European Court of Human Rights

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 10731/05
by Joachim BERGER
against Germany

The European Court of Human Rights (Fifth Section), sitting on
22 January 2008 as a Chamber composed of:

Peer Lorenzen, President,
Karel Jungwiert,
Volodymyr Butkevych,
Margarita Tsatsa-Nikolovska,
Javier Borrego Borrego,
Renate Jaeger,
Mark Villiger, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 17 March 2005,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Joachim Berger, is a German national who was born in 1956 and lives in Singen.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was charged with abetting economic subsidy fraud (Subventionsbetrug) in three instances which had caused damages of 120.000 DEM (German marks). He was accused of having applied for capital investment subsidies with fraudulent intention while having worked for the company of another accused person based in Thuringia during the period May 1993 to July 1994. The applicant was first interrogated by the police as an accused person in March 1996. The indictment which also concerned four other accused persons was issued on 15 September 1999 and listed as evidence seven witnesses as well as several documents.

The Mühlhausen Regional Court opened the main proceedings on
16 May 2002 and joined - without giving any reasons - the proceedings with another, considerably more complex set of proceedings in which nine persons had been accused of economic subsidy fraud. In view of the length of the proceedings, both the applicant’s legal counsel and the prosecutor objected to the order to join both proceedings.

The applicant subsequently filed a constitutional complaint against that order. On 12 August 2002, the Federal Constitutional Court found that the order to join the proceedings had violated the applicant’s right to a fair trial (2 BvR 932/02). The order to connect the proceedings of 16 May 2002 with a far more complex set of proceedings which did only partially concern the applicant had been against the prohibition of excessiveness.
Whether the disadvantages for the applicant caused by the length of the proceedings which had commenced in March 1996 were outweighed by the advantages of joining both proceedings was questionable, in particular in the absence of a reasoning of the Mühlhausen Regional Court.

On 23 August 2002, the main proceedings commenced before the Mühlhausen Regional Court and were initially scheduled for nine days of court hearings. Until the end of 2002, the proceedings against the other three accused persons were terminated.

On 22 March 2004, the Mühlhausen Regional Court ordered to join the proceedings against the applicant with a different set of proceedings against another person.

On 18 May 2004, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint against that order (2 BvR 880/04).
It reasoned that, whereas the former order of 16 May 2002 to join the proceedings had been unconstitutional because the second set of proceedings had been a considerably more complex case with numerous accused persons, the proceedings with which the applicant’s case had been joined by order of 22 March 2004 concerned identical charges against only one other accused person.

On 17 November 2004, the Mühlhausen Regional Court dismissed the applicant’s motion to terminate the proceedings because of the length of the proceedings. The Regional Court noted that, according to section 206a of the Code of Criminal Procedure (see Relevant domestic law below), a court may order the termination of the proceedings if there is a procedural impediment to the proceedings’ continuation. The length of the proceedings could normally not be regarded as such an impediment, unless, in exceptional circumstances, redress for the length could not be granted in a decision on the merits. Whether the length of the proceedings was contrary to fair trial-principles needed to be established in view of the particular circumstances of the case, while taking into account such factors as the complexity of the case, the severity of the crimes in the indictment, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute. The Regional Court considered that the case at issue was of average complexity and the hardships for the applicant were considerable (in particular in view of the distance between his place of residence and the place of jurisdiction). However, the Regional Court found that in the light of all circumstances of the case there was no such procedural impediment. The offences in the indictment would not fall under the statute of limitations before May 2007. Excessive delay of the proceedings which were not attributable to the accused person could be redressed by adequately reducing the sentence in an express and measurable manner. The circumstances of the present case did not suggest that such a reduction was no longer possible.

On 16 February 2005, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint (2 BvR 15/05) against the decision of the Mühlhausen Regional Court of 17 November 2004.
The Federal Constitutional Court found that the applicant could still file a complaint about the allegedly excessive length of the proceedings with the ordinary courts. The applicant had not substantiated that the criminal proceedings at issue threatened his professional or economic situation.
The inconvenience caused by the distance between his residence in Bavaria and the place of jurisdiction in Thuringia did not make it unreasonable for the applicant to complain about the length before the ordinary courts.

On 6 June 2005, the Mühlhausen Regional Court informed the applicant that it intended to terminate the proceedings in accordance with section 206a of the Code of Criminal Procedure because the length of proceedings impeded the continuance of the proceedings. The Mühlhausen Regional Court stressed that a hearing against the applicant had not yet taken place by June 2005. On 10 May 2004, it had decided to suspend the case; the original date for the hearing on 12 May 2004 had been cancelled.
From January 2005, the case had been transferred to a different chamber within the Regional Court. Because of other cases which deserved priority, the case could not have been treated by the new chamber before May. Moreover, one part of the charges already fell under the statute of limitations.

On 16 June 2005, the Office of the Prosecutor submitted that, in case of a decision to terminate the proceedings in accordance with section 206a of the Code of Criminal Procedure, it would contest that decision.
The applicant had been responsible for the length of proceedings to a considerable degree by filing numerous motions. Moreover, the limitation period for the offences had been impeded with the opening of the main proceedings. The Office of the Prosecutor instead suggested the discontinuance of the proceedings in accordance with section 153 of the Code of Criminal Procedure (see Relevant domestic law below).

Despite the above intention of the Mühlhausen Regional Court to terminate the proceedings, the applicant was never informed whether the proceedings were terminated.

B.  Relevant domestic law

According to section 206a of the Code of Criminal Procedure, the court may terminate the proceedings by an order made outside the main hearing where a procedural impediment arises after the main proceedings have been opened. The order shall be contestable by immediate complaint.

Section 153 of the Code of Criminal Procedure governs the discontinuance of criminal proceedings on the ground of insignificance. During the investigation proceedings the Public Prosecutor’s Office may discontinue the criminal proceedings if they concern an offence for which it is not mandatory to impose a sentence of at least one year’s imprisonment (Vergehen), if the defendant’s guilt would be of a minor nature and if there was no public interest in criminal prosecution. The court which has jurisdiction to open the main proceedings must consent to discontinuing the proceedings unless they concern offences which are not subject to an increased minimum penalty and the consequences ensuing from the offence were minor (section 153 § 1). If the indictment has already been preferred with the court the latter may discontinue the proceedings at any stage under the conditions set out in § 1 with the consent of both the Public Prosecutor’s Office and the defendant (section 153 § 2).

COMPLAINTS

The applicant complained under Article 6 § 1 and Article 1 of Protocol No. 1 of the Convention about the length of the criminal proceedings. Moreover, he complained under Articles 5, 6, 7, 8 and 14 as well as
Article 2 of Protocol No. 7 of the Convention about the ongoing criminal proceedings.

THE LAW

A.  The length of the proceedings

The applicant complained about the length of proceedings under
Article 6 § 1, which, as far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court notes that the present proceedings began with the applicant’s interrogation as an accused person in March 1996. As to date, the proceedings are still pending. It is therefore necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of the Rules of Court.

B.  The remainder of the complaints

The applicant complained under Articles 5, 6, 7, 8 and 14 as well as Article 1 of Protocol No. 1 and Article 2 of Protocol No. 7 of the Convention about the ongoing criminal proceedings. In the light of all the material in its possession, and insofar as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of proceedings;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President