AS TO THE ADMISSIBILITY OF
by Joachim BERGER
European Court of Human Rights (Fifth Section), sitting on
17 March 2009 as a Chamber composed of:
Rait Maruste, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 17 March 2005,
Having regard to the partial decision of 22 January 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
applicant, Mr Joachim Berger, is a German national who was born in
1956 and lives in Singen. He is represented before the Court by Mr O.
Berg, a lawyer practising in Strasbourg. The respondent Government
are represented by their Agent, Mrs A. Wittling-Vogel,
of the Federal Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
March 1996 the applicant was first questioned by the police on
suspicion of three counts of abetting economic subsidy fraud.
The indictment was issued on 15 September 1999.
On 16 May 2002 the Mühlhausen Regional Court opened the main proceedings.
On 6 June 2005 the Mühlhausen Regional Court informed the applicant that it intended to terminate the proceedings in accordance with Article 206a of the Code of Criminal Procedure as it considered that the length of proceedings precluded their continuation (see “Relevant domestic law” below).
On 16 June 2005 the prosecutor’s office submitted that it would
contest such termination of the proceedings. However, it suggested
discontinuing the proceedings in accordance with Article 153 of the
Criminal Procedure (see “Relevant domestic law” below).
On 23 June 2005 the Regional Court discontinued the proceedings in accordance with Article 153 of the Code of Criminal Procedure after the applicant’s lawyer had agreed to the proposed termination of the proceedings on the same day.
On the same day the sitting judge of the Regional Court instructed the court’s registry to formally serve the discontinuation order on the applicant’s defence counsel and to informally transmit a copy of that decision to the applicant together with other documents, such as the submissions of the Public Prosecutor’s Office of 16 June 2005.
On 24 June 2005 the applicant’s defence counsel acknowledged receipt of the court’s decision of 23 June 2005.
On an unspecified date the applicant received the Regional Court’s letter of 23 June 2005; however, it is disputed between the parties whether that letter contained the court’s decision to discontinue the proceedings.
Between 24 June 2005 and 27 July 2005 the applicant addressed further letters to the Regional Court requesting the court to comply with its obligation to proceed speedily.
On 12 November 2007 the Court requested that the applicant provide information as to whether the proceedings had been discontinued in the meantime.
On 26 November 2007 the applicant replied that he had not received any information about the discontinuation of the proceedings and that he did not know whether a discontinuation was imminent or intended.
Therefore, on 22 January 2008 the Court decided to communicate the application to the respondent Government concerning the length of the proceedings.
B. Relevant domestic law
Article 206a of the Code of Criminal Procedure, the court may
terminate the proceedings by an order made outside the main hearing
should a procedural impediment arise after the main proceedings have
Thus the length of proceedings may preclude their continuation if, in exceptional circumstances, redress for the length of proceedings cannot be granted in a decision on the merits.
of the Code of Criminal Procedure governs the discontinuation 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 that
does not carry a sentence of at least one year’s imprisonment
(Vergehen), if the defendant’s guilt is of a minor
nature and if there is 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
(Article 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 Article 153 § 1 with the consent of both the public prosecutor’s office and the defendant (Article 153 § 2).
The applicant complained under Article 6 § 1 of the Convention that the length of the criminal proceedings was unreasonable.
According to the applicant, the length of the criminal proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The parties’ submissions
The Government argued that the applicant had provided the Court with incomplete and misleading information, as he had failed to disclose the Regional Court’s discontinuation order of 23 June 2005, which terminated the proceedings in dispute. According to the Government, the applicant’s behaviour constituted an abuse of his right to lodge an application.
Government did not consider it credible that the applicant had not
been aware of the discontinuation order. Firstly, that decision had
been officially served on the applicant’s defence counsel who
had acknowledged its receipt. According to general experience it
could be assumed that the lawyer had informed the applicant of the
discontinuation of the proceedings. Secondly, the Regional Court sent
its decision of 23 June 2005 to the applicant, as was proved by an
internal note of the Regional Court according to which the latter
decision had been sent to the applicant together with the order of
the public prosecutor’s office dated 16 June 2005. Morevoer,
the applicant’s behaviour following 23 June 2005 proved that he
had in fact been informed of the termination of the proceedings.
