the Court took as the close of the
proceedings the date on which the trial court had decided, following
appeal proceedings, that the entire period spent by the applicant in
detention on remand should be reckoned as part of the sentence
(Series A no. 13, pp. 20 and 45, par. 48 and 110).
Consequently, the period to be taken into account ended on
23 January 1978 when the Koblenz Court of Appeal delivered its
judgments upholding the cumulative sentences pronounced by the
Regional Court on 24 November 1977.
78. The Cologne proceedings, for their part, came to a close on
21 September 1977 when the Regional Court ordered discontinuance of
prosecution.
3. Conclusion
79. The length of time to be examined under Article 6 par. 1
(art. 6-1) thus amounted to seventeen years and three weeks
(1 January 1961 - 23 January 1978) as regards the Trier proceedings
and ten years, four months and ten days as regards the Cologne
proceedings (11 May 1967 - 21 September 1977).
Drawing attention to the fact that the applicants had continued
their illegal activities during the course of the investigation of
the case at Trier, the Government requested the Court to deduct from
the total length of those proceedings the periods during which the
fresh offences were being committed.
The Court views this factor as simply one of the elements that are
of importance for reviewing the "reasonableness" of the "time".
B. The reasonableness of the length of the proceedings
80. The reasonableness of the length of the proceedings must be
assessed in each instance according to the particular circumstances.
In this exercise, the Court has regard to, among other things, the
complexity of the case, the conduct of the applicants and the
conduct of the judicial authorities (see the above-mentioned
König judgment, Series A no. 27, p. 34, par. 99).
The present case concerns sets of proceedings that endured seventeen
years and ten years respectively. Such a delay is undoubtedly
inordinate and is, as a general rule, to be regarded as, exceeding
the "reasonable time" referred to in Article 6 par. 1 (art. 6-1)
(see the above-mentioned Neumeister judgment of 27 June 1968,
Series A no. 8, p. 41, par. 20; see also the above-mentioned
König judgment, p. 34, par. 102). In such circumstances, it falls to
the respondent State to come forward with explanations.
I. The Trier proceedings
81. Although the legal issues it involved appear relatively simple,
the case that was investigated and tried at Trier did undisputedly
pose serious problems especially in view of the sheer volume of the
applicants' activities and the ingenious way in which they presented
their methods of financing contracts of sale. Moreover, further
complexity was added during the course of the inquiries since, as is
stated in the judgment of the Trier Regional Court, a number of
fraudulent loan contracts were still being concluded at the end of
1963 and in 1964.
82. Far from helping to expedite the proceedings, Mr. and Mrs. Eckle
increasingly resorted to actions - including the systematic recourse
to challenge of judges - likely to delay matters; some of these
actions could even be interpreted as illustrating a policy of
deliberate obstruction (see paragraphes 15, 20, 22, 23, 24, 25
and 32 above).
However, as the Commission rightly pointed out, Article 6 (art. 6)
did not require the applicants actively to co-operate with the
judicial authorities. Neither can any reproach be levelled against
them for having made full use of the remedies available under the
domestic law. Nonetheless, their conduct referred to above constitutes
an objective fact, not capable of being attributed to the respondent
State, which is to be taken into account when determining whether or
not the proceedings lasted longer than the reasonable time referred to
in Article 6 par. 1 (art. 6-1) (see, mutatis mutandis, the
above-mentioned König judgment, pp. 35-36, 37, 38 and 40, par. 103,
105, 108 and 111, and the Buchholz judgment of 6 May 1981,
Series A no. 42, pp. 18 and 22, par. 56 and 63).
83. In the applicant's submission, the length of the proceedings
stemmed from the way in which the judicial authorities handled the
case. Their principal ground of criticism was that the judicial
authorities undertook three distinct sets of investigation and trial
proceedings instead of joining them and carried out inquiries into
too many individual cases.
The Commission likewise considered that the length of the
proceedings was primarily referable to the conduct of the judicial
authorities. In the Commission's view, the preliminary
investigations, the withdrawal of the "bill of indictment", the
drafting of the Regional Court's judgment and the hearing of the
petitions for review on a point of law occasioned unreasonable
delays.
The Government expressed disagreement with this opinion.
84. The Court, like the Commission, has come to the conclusion that
the competent authorities did not act with the necessary diligence
and expedition.
