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FIFTH SECTION

CASE OF WETJEN v. GERMANY

(Application no. 30175/07)

JUDGMENT

STRASBOURG

25 March 2010

This judgment is final but it may be subject to editorial revision.

In the case of Wetjen v. Germany,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Karel Jungwiert, President,
Renate Jaeger,
Mark Villiger, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 2 March 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 30175/07) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Bernd Rüdiger Wetjen (“the applicant”), on 12 July 2007.

The applicant was represented by Mr H.-P. Vierhaus, a lawyer practising in Berlin. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

On 24 October 2008 the President of the Fifth Section decided to give notice of the application to the Government. The Federal Republic of Germany having accepted the provisional application of the provisions of Protocol No. 14 governing the power of three-judge committees to decide on cases in which there is well-established case-law, it was decided to assign the application to a Committee. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1951 and lives in Hildesheim.

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

1. The investigation proceedings

In January 2000 the Magdeburg Public Prosecutor received two anonymous reports. The applicant, who acted as a court-appointed liquidator, a judge and two other liquidators were accused of collaborating to the detriment of other liquidators and creditors.

On 31 January 2000 the Magdeburg Public Prosecutor opened preliminary investigations against the applicant and six other persons. The applicant was suspected of having granted an undue benefit (Vorteilsgewährung) and of embezzlement (Unterschlagung). The investigations concerned, inter alia, the judge's alleged free stay at the applicant's ski lodge and benefits in connection with the purchase of two cars and two computers. By a letter dated 7 February 2000 the applicant was informed of the investigations.

In the following months, the Magdeburg Public Prosecutor (and also the Sachsen-Anhalt State Office of Criminal Investigations) questioned numerous witnesses and public officials of the court – partly, moreover, with the help of Vienna Interpol –, and searched, inter alia, the applicant's business premises, seized documents and computers and requested information from the Credit Control Company. The applicant and his co-defendants, on their part, including after the submission of an interim report by the Sachsen-Anhalt State Office of Criminal Investigations in August 2000, made rather extensive submissions and repeatedly requested access to the files. The Magdeburg District Court also decided on an appeal against the search of premises; proceedings against one of the co-defendants were stayed.

On 23 October 2000 the applicant requested the public prosecutor not to close the investigations and announced further submissions, which he submitted on 5 December 2000. In the meantime, further information on insolvency proceedings in respect of the applicant over the previous years had been obtained.

On 16 January 2001 the Magdeburg Public Prosecutor brought charges against the applicant, the judge and two more lawyers. The applicant was accused of having granted undue benefits to a public official, namely, the accused judge.

2. The interim proceedings (Zwischenverfahren)

On 23 January 2001 two judges of the Magdeburg Regional Court indicated possible grounds for bias.

In February 2001, and also three times in March 2001, the applicant requested an extension of the time-limit set. Two of his co-defendants changed their legal representatives; further access to the files was also granted.

In April 2001 the Magdeburg Public Prosecutor challenged one of the judges on the grounds of bias. In May 2001 the Magdeburg Regional Court rejected this request. In June 2001 the Naumburg Court of Appeal quashed that decision and found that the judge was biased. In July 2001 two more judges indicated that there were grounds for bias on their part. In August 2001 the Magdeburg Regional Court decided that one of the judges was to be excluded on the grounds of bias.

In August 2001 it decided to obtain an expert opinion and heard other witnesses. On 3 September 2001 it commissioned the expert. In October 2001 it further amended its decision. On 13 November 2001 the expert submitted his report.

Between November 2001 and March 2002 a number of memorandums, a report on the state of the investigations and further submissions by the accused were obtained.

3. The trial proceedings

a. Proceedings before the Magdeburg Regional Court and the Naumburg Court of Appeal

On 12 March 2002 the Magdeburg Regional Court decided to open the trial against the applicant as regards one offence; it refused to open a trial against the applicant as regards the five other offences.

On 13 March 2002 the Magdeburg Public Prosecutor lodged an appeal against that decision in the part refusing to open proceedings. In May 2002, when the reasoning was complete and the accused had made further submissions, the files were transferred to the Naumburg Court of Appeal.