Having pursued his proceedings very intensively and with great vigour until June 2005, the applicant’s total inaction since July 2005 could only be explained by the fact that he had been informed about the discontinuation of the proceedings in the meantime.
the Government, referring to the Court’s decision in the
Alfes case (see Alfes v. Germany, (dec.) no. 41514/04, 10 July 2007), submitted that the application was in any event inadmissible ratione personae as the applicant had lost his victim status with the discontinuation order.
applicant contested the Government’s submissions. He alleged
that he had never received the Regional Court’s decision of 23
Nor had his lawyer informed him of the discontinuation of the proceedings. Contrary to the Government’s submissions, experience (and the poor remuneration of court-appointed defence counsel) suggested that they usually limited their activities to the minimum. Moreover, the
applicant’s counsel had had no reason to inform him of the discontinuation as the Regional Court’s letter to the lawyer indicated that it had already sent the discontinuation order to the applicant. Furthermore, the fact that the applicant continued to make submissions to the Regional Court after
23 June 2005 proved that he had, in fact, no knowledge of the termination of the proceedings. The reason for his inaction following 27 July 2005 was that the Regional Court had not responded to his further submissions.
Lastly, he maintained that the discontinuation of the proceedings had not removed his victim status as the Court’s case-law in the Alfes case concerned the discontinuation of proceedings on condition of payment of a certain amount of money whereas the proceedings against him were discontinued without any penalty.
2. The Court’s assessment
Court notes that the Regional Court discontinued the proceedings
against the applicant on 23 June 2005, whereas the applicant informed
the Court on 26 November 2007 that he had received no information as
to whether the proceedings had been terminated in the meantime.
After receiving that information the Court communicated the
applicant’s complaint about the length of the criminal proceedings to the respondent Government.
regards the alleged abuse of the right of application, the Court
recalls that an application may be rejected as abusive under Article
35 § 3 of the Convention if, among other reasons, it was
knowingly based on untrue facts (see, Varbanov v. Bulgaria no.
31365/96, § 36, ECHR 2000-X;
Popov v. Moldova (no. 1) no. 74153/01, § 48, 18 January 2005;
Rehak v. Czech Republic (dec.), no. 67208/01, 18 May 2004; and Kerechachvili v. Georgia (dec.), no. 5667/02, 2 May 2006). Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Lozinschi and Rujavnita v. Moldova (dec.), nos. 33052/05 and 31404/05, 4 November 2008, and Hüttner v. Germany (dec.), no. 23130/04, 17 June 2008).
In the present case the Court considers in the first place that service on the lawyer is generally accepted as good service for the client and, as the Government note, one would expect the applicant to have been informed of the termination of the proceedings by his lawyer. In the absence of further explanation from the applicant – such as a statement by the lawyer explaining why he did not inform the applicant – the Court sees no reason to assume that the lawyer did not do so.
it is undisputed between the parties that the applicant had received
the Regional Court’s letter of 23 June 2005 with several
annexed documents such as the submissions of the Prosecutor’s
16 June 2005. Given that the discontinuation of the proceedings was the reason for sending that letter, it does not seem plausible that the
Regional Court in fact failed to annex the discontinuation order. Furthermore, the fact that the applicant’s persistent correspondence with the Regional Court came to a sudden standstill in July 2005 suggests that he had in fact learned about the discontinuation of the proceedings. In particular, the applicant did not give any plausible explanation why, contrary to his previous repeated requests to the Regional Court to speed up the proceedings, he completely stopped corresponding with the court, not even addressing a single inquiry as to whether his proceedings had been terminated in the meantime.
Therefore, the Court considers that the applicant, represented by legal counsel in the domestic proceedings and the proceedings before the Court, has not furnished any plausible explanation for his failure to inform the Court of the discontinuation of criminal proceedings against him. The Court further notes that it was in the light of the applicant’s misleading information that it decided to communicate the present case to the respondent Government, which involved unnecessary time and resources to decide this case.
Under these circumstances, the Court finds that the applicant’s conduct was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention.
It follows that the application must be rejected in its entirety as an abuse of the right of application pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Rait Maruste