AS TO THE ADMISSIBILITY OF
by Norbert-Heinrich STEIN
The European Court of Human Rights (Fifth Section), sitting on 7 July 2009 as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 17 March 2005,
Having deliberated, decides as follows:
The applicant, Mr Norbert-Heinrich Stein, is a German national who was born in 1935 and lives in Wuppertal. He was represented before the Court by Mr M. Schütz and Dr G. Janssen, lawyers practising in Krefeld.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 26 February 1992 the Düsseldorf Tax Office initiated an investigation suspecting the applicant of having committed income and business tax evasion from 1980 to 1984.
On 6 August 1992 the Düsseldorf District Court issued a warrant for the arrest of the applicant.
On 7 October 1992 the applicant was arrested. On 8 October 1992 he was brought before a judge, where his counsel claimed that there was no risk of absconding. The applicant was remanded in custody.
On 9 October 1992, and again on 15 October 1992, the applicant’s counsels requested access to the investigation file of the Public Prosecutor’s Office. The requests were initially rejected. On 9 July 1993 the applicant’s counsel was granted partial access to the file.
On 14 November 1992 the applicant filed an objection to the arrest warrant, which the Düsseldorf Regional Court dismissed on 17 December 1992.
On 10 January 1993 the applicant requested judicial review of his detention, arguing that an expert report confirmed that he was unfit for detention due to a trauma experienced in his childhood. On 26/27 January 1993 the District Court dismissed the request, finding that there was no imminent risk to his life. The Regional Court, after hearing another expert, dismissed the appeal on 13 April 1993.
On 3 May 1993 the Düsseldorf Court of Appeal (Oberlandesgericht) ordered the extension of the applicant’s detention, stating that there was a strong suspicion that he had committed several of the crimes he was charged with and that there was considerable risk of his absconding. Further extensions were granted in October 1993, and January and May 1994.
On 21 February 1994 the applicant requested judicial review of his detention. On 8 March 1994 the District Court decided that the detention be continued. On 19 May 1994 the Regional Court dismissed the appeal.
On 15 June 1994 the Public Prosecutor’s Office issued the indictment against the applicant, which was amended on 5 August 1996.
On 16 June 1994 the applicant lodged a constitutional complaint, complaining about the length of his pre-trial detention. On 4 August 1994 the Federal Constitutional Court quashed the decision of the Court of Appeal of 19 May 1994. On 31 August 1994 the Court of Appeal set aside the arrest warrant and the applicant was released from custody.
On 30 March 1998 the Regional Court ordered the opening of the trial.
March 1999 the Regional Court suggested, by reason of the length of
the proceedings, that they be discontinued pursuant to section
153 § 2 of the Code of Criminal Procedure providing
for the discontinuance of proceedings on the ground of
insignificance. On 12 March 2000 the Public Prosecutor’s Office
agreed to discontinue the proceedings.
On 20 October 2000 the applicant refused to consent to the discontinuance and requested the scheduling of the trial.
On 30 January 2002 the trial started, and went on to last a total of 57 trial days. During the trial the applicant requested several times that the proceedings be discontinued pursuant to section 260 § 3 of the Code of Criminal Procedure providing for the discontinuance of proceedings if there is a procedural impediment to the proceedings’ continuation; the applicant argued that the length of the proceedings in his case constituted such a procedural impediment. The Regional Court dismissed the requests.
May 2003 the applicant was convicted on four counts of tax evasion
and the Regional Court sentenced him to nine months’
imprisonment. In the sentencing part of the judgment, the Regional
Court held that the proceedings had been delayed for six and a half
It decided that the single sentences for the four charges each had to be reduced by 50 percent because of the very long delay in the proceedings, for which the applicant could not be deemed responsible. From the four single sentences, the Regional Court formed a cumulative sentence. It decided that a cumulative sentence of 18 months was adequate for the offences committed and the applicant’s criminal liability. Again taking into account the delay in the proceedings, for which the applicant was not responsible and which had contributed to the excessive length of the proceedings of almost eleven years, the Regional Court decided to reduce the cumulative sentence by 50 percent, arriving thus at a final sentence of nine months’ imprisonment. The applicant appealed against the judgment.
