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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 16052/90

Kurt Heydasch

against

Germany

REPORT OF THE COMMISSION

(adopted on 6 April 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 5). . . . . . . . . . . . . . . . . . . . . . . . 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6 - 14) . . . . . . . . . . . . . . . . . . . . . . . 2

III. OPINION OF THE COMMISSION

(paras. 15 - 27). . . . . . . . . . . . . . . . . . . . . . . 4

A. Complaint declared admissible

(para. 15) . . . . . . . . . . . . . . . . . . . . . . . 4

B. Point at issue

(para. 16) . . . . . . . . . . . . . . . . . . . . . . . 4

C. The alleged violation of Article 6 para. 1

of the Convention

(paras. 17 - 26) . . . . . . . . . . . . . . . . . . . . 4

CONCLUSION

(para. 27). . . . . . . . . . . . . . . . . . . . . . . . . . 6

DISSENTING OPINION OF SIR BASIL HALL. . . . . . . . . . . . . . . . 7

DISSENTING OPINION OF MRS. J. LIDDY . . . . . . . . . . . . . . . . 7

APPENDIX: DECISION ON THE ADMISSIBILITY OF THE APPLICATION . . . . 8

I. INTRODUCTION

1. The present report concerns Application No. 16052/90 by

Kurt Heydasch against the Federal Republic of Germany, introduced on

19 October 1989 and registered on 25 January 1990.

The applicant, born in 1917, is a German national and resident

in Hamburg. He is a businessman by profession. Before the Commission

he is represented by Mr. V. Westphal, a lawyer practising in Hamburg.

The Federal Republic of Germany are represented by their Agent,

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

Justice.

2. The application was communicated to the Government on

7 January 1991. On 27 May 1991 the application was referred to the

First Chamber. Following an exchange of memorials, the complaint

relating to the length of proceedings (Article 6 para. 1 of the

Convention) was declared admissible on 9 December 1991. The decision

on admissibility is appended to this Report.

By letter of 6 July 1992 the Government requested the Commission

to take a decision under Article 30 para. 1 (b) of the Convention,

considering that, by the decision of the Public Prosecutor's Office to

discontinue the proceedings, the matter was resolved. The Commission

finds no ground to proceed under Article 30 para. 1 of the Convention.

3. 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 in accordance with

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

present:

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

J.A. FROWEIN

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

4. In this report the Commission states its opinion as to whether

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

Government.

5. 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

6. On 16 January 1984 the Hamburg Fiscal Investigation Office

(Steuerfahndungsstelle) started investigations against the applicant

on the suspicion of having evaded taxes concerning his capital abroad.

The Office had been informed, apparently by the applicant's brother,

that the applicant had a place of residence relevant for tax purposes

in Hamburg, contrary to his declaration in 1975 that he had moved to

Freeport/Bahamas. If so, he would in principle have had to pay income

tax in respect of his capital gains abroad.

7. On 4 April 1984 the applicant filed a declaration with the

Investigation Office that his place of residence was in Costa Rica.

8. On 21 September 1984 the Investigation Office formally instituted

preliminary investigations against the applicant. It transferred the

proceedings to the Hamburg Public Prosecutor's Office (Staatsanwalt-

schaft) on 27 September 1984.

9. On 26 November 1984 the Hamburg District Court (Amtsgericht)

issued a warrant of arrest. The District Court found that, according

to the investigations of the Fiscal Investigation Office, there was a

strong suspicion that the applicant had evaded tax between 1974 and

1982 in that he had pretended not to have a place of residence and thus

no taxable income in the Federal Republic of Germany.

10. The applicant was arrested on 22 January 1985 and detained on

remand. On 15 February 1985 his detention was suspended on bail,

apparently in view of his bad health. On 7 November 1985 the Hamburg

District Court set the search warrant aside for lack of reasonable

suspicion. The District Court found, that although the applicant

continued to have a place of residence in Germany, there was no

sufficient evidence of taxable income abroad.

11. On 16 January 1988 the applicant filed a hierarchical complaint

(Dienstaufsichtsbeschwerde) with the Hamburg Public Prosecutor's Office

about the continuing proceedings and also complained about the public

prosecutor and the two investigators involved in the proceedings

against him.

12. On 21 June 1988 the applicant requested the Public Prosecutor's

Office to discontinue the investigations against him for lack of

suspicion. On 18 July and 18 August 1988 he filed complaints about the

further conduct of the proceedings. On 23 August 1988 the Public

Prosecutor's Office refused to discontinue the proceedings on the

ground that there was still a reasonable suspicion of a criminal

offence.

13. On 11 May 1989 the Hamburg District Court acquitted the applicant

of defamation in relation to his allegations of corruption in his

complaint of 16 January 1988. The District Court considered that he

had acted in protection of his own interests.

14. On 10 April 1992 the Hamburg Public Prosecutor's Office

discontinued the criminal proceedings against the applicant under

S. 153 para. 1, first sentence, of the Code of Criminal Procedure

(Strafprozeßordnung), according to which proceedings may be

discontinued in cases of, if proven, minor guilt. The Office

considered that the length of the proceedings and the statutory time-

limit coming nearer outweighed the public interest in prosecution.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

15. The Commission has declared admissible the applicant's complaint

that his case was not heard within a reasonable time.

