Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 13882/88

Siegfried Gritschneder

against

Germany

REPORT OF THE COMMISSION

(adopted on 30 June 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 6). . . . . . . . . . . . . . . . . . . . . . . . 1

II. ESTABLISHMENT OF THE FACTS

(paras. 7 - 25) . . . . . . . . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

(paras. 26 - 43). . . . . . . . . . . . . . . . . . . . . . . 5

A. Complaint declared admissible

(para. 26) . . . . . . . . . . . . . . . . . . . . . . . 5

B. Point at issue

(para. 27) . . . . . . . . . . . . . . . . . . . . . . . 5

C. The alleged violation of Article 6 para. 1

of the Convention

(paras. 28 - 43) . . . . . . . . . . . . . . . . . . . . 5

CONCLUSION

(para. 43) . . . . . . . . . . . . . . . . . . . . . . . 7

APPENDIX I: PARTIAL DECISION ON THE ADMISSIBILITY

OF THE APPLICATION . . . . . . . . . . . . . . . . 8

APPENDIX II: FINAL DECISION ON THE ADMISSIBILITY

OF THE APPLICATION . . . . . . . . . . . . . . . .13

I. INTRODUCTION

1 The present report concerns Application No. 13882/88 by

Siegfried Gritschneder against the Federal Republic of Germany,

introduced on 13 September 1987 and registered on 20 May 1988.

2 The applicant, born in 1940, is a German national and resident

in Wuppertal. He is a jurist.

The Federal Republic of Germany are represented by their Agent,

Mr. J. Meyer-Ladewig, Ministerialdirigent, of the Federal Ministry of

Justice.

3 On 2 December 1991 the Commission communicated the applicant's

complaint about the length of criminal proceedings against him.

Following an exchange of memorials, the complaint relating to the

length of proceedings (Article 6 para. 1 of the Convention) was

declared admissible on 8 September 1992. The decision on admissibility

is appended to this Report.

4 Having noted that there is no basis upon which a friendly

settlement within the meaning of Article 28 para. 1 (b) of the

Convention can be secured, the Commission (First Chamber), after

deliberating, adopted this Report on 30 June 1993 in accordance with

Article 31 para. 1 of the Convention, the following members being

present:

MM. F. ERMACORA, Acting President of the First Chamber

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

5 In this report the Commission states its opinion as to whether

the facts found disclose a violation of the Convention by the German

Government.

6 The text of the Report is now transmitted to the Committee of

Ministers of the Council of Europe, in accordance with

Article 31 para. 1 of the Convention.

II. ESTABLISHMENT OF THE FACTS

7 In 1983 criminal proceedings were instituted against the

applicant and his father on the suspicion of defamation.

8 At the end of December 1983 or beginning of January 1984 the

Wuppertal Police Office (Kreispolizeibehörde) summoned the applicant

to be heard on the charges against him. The applicant refused any

statements before police authorities and announced written submissions.

9 On 19 April 1984 the Augsburg Public Prosecutor's Office

(Staatsanwaltschaft) preferred the indictment (Anklageschrift) against

the applicant and his father. They were charged with having made

defamatory remarks about the former custodian of the applicant's

deceased uncle and staff of the Neuburg District Court, in particular

the judicial assistant (Rechtspfleger) in charge of custody matters.

In the ensuing proceedings the applicant was assisted by counsel.

10 On 27 February 1985 the applicant and his father, the Vice

President of the Augsburg Regional Court (Landgericht), the President

of the Neuburg District Court (Amtsgericht), counsel for the custodian

and the legal officer concerned agreed upon a settlement concerning all

disputes, including the hierarchical complaints (Dienstaufsichts-

beschwerden) brought by the applicant and his father. The agreement

provided for termination of the criminal proceedings by withdrawal of

the charges (Rücknahme der Strafanträge). In March 1985 the applicant

withdrew his consent to the settlement.

11 In April 1985 the applicant and his father lodged a petition with

the Bavarian Diet (Landtag). In this context the criminal files were

sent to the President of the Augsburg Regional Court and subsequently

to the President of the Munich Court of Appeal (Oberlandesgericht).

The files were returned end of September 1985. In the meantime the

case had been assigned to another judge at the Neuburg District Court.

In January 1986 the applicant asked the District Court about the state

of the proceedings.

12 On 16 January 1986 the Neuburg District Court committed the

applicant and his father for trial (Eröffnung des Hauptverfahrens).

13 On 14 April 1986 the Neuburg District Court, following hearings

on 24 and 26 March, 7 and 14 April 1986, convicted the applicant and

his father of defamation on two counts and imposed fines of DM 2,000

each, namely fifty daily rates à DM 40.