Thus, the enormous number of cases subjected to inquiry was not
without effect in prolonging the preliminary investigation (see
paragraphe 16 above). In the Government's submission, the principle
of "legality of prosecution" (the principle of obligatory
prosecution of all criminal offences), as laid down under the law,
compelled the authorities to proceed in the manner they did. The
Court, however, is not convinced by this argument. Although
Article 154 of the Code of Criminal Procedure, which provides for the
possibility of discontinuing prosecution, was amended only in 1979,
the Government themselves conceded that this reform embodied a
practice that had been current under the previous legislation. In any
event, the Government may not, in relation to the fulfilment of the
engagements undertaken by them by virtue of Article 6 (art. 6), seek
refuge behind the possible failings of their own domestic law.
Moreover, the text in force at the relevant time proved no obstacle to
the public prosecutor's office and the Regional Court discontinuing
prosecution on certain counts (see paragraphs 16 and 26 above).
In addition, it is not easy to understand why in 1967, thus six
years after the opening of the investigation, the Trier public
prosecutor's office, when confronted with the further offences it
believed to have discovered, should have judged there to be only one
suitable course of action, namely the withdrawal of the "bill of
indictment" (see paragraph 18 above). It should also be noted that
approximately one more year elapsed before transfer of the fresh
cases to the Cologne public procecutor's office (ibid).
Neither is there any proper explanation as to why the judgment of
17 March 1972 was not served on the applicants until 12 February 1973
(see paragraph 27 above). Undoubtedly, as was stressed by the
Government, the drafting of the judgment required analysing an
enormous mass of documents, but that alone cannot justify a period
of almost eleven months after delivery of the judgment.
Finally, the proceedings for review on a point of law lasted almost
three years (see paragraphs 29-33 above).
85. Before the Court, the Governement drew attention to the fact
that the Eckle case had been one of the first big cases of economic
crime, especially for the Land Rhineland-Palatinate. At the relevant
time the authorities, so the Government explained, lacked the
necessary experience and means to combat rapidly and effectively
this type of offence. In the meantime, a series of legislative and
administrative measures was said to have been taken to this end.
The Court realises that initially the specific forms of economic
crime caused the judicial authorities a variety of problems, notably
in relation to the speedy and smooth conduct of criminal
proceedings. It also recognises the efforts made by the Federal
Republic of Germany in the legislative and administrative sphere in
order to deal with this mischief with the requisite expedition.
Nevertheless, the Court cannot attach a decisive weight to these
factors for its ruling on the instant case, for the state of affairs
confronting the competent authorities was not at all exceptional
(see, mutatis mutandis, the above-mentioned Buchholz judgment,
pp. 16, 20-21 and 22, par. 51, 61 and 63).
86. In the light of all these various factors, the Court reaches the
conclusion that the difficulties of investigation and the behaviour of
the applicants do not on their own account for the length of the
proceedings: one of the principal causes therefor is to be found in
the manner in which the judicial authorities conducted the case.
87. Having regard to the length of the delays attributable to the
respondent State, the reduction of sentence that the Regional Court
stated it was granting to the applicants was not capable of
divesting the latter of their entitlement to claim to be victims,
within the meaning of Article 25 (art. 25) (see paragraphs 68 and
70 above): the Regional Court's decision did not contain sufficient
indications to allow an assessment of the extent to which the length
of the proceedings was being taken into account for the purposes of
the Convention.
88. Accordingly, the Court rejects the Government's preliminary plea
as regards this part of the case and concludes that the Trier
proceedings exceeded a reasonable time in breach of Article 6 par. 1
(art. 6-1) of the Convention.
2. The Cologne proceedings
89. The case investigated and tried at Cologne concerned fifteen
persons initially and had ramifications outside the country; it
dealt with charges not only of fraud but also of fraudulent
bankruptcy and tax evasion (see paragraph 37 above). Like the
Commission, the Court considers that it was particularly difficult
and complex.
90. As at Trier, Mr. and Mrs. Eckle slowed down the progress of the
proceedings by making numerous applications and appeals, often
accompanied by requests for an extension of the time-limit for the
filing of written pleadings (see especially paragraphs 43, 45, 47,
48, 49, 51, 53 and 54 above; compare with paragraph 82 above).