B. Point at issue

16. 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

a. The applicability of Article 6 para. 1 (Art. 6-1)

17. 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 ..."

18. The Government submit that the requirement of "reasonable time"

in Article 6 para. 1 (Art. 6-1) does not apply to preliminary

investigations by the Public Prosecutor's Office "within a reasonable

time", but only to proceedings before the trial court, although, in

cases of court proceedings, the relevant period to be considered could

start at an earlier date. Where a person suspected of a criminal

offence was arrested and detained on remand, Article 5 para. 3, second

sentence, (Art. 5-3) of the Convention secured the right to trial

within a reasonable time or to release pending trial.

19. The Commission observes that the investigations against the

applicant concerned charges of tax evasion, which are of a criminal

nature within the meaning of Article 6 (Art. 6) of the Convention.

20. The Commission recalls that, in criminal matters, the "reasonable

time" referred to in Article 6 para. 1 (Art. 6-1) begins to run as soon

as a person is "charged"; this may occur on a date prior to the case

coming to the trial court, such as the date of arrest, the date when

the person concerned was officially notified that he would be

prosecuted or the date when preliminary investigations were opened.

"Charge", for the purposes of Article 6 para. 1 (Art. 6-1), may be

defined as "the official notification given to an individual by the

competent authority of an allegation that he has committed an offence",

a definition that also corresponds to the test whether "the situation

of the [suspect] has been substantially affected" (cf. Eur. Court H.R.,

Eckle judgment of 15 July 1982, Series A no. 51, p. 33, para. 73 with

further references). The official notification may in some instances

take the form of other measures which carry the implication of such an

allegation and which likewise substantially affect the situation of the

suspect (Eur. Court H.R., Foti judgment of 10 December 1982, Series A

no. 56, p. 18, para. 52).

21. In the present case, preliminary investigations on the suspicion

of tax evasion were instituted against the applicant in September 1984

and subsequently conducted by the Hamburg Public Prosecutor's Office.

In 1992 the Public Prosecutor's Office discontinued the proceedings

against him. The criminal proceedings against him thus never attained

the trial stage.

22. The Commission cannot share the restrictive view proposed by the

respondent Government. The Commission considers that the aim of

Article 6 para. 1 (Art. 6-1) is to protect the individual against the

prejudice created by criminal proceedings exceeding a reasonable time.

The specific rights under Article 5 para. 3 (Art. 5-3) of a person

arrested or detained in the context of criminal proceedings to a trial

within a reasonable time or to release pending trial are intended to

limit the length of a person's detention, and not to prevent an

unreasonable length of criminal proceedings as such. In order to

afford a practical and effective protection under Article 6 para. 1

(Art. 6-1), the right, in criminal matters, to a hearing within a

reasonable time covers the initial period of investigations to the

extent that the person concerned was charged within the meaning of the

principles set out above, irrespective of whether his case has come

before a trial court or not (cf., Eur. Court H.R., Deweer judgment of

27 February 1980, Series A no. 35, pp. 21 et seq., paras 41-47; Viezzer

judgment of 19 February 1991, Series A no. 196-B, pp. 19 et seq.,

paras. 9, 14-17).

b. The relevant period

23. The period to be taken into consideration started at the latest

on 21 September 1984 when the Hamburg Fiscal Investigation Office

formally opened preliminary investigations against the applicant. It

ended on 10 April 1992 when the Hamburg Public Prosecutor's Office

discontinued the proceedings against him. The proceedings thus lasted

more than seven and a half years.

c. The reasonableness of the length of the proceedings

24. 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).

25. The respondent Government submit that the investigations against

the applicant were particularly difficult on the ground that they

involved rogatory proceedings in order to establish the applicant's

capital gains abroad.

26. The Commission considers that the investigations were complex to

some extent due to the nature of charges against the applicant. There

is no indication that the applicant contributed to the delay of the

proceedings. Even taking into account the difficulties caused by the

fact that the applicant had apparently foreign sources of income and

used different places of residence, the Commission finds that the

proceedings against him, which lasted more than seven and a half year

at the stage of investigations, exceeded the "reasonable time" referred

to in Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

27. The Commission concludes, by 9 votes to 2, 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)

DISSENTING OPINION OF SIR BASIL HALL

This case differs from comparable cases considered by the Court

and the Commission in that the investigation of a suspected offence has

been terminated without any charge against the applicant having been

formulated. Furthermore a ground for the termination was the length

of time the investigation had so far taken.

In these circumstances I do not consider that there has been a

violation of the right conferred by Article 6 that in the determination

of a criminal charge against him everyone is entitled to a hearing

within a reasonable time.

DISSENTING OPINION OF MRS. J. LIDDY

In this case the Hamburg Public Prosecutor's Office decided on

10 April 1992 against prosecuting the applicant. It is true that the

applicant was under suspicion for several years, but no trial against

him actually took place. I am unaware of any case where the

requirement of trial within a reasonable time has been found to have

been violated in circumstances where no trial was held. I agree with

the Government's submission that the requirement of trial within a

reasonable time in Article 6 does not apply to preliminary

investigations by the Public Prosecutor's Office but only to

proceedings before the trial court, although, in cases of court

proceedings, the relevant period to be considered could start at an

earlier date.

Accordingly I have voted against a finding of violation in this

case.

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HEYDASCH v. GERMANY

HEYDASCH v. GERMANY

LEXI