14 The District Court, having heard several witnesses, found that

the applicant and his father, in four letter adressed to the President

of the Munich Court of Appeal, the President of the Augsburg Regional

Court and the Munich Court of Appeal, respectively, had wrongly

reproached the former custodian of the applicant's deceased uncle and

staff of the Neuburg District Court, in particular the judicial

assistant in charge of custody matters, with misuse of powers and

irregularities, inter alia, in respect of the sale of a collection of

coins. The defamatory remarks concerned were not justified for

protection of the applicant's and his father's legitimate interests

(Wahrnehmung berechtigter Interessen). In view of the circumstances

of the case they were inappropriate and disproportionate means to

clarify the allegations. Several requests by the applicant and his

father to take further evidence were dismissed.

15 The judgment was served on 16 June 1986.

16 On 30 January 1987 the Augsburg Regional Court (Landgericht),

upon the appeals (Berufungen) lodged by the applicant and his father,

quashed the District Court's judgment of 14 April 1986 and acquitted

them. The Regional Court, proceeding on the basis of the same facts

as the District Court, considered that the defamatory remarks in

question were justified as means to protect legitimate interests.

Despite official information to the contrary, the accused had been

convinced of the alleged irregularities at the Neuburg District Court

to the disadvantage of the applicant's deceased uncle. As relatives

and heirs, they could not be blamed for having addressed themselves to

all possible authorities in order to have the alleged criminal offences

prosecuted.

17 The judgment was served upon the Public Prosecutor's Office on

10 March 1987. Following several reminders, it was served upon the

applicant on 19 June 1987.

18 On 22 October 1987 the Bavarian Court of Appeal, upon the appeal

on points of law (Revision) of the Augsburg Public Prosecutor's Office,

quashed the judgment of the Augsburg Regional Court. The establishment

of the material facts was upheld. The case was sent back to another

Chamber at the Augsburg Regional Court. The Court of Appeal considered

that the applicant could not claim to have protected his legitimate

interests after official information that his defamatory remarks were

incorrect. In December 1987 the files were sent back to the Augsburg

Regional Court.

19 On 7 March 1988 the Federal Constitutional Court (Bundesver-

fassungsgericht) declared inadmissible the applicant's and his father's

constitutional complaint (Verfassungsbeschwerde) concerning the

judgment of the Bavarian Court of Appeal of 22 October 1987 and the

delay of the criminal proceedings. The Constitutional Court found in

particular that, having regard to the subsidiary character of a

constitutional complaint, the applicant had to raise his complaint

about the length first in the proceedings as such, especially at the

trial and possibly in his appeal on points of law. It was first for

the competent courts to establish whether or not proceedings had lasted

unreasonably long, and to draw the necessary consequences.

20 On 29 July 1988 another Chamber of the Augsburg Regional Court

conducted the hearing on the appeals of the applicant and his father.

In the course of the hearing the Public Prosecutor's Office proposed

to discontinue the proceedings against the applicant in view of his

minor guilt. The applicant did not agree. The proceedings against the

applicant's father were discontinued.

21 On 29 July 1988, following the hearing, the Regional Court

dismissed the applicant's appeal against the judgment of 14 April 1986.

The fine was reduced to DM 1400 (35 daily rates à DM 40).

22 The Regional Court found that the applicant had made defamatory

remarks about the above-mentioned persons, the truth of which he had

failed to prove. The Regional Court considered that the first two

letters, except for the offensive terms in the first letter, were

justified on the ground that the applicant and his father had acted to

protect their legitimate interests. After these first letters, the

applicant had been informed by the Director of the Neuburg District

Court about the incorrectness of his allegations, and about the

comments of the persons concerned. Moreover, he had received the

decision of the Public Prosecutor's Office to discontinue the

prosecution of these persons. Following this official information by

the competent authorities, he could no longer claim to have acted in

order to protect his legitimate interests.

23 In fixing the sentence the Regional Court noted that the

proceedings had been conducted very slowly, partly due to the

applicant's numerous submissions. Balancing all aggravating and

mitigating circumstances, in particular its findings as regards the

first two letters, the Regional Court found a fine calculated on the

basis of 35 daily rates to be appropriate and sufficient.

24 On 15 March 1989 the Bavarian Court of Appeal dismissed the

applicant's appeal on points of law against the Regional Court's

judgment of 29 July 1988. The judgment was served on 5 April 1989.

25 On 27 September 1989 the Federal Constitutional Court refused to

admit the applicant's constitutional complaint on the ground that it

offered no prospect of success. The Constitutional Court considered

in particular that the judgments complained of could not be objected

to under constitutional law. The reasoning of the trial courts did not

disclose any arbitrariness. The Regional Court had taken the length

of the proceedings duly into account when considering all relevant

circumstances in fixing the sentence.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

26 The Commission has declared admissible the applicant's complaint

that his case was not heard within a reasonable time.

B. Point at issue

27 The only point at issue is whether the length of the proceedings

complained of exceeded the "reasonable time" referred to in Article 6

para. 1 (Art. 6-1) of the Convention.