On 21 June 2002 that court considered that a trial should also be opened as regards three of the other offences. It also decided that the main hearing was to be held before the Stendal Regional Court.

b. Proceedings before the Stendal Regional Court and the Federal Court of Justice

In July 2002 and September 2002 the applicant appointed two new legal counsel – both were also granted access to the files. Hereinafter, the parties agreed that hearings should take place as of mid January 2003.

In February 2003 the Magdeburg Public Prosecutor laid new charges with the Stendal Regional Court against the applicant and the judge.

Between 5 March 2003 and 14 May 2003 eleven hearings took place. More than 20 witnesses and also experts were heard. On 3 April 2003 the Stendal Regional Court acquitted one of the lawyers.

On 14 May 2003 it convicted the judge of tax evasion and acquitted the applicant and the co-defendants of all other charges. The written judgment, comprising 59 pages, was sent to the parties in July 2003.

On 18 August 2003 the Magdeburg Public Prosecutor appealed. In October, following submissions by the accused, the files were transferred to the Federal Court of Justice.

On 25 February 2004 the Federal Court of Justice quashed the judgment in the part acquitting the applicant and the others of the offences of granting an undue benefit and of taking a bribe (Bestechlichkeit) and remitted the case to the Dessau Regional Court.

c. Renewed proceedings before the Dessau Regional Court and the Federal Court of Justice

In April 2004 the Dessau Regional Court received the files. In July 2004 the court and the parties agreed upon the dates of the hearings. In September 2004 the witnesses to be heard and the experts to be involved were designated.

Between October 2004 and January 2005 altogether eleven hearings took place – five of them in January – and more than 20 witnesses were heard. Initially, the applicant had requested the court not to hold more than one hearing per week.

On 19 January 2005 the Dessau Regional Court convicted the applicant of two counts of granting undue benefit and the judge of two counts of taking a bribe. Shortly afterwards, the applicant's legal counsel ceased taking instructions from the applicant; his newly appointed lawyer then requested access to the files. On 2 March 2005 the Dessau Regional Court submitted the written judgment.

On 6 April 2005 the applicant, as one of his co-defendants had already done, lodged an appeal on points of law (comprising more than a hundred pages); he also appointed another legal counsel; proceedings against one of his co-defendants were stayed.

In May 2005 the Magdeburg Public Prosecutor decided not to file further submissions and transferred the files to the Naumburg Regional Court. In June the applicant filed further observations; in July 2005 he again requested access to the files. On 8 September 2005, following a remittal of the files on account of a reputedly missing approval, the General Public Prosecutor made his submissions.

On 12 January 2006 the Federal Court of Justice quashed the judgment and remitted the case to the Halle Regional Court. It found that it could not be established that the applicant and his co-defendant had intentionally collaborated. On 8 March 2006 the court delivered the written judgment.

d. Renewed proceedings before the Halle Regional Court

In March 2006 the Halle Regional Court contacted the parties' legal representatives in order to arrange the hearings. In June 2006 the case was assigned to the Halle Public Prosecutor; in July 2006 the Halle Public Prosecutor informed the court thereof. In September 2006, at the applicant's renewed request, the Halle Regional Court decided that three judges and two lay judges should decide upon the case.

From 22 September 2006 to 19 October 2006 seven hearings took place. On 19 October 2006 one of the lay judges died. On 25 October 2006 the Halle Regional Court therefore cancelled all further hearings.

On 13 November 2006, after having been granted access to the files, the applicant requested that the proceedings be stayed on account of their excessive length pursuant to section 206 (a) of the Code of Criminal Procedure, which presupposes a procedural impediment. On 13 December 2006, following submissions by all the parties, the Halle Regional Court rejected this request as unfounded.

By a letter dated 16 January 2007 the applicant lodged a constitutional complaint against the refusal. The same day, the Halle Regional Court decided that another chamber should decide on the case.

On 6 February 2007 the Federal Constitutional Court refused to admit the case for adjudication as being inadmissible on the ground that the decision under section 206 (a) of the Code of Criminal Procedure was an interlocutory decision which could not be challenged.