May 2004 the Federal Court of Justice quashed the sentence, finding
that the delay in the proceedings warranted dispensing with a penalty
in respect of the applicant. The Federal Court of Justice confirmed
that there had been a delay of six and a half years, holding that the
Regional Court had found a violation of Article 6 § 1 of the
The Regional Court had, however, solely taken into account the temporal aspect of the delay and had failed to consider that the length of the proceedings had had considerable consequences on the applicant’s health. The Regional Court had committed, therefore, an error in determining the sentence. Taking into account all the relevant factors, the Federal Court of Justice applied section 60 of the Criminal Code allowing for dispensing with a penalty.
The applicant lodged a constitutional complaint against the judgment of the Federal Court of Justice, arguing that the court, instead of dispensing with a penalty, should have discontinued the proceedings because of the procedural impediment of an excessive delay in the proceedings.
On 8 September 2004 the Federal Constitutional Court refused to admit the constitutional complaint. It observed that the Regional Court had offered to discontinue the proceedings pursuant to section 153 of the Code of Criminal Procedure, to which the applicant, however, had not agreed. Instead, he later requested that the proceedings be discontinued pursuant to section 260 § 3 of the Code of Criminal Procedure, and sought the same outcome with his constitutional complaint. The Federal Constitutional Court found that the applicant had not demonstrated that a substantial interest existed in discontinuing the proceedings pursuant to section 260 § 3 of the Code of Criminal Procedure rather than pursuant to section 153 of the same Code.
B. Relevant domestic law
The sections of the Code of Criminal Procedure discussed by the Federal Constitutional Court in the present case are outlined in the case of Ommer v. Germany (no. 1) (no. 10597/03, §§ 36 and 38, 13 November 2008).
Section 60 of the Criminal Code allows for dispensing with a penalty if the consequences of the offence are so serious for the offender that the imposition of a penalty would be manifestly inappropriate. This provision is not to be applied if the offender has received a prison sentence of more than one year.
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Court finds that the period to be considered started on 7 October 1992, when the applicant was arrested and taken into custody, and ended with the decision of the Federal Constitutional Court on 8 September 2004, thus lasting almost 12 years.
The Court observes that the Regional Court expressly found that there had been a delay of six and half years which was not attributable to the applicant and the Federal Court of Justice confirmed the unreasonable length of proceedings, referring expressly to Article 6 § 1 of the Convention.
In this situation the question arises whether the applicant may continue to claim to be a victim, within the meaning of Article 34 of the Convention, of a violation of Article 6 § 1 of the Convention.
The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” of a violation of a Convention right unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, inter alia, Eckle v. Germany, 15 July 1982, § 66, Series A no. 51, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).
As to the redress which has to be afforded to an applicant in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation found. In cases concerning a breach of Article 6 § 1 due to the excessive length of criminal proceedings, the Court has repeatedly found that redress could notably be granted by adequately reducing the prison sentence of the person found guilty of an offence in an express and measurable manner (see, inter alia, Eckle, cited above, §§ 67, 87, and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 186, ECHR 2006-V). The discontinuance of the criminal proceedings on account of their excessive length may also be capable, depending on the duration in question, adequately to redress a breach of Article 6 § 1 (see, inter alia, Eckle, cited above, § 94, and Sprotte v. Germany (dec.), no. 72438/01, 17 November 2005).
The Court observes that the Regional Court had found a distinct sentence for each of the four convictions, reducing each by 50 percent because of the established undue delay in the proceedings, arriving at a cumulative sentence of 18 months’ imprisonment. In light of the delay and the overall length of the proceedings, it further reduced the sentence to nine months’ imprisonment. The Federal Court of Justice expressly referred to Article 6 of the Convention when confirming the delay in the proceedings established by the Regional Court. Moreover, the Federal Court of Justice decided, in particular in light of the delay and its considerable effect on the applicant, to dispense with a penalty.
Court finds that the domestic authorities have acknowledged the
violation of the Convention and have provided sufficient redress by
reducing the prison sentence in an express and measureable manner.
The applicant cannot, therefore, complain to be a victim of a violation of his right to a hearing within a reasonable time, as guaranteed under Article 6 § 1.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
It is noted that the applicant had lodged a constitutional complaint with the Federal Constitutional Court, which quashed the decision to extend his pre-trial detention on 4 August 1994. The Düsseldorf Court of Appeal set aside the arrest warrant on 31 August 1994, and the applicant was released the same day. The applicant lodged his application to the Court, however, only on 17 March 2005.
It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen Phillips Peer Lorenzen
Deputy Registrar President