C. The alleged violation of Article 6 para. 1 (Art. 6-1)

of the Convention

28 Article 6 para. 1 (Art. 6-1) of the Convention includes the

following provision:

"In the determination of ... any criminal charge against him,

everyone is entitled to a ... hearing within a reasonable time

by (a) ... tribunal ..."

29 The Government considered that there was no indication that the

length of the proceedings was in breach of Article 6 para. 1

(Art. 6-1). The applicant objected thereto.

a. The relevant period

30 The period to be taken into consideration started at the latest

in December 1983/January 1984 when the applicant was summoned to be

heard upon the charge against him. It ended on 5 April 1989, when the

decision of the Federal Court of Justice dismissing his appeal on

points of law dated 15 March 1989 was served upon him. The proceedings

in the criminal courts thus lasted approximately five years and three

months, whereas the proceedings before the Federal Constitutional Court

took a further five months.

b. The reasonableness of the length of the proceedings

31 The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular

circumstances of the case and having regard to the complexity of the

case, the conduct of the parties and the conduct of the authorities

dealing with the case. In this instance the circumstances call for an

overall assessment (see Eur. Court H.R., Ficara judgment of

19 February 1991, Series A no. 196-A, p. 9, para. 17).

32 The Government attribute the length of the proceedings to the

complexity of the case and the conduct of the applicant. They submit

in particular that the applicant had started a complex fight against

misuse of powers by Bavarian judicial authorities which complicated the

criminal proceedings against him. He refused to settle the disputes

out of court and did not agree to a discontinuation of the proceedings

because of his minor guilt.

33 As far as the complexity of the case is concerned, the Commission

notes that the proceedings concerned charges of defamation, namely

remarks contained in several letters drafted by the applicant. The

proceedings did not raise any complex factual problems or difficult

legal issues.

34 The Commission considers that the applicant's attitude towards

the proceedings and the Bavarian judicial authorities had no impact on

the complexity of the case as such.

35 As regards the applicant's conduct in the course of the

proceedings the Commission notes that the Augsburg Regional Court, in

its judgment of 29 July 1988, stated that some delay was caused by his

repeated submissions. However, the Commission finds that Article 6

(Art. 6) of the Convention did not require the applicant to co-operate

with the judicial authorities (cf., Eur. Court H.R., Eckle judgment of

15 July 1982, Series A no. 50, p. 36, para. 82). Moreover, he was

under no obligation to agree to a termination of the proceedings

excluding a determination of the charge against him.

36 Furthermore, the Commission notes that the applicant made use of

the remedies available to him in the criminal proceedings and had

resort to hierarchical complaints and other petitions. Though no

reproach can be levelled against him for having made full use of the

remedies available to him under domestic law, such conduct constitutes

an objective fact, not capable of being attributed to the respondent

State, which is to be taken into account when determining the

reasonableness of the length of proceedings (Eur. Court H.R., Eckle

judgment, loc. cit.).

37 The Commission considers that the applicant's conduct caused some

delay. However, it cannot alone justify the overall length of the

criminal proceedings against him.

38 As to the conduct of the authorities, the Government submit that

the question of undue delays only arises in respect of the proceedings

at first instance. The preliminary investigations and the appeal

proceedings subsequent to the District Court's judgment of

14 April 1986 were terminated within periods of six to nine and a half

months. The attempts of the Augsburg Regional Court to find an

arrangement with the applicant and his father had taken ten months, a

period which could not be attributed to the respondent Government.

Furthermore, the criminal files had to be sent to other authorities

dealing with petitions lodged by the applicant. Some unavoidable delay

was caused by the fact that the competent judge dealing with the

applicant's case changed.

39 The Commission has examined the conduct of the German judicial

authorities in the course of the criminal proceedings as a whole.

40 The Commission notes that the Augsburg Regional Court, in its

judgment of 29 July 1988, accepted that the case was slowly dealt with

by the competent authorities.

41 The Commission considers in particular that the intention of the

judicial authorities to come to an arrangement with the applicant and

his father does not sufficiently explain the delay in the period

between the bill of indictment of 19 April 1984 and the decision of the

Neuburg District Court to commit the applicant for trial

(16 January 1986), i.e. one year and nine months. Moreover, it is not

obvious that the second round of appeal proceedings before the Regional

Court and the Court of Appeal could not be terminated in less than nine

and seven months, respectively.

42 In the light of all the circumstances in the present case, the

Commission cannot regard as "reasonable" a lapse of time of more than

five years to determine the charges of defamation against the

applicant.

CONCLUSION

43 The Commission concludes by eight votes to two that there has

been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary Acting President

to the First Chamber of the First Chamber

(M.F. BUQUICCHIO) (F. ERMACORA)

Menu

GRITSCHNEDER v. GERMANY

GRITSCHNEDER v. GERMANY

LEXI