91. The applicants held the judicial authorities solely responsible for
the delays. In addition to the grounds already set out (at paragraph
83 above), they placed reliance on the fact that the judicial
authorities had not severed the fraud charges from the charges in
respect of the other offences.
The Commision attributed the length of the proceedings principally
to the manner in which the judicial authorities had handled the
case. It pointed to the excessive duration of the inquiries and, by
way of example, to the belated completion of the expert's report; it
also considered that the opening of the trial had been delayed
without good reason and that the Regional Court could well have
discontinued the prosecutions at an earlier stage.
The Government expressed disagreement with this opinion.
92. The Court, like the Commission, has come to the conclusion that
the competent authorities did not act with the necessary diligence
and expedition. It notes in particular that nearly three years
elapsed between preferment of the "bill of indictment"
(25 September 1973, paragraph 52 above) and opening of the trial
(16 September 1976, paragraph 53 above).
In this latter connection, the Government pleaded the heavy
work-load which was at the time confronting the chambers of the
Regional Court specialised in dealing with economic crime; the
Government listed various measures taken to remedy the situation.
The Court recognises that the authorities endeavoured to reduce the
backlog of pending business before the Regional Court by increasing
the number of specialised chambers from two (in 1973) to six
(in 1977). The Court nonetheless considers that, having regard to the
great length of time that had elapsed, the Regional Court's volume of
work, which was nothing exceptional in itself, cannot be relied on by
the Government (compare with the above-mentioned Buchholz judgment,
Series A no. 42, pp. 16, 20-21 and 22, par. 51, 61 and 63). For the
same reason, and just as in relation to the case investigated and
tried at Trier (see paragraph 85 above), the Court does not feel able
to attach a decisive weight to the efforts, albeit meritorious, made
in the Federal Republic of Germany to combat economic crime with
greater speed and efficacy.
93. On the basis of all the various factors taken into account, the
Court reaches the conclusion that the difficulties of investigation
and the behaviour of the applicants do not on their own account for
the length of the proceedings: one of the main causes therefor is to
be found in the manner in which the judicial authorities conducted
the case.
94. The discontinuance of the prosecutions, ordered by the Regional
Court on 21 September 1977 with the consent of the applicants, was
in principle capable of affecting their entitlement to claim to be
"victims", within the meaning of Article 25 (art. 25), but the length
of the delays attributable to the authorities was such that the
applicants in no way forfeited their status as "victims"; moreover,
the discontinuance decision, whether or not read in the light of the
formal submissions presented by the public prosecutor's office,
discloses no indication whatsoever that it had been taken having
regard to the above-mentioned delays (see paragraphs 68 and 70 above).
95. Accordingly, the Court rejects the Government's preliminary plea
as regards this part of the case and concludes that the Cologne
proceedings exceeded a reasonable time in breach of Article 6 par. 1
(art. 6-1) of the Convention.
III. THE APPLICATION OF ARTICLE 50 (art. 50)
96. Counsel for the applicants stated that, should the Court find a
violation of the Convention, his clients would be submitting a claim
under Article 50 (art. 50) for just satisfaction for the prejudice
suffered as a result of the unreasonable length of the proceedings and
possibly for legal costs; he did not, however, quantify their claim.
The Government, for their part, did not take a stand on the issue.
Accordingly, although it was raised under Rule 47 bis of the Rules
of Court, the question is not yet ready for decision. The Court is
therefore obliged to reserve the matter and to fix the further
procedure, taking due account of the possibility of an agreement
between the respondent State and the applicants.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Joins to the merits the preliminary plea raised by the
Government, but rejects it after an examination on the merits;
2. Holds that there has been a breach of Article 6 par. 1 (art. 6-1)
of the Convention;
3. Holds that the question of the application of Article 50 (art. 50)
is not ready for decision;
accordingly,
(a) reserves the whole of the said question;
(b) invites the Commission to submit to the Court, within two months
from the delivery of the present judgment, the Commission's written
observations on the said question and, in particular, to notify the
Court of any friendly settlement at which the Government and the
applicants may have arrived;
(c) reserves the further procedure and delegates to the President of
the Chamber power to fix the same if need be.
Done in English and in French, the French text being authentic, at
the Human Rights Building, Strasbourg, this fifteenth day of July
one thousand nine hundred and eighty-two.
Signed: Rolv RYSSDAL
President
For the Registrar
Signed: Herbert PETZOLD
Deputy Registrar