On 4 April 2007, following further submissions, the Halle Regional Court rejected the applicant's objection (Gegenvorstellung) against the refusal to stay the proceedings.

In June 2007 – the applicant had twice requested the court to schedule a hearing – it turned out that hearings could only be scheduled as of 12 September 2007. Thereafter, the applicant and his co-defendant were granted access to the files. The applicant's request to appoint a supplementary judge was rejected on 18 October 2007. A further appeal was to no avail.

Between 25 October 2007 and 17 March 2008 15 hearings took place. More than 20 witnesses were heard and expert reports were obtained.

On 17 March 2008 the Halle Regional Court acquitted the applicant and the co-defendants of both charges. It also found that he was entitled to compensation on the merits on account of the searches and the seizures and also ordered that the Treasury bear the costs of the proceedings and the applicant's necessary expenses.

On 9 June 2008 the judgment became final, the Halle Public Prosecutor having withdrawn an appeal on points of law.

On 5 November 2008 the applicant requested the Halle Regional Court to cover the costs of his legal representation in the amount of EUR 61,388.27.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

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

The Government contested that argument.

The period to be taken into consideration began on 7 February 2000 when the applicant was informed about the criminal investigations against him. The proceedings ended on 9 June 2008 when the Halle Public Prosecutor withdrew the appeal against the decision of the Halle Regional Court of 17 March 2008 acquitting the applicant of all charges. The proceedings thus lasted for about eight years and four months, at the investigation stage and at three levels of jurisdiction, including two remittals.

A. Admissibility

The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above).

Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. In particular, it finds that, in view of the importance of the case to the applicant and in spite of its complexity and the difficulties it involved not least on account of the fact that it was borderline, the national courts – in particular the Halle Regional Court following the second remittal of the case – failed to conduct the proceedings diligently.

Having regard to its case-law on the subject, the Court therefore considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

The applicant complained that he had not had an effective remedy at his disposal to complain about the length of the proceedings. He alleged a violation of Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government acknowledged that the applicant did not have at his disposal an effective remedy. They pointed out, however, that the present situation had also been taken into account in the “compensation package” which was currently being prepared at the Federal Ministry of Justice.

The Court notes that this complaint is linked to the one examined above and therefore must likewise be declared admissible.

The Court has already held that there is no effective remedy under German law capable of affording redress for the unreasonable length of criminal proceedings in cases like the present one, in which the suspect could not be found guilty of the essential offences he had been accused of (see, mutatis mutandis, Ommer v. Allemagne (no. 1), no. 10597/03, § 75, 13 November 2008, and Ommer v. Allemagne (no. 2), no. 26073/03, §§ 56-64, 13 November 2008). It takes note of the Government's submissions according to which the legislative procedure to introduce a new remedy is still under way.

Accordingly, the Court considers that the applicants did not have an effective remedy within the meaning of Article 13 of the Convention which could have expedited the proceedings or provided adequate redress for delays that had already occurred.

There has therefore been a violation of Article 13 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

The applicant claimed 2,440,000 euros (EUR) in respect of pecuniary damage on account of loss of profits – or, in the event that only delays of at least one year and three months would be recognised as exceeding the reasonable time requirement, the sum of EUR 590,000. He submitted that due to the criminal proceedings he had no longer been appointed by the Magdeburg District Court as liquidator on the same regular basis. While by 1999 he had been appointed (on average) in 41 insolvency proceedings per year, their number had amounted to only eight in 2000 and 2001 and to only three in 2003; thereafter, he had not been appointed at all. In support of his claims the applicant submitted a list of his appointments between 1999 and 2008 by five different courts. Without submitting further evidence, he also declared that, on average, he made a profit of EUR 10,000 to EUR 20,000 per case. In respect of EUR 100,000 of the sum claimed, the applicant submitted that, in 2006, his request with the Hannover District Court to be put on the list of liquidators eligible for singular proceedings was refused on account of the still pending criminal proceedings.

The Government contested the damages claimed. In their view, they were based on mere speculation and lacked the required substantiation and proof. In support of their view, they presented different numbers as regards the proceedings the applicant had been assigned to and emphasised that he had not indicated the number of proceedings in which he had been appointed again after his acquittal. They also submitted that he failed to further substantiate the alleged gains in the amount of EUR 10,000 to 20,000 per case, which, moreover, were gains of the civil law association he belonged to. Finally, they pointed out that, in view of the fact that the applicant never lodged a claim against his non-appointment, as foreseen in section 23 of the Introductory Act to the Judiciary Act, his claims for losses in any event lacked the required causal link and submitted that the applicant had filed a claim for public liability which was still pending before the national courts.

The Court finds that, even assuming the applicant's figures concerning his appointments by the Magdeburg District Court were correct, he thereby did not demonstrate that he would have made the profits claimed had the criminal proceedings been conducted more speedily. The applicant failed to present to the court a comprehensive overview of all his assignments before, during and after his criminal proceedings and his respective profits – which might have allowed it to assess the possible impact of the criminal proceedings on his gains and the number of appointments by the Magdeburg District Court. In any event, there are also other possible explanations for the decrease. In this respect, the court also notes that, according to the statistics submitted by the applicant, he had been appointed by other courts during the relevant period. It also observes that, under German law, there is no right to be (re-)appointed as liquidator – the decision to entrust a liquidator with a case rests with the national courts – and that the applicant never challenged the decisions not to appoint him in a particular case. Under these circumstances, the Court finds that the losses claimed by the applicant indeed remain speculative. This also applies insofar as he claimed EUR 100,000 on account of the fact that, in 2006, the Hannover District Court refused to put him on the list of liquidators eligible for singular cases as a causal link with the length of the proceedings cannot be established. The Court therefore dismisses the applicant's claims for pecuniary damage.

The applicant did not claim any compensation for non-pecuniary damage. Accordingly, there is no call to award him any sum on that account for the violations found.

B. Costs and expenses

The applicant, relying on documentary evidence, claimed a total of EUR 373,022.98 corresponding to the fees of the lawyers he appointed in the proceedings before the domestic courts (this sum does not include the costs in the amount of EUR 61,388.27 claimed by the applicant at the national level). In addition, he claimed costs for legal representation in the amount of EUR 6,165.84 incurred for the request to stay the proceedings, of EUR 15,927.50 incurred for lodging the constitutional complaint and of EUR 9,078.50 incurred in the proceedings before this Court.

The Government contested these claims. With respect to the costs of the proceedings in the domestic courts, they argued that there was no causal link between the length of those proceedings and the costs claimed, which, in any event, were excessive, given that they were five to seven times as high as the costs to be accorded by law. As regards the costs claimed for the constitutional complaint, they pointed out that this was not an effective remedy and, in the present case, moreover, had been clearly inadmissible.

According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court, having regard to the material before it, considers that it is not in a position to calculate the exact amount of additional costs accrued because of the length of the proceedings only. However, seeing that in length-of-proceedings cases the protracted examination of a case beyond a “reasonable time” involves an increase in the applicant's costs (see, among other authorities, Maurer v. Austria, no. 50110/99, § 27, 17 January 2002; Sürmeli v. Germany [GC], no. 75529/01, § 148), the Court, having regard to the sums awarded in similar cases, awards the applicant EUR 5,000 under this head, plus any tax that may be chargeable. As regards the costs claimed for the request to stay the proceedings, the Court considers it reasonable to award the sum of EUR 2,000 plus any tax that may be chargeable. It dismisses the applicant's claim for costs incurred for lodging a constitutional complaint. As to the costs incurred in the proceedings before this Court, the Court, having regard to its case-law and making its own assessment, awards the applicant EUR 2,000, plus any tax that may be chargeable.

C. Default interest

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Declares the application admissible;

Holds that there has been a violation of Article 6 § 1 of the Convention;

Holds that there has been a violation of Article 13 of the Convention;

Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 9,000 (nine thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 25 March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Karel Jungwiert
Deputy Registrar President