Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34392/97

by Burkhard LEO

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 August 1996 by

Burkhard LEO against Germany and registered on 8 January 1997 under

file No. 34392/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1952, is a German national and resident

in Kiel. He is a lawyer by profession.

In 1984 criminal proceedings were instituted against the

applicant and others on suspicion of fraud. Further charges of fraud

as well as of swearing a false affidavit in connection with the

whereabouts his child - following divorce and transfer of the right of

custody to the child's mother - were raised in January and July 1985,

respectively.

In 1985 the Kiel District Court (Amtsgericht) committed the

applicant for trial and joined the proceedings regarding the above

charges. It fixed a date in December 1985 for the opening of the trial

hearings. The applicant having suffered a car accident, this hearing

was postponed until 12 May 1986. At that date the proceedings were

postponed sine die on account of the fact that one of the accused had

absconded.

On 22 November 1987 the District Court severed the proceedings

so far as the charges of January 1995 were concerned and conducted

trial hearings on seventeen days between 7 March and 10 June 1988. At

the close of the trial, the applicant was convicted of one count of

fraud in conjunction with having simulated a criminal offence

(Vortäuschen einer Straftat), as well as two counts of continuing acts

of fraud (fortgesetzter Betrug), one of them in conjunction with

continuing acts of unlawful coercion. A fine amounting to DEM 3,600

was imposed upon him. The Court granted him the possibility to pay the

fine, and subsequently the costs of the proceedings, in monthly

instalments of DEM 100.

Both the applicant and the Public Prosecutor's Office

(Staatsanwaltschaft) lodged appeals with the Kiel Regional Court

(Landgericht).

In the first instance proceedings regarding the remaining

charges, the Kiel District Court held trial hearings against the

applicant and three co-accused on seventy-seven days between 7 May 1990

and 10 May 1991.

On 30 September 1990 the applicant was arrested at the Frankfurt

airport on the basis of an arrest warrant issued by the District Court

on 29 September 1990. Following his successful appeal, the arrest

warrant was set aside and he was released on 19 October 1990.

On 10 May 1991 the applicant was convicted of fraud committed

jointly with other persons (gemeinschaftlicher Betrug), of continuing

acts of fraud committed jointly with other persons (fortgesetzter

gemeinschaftlicher Betrug), the latter in conjunction with incitement

to swear a false affidavit (Anstiftung zur Falschaussage), as well as

of having repeatedly raised false suspicion (falsche Verdächtigung) and

of the offence of swearing a false affidavit. The District Court fixed

a cumulative sentence of one year and three months' imprisonment. The

period of his detention on remand was to be counted towards the

sentence. The remainder of his sentence was suspended on probation.

In its judgment comprising almost 300 pages, the District Court,

having heard the applicant, the co-accused and numerous witnesses,

partly in proceedings under letters rogatory, found that the applicant,

in part together with the co-accused had become involved in the above

series of criminal offences due to problems in the context of his

divorce proceedings and due to professional and financial problems.

Again, both the applicant and the Public Prosecutor's Office

lodged appeals with the Kiel Regional Court.

On 16 September 1994 the Kiel Regional Court joined the appeal

proceedings regarding all cases.

The Regional Court, comprised of Presiding Judge B., Judge M. and

two lay assessors, conducted trial hearings on forty-six days between

30 August 1994 and 13 July 1995.

In the course of the appeal proceedings, the applicant repeatedly

challenged the judges for bias. On 17 May 1995 the Regional Court

dismissed the applicant's motions of 8 and 9 May to challenge Judge B.

for bias. The Court considered that the applicant's submissions,

namely contacts between his divorced wife and Judge B.'s wife or

Judge B.'s conversation with the Public Prosecutor on the possibility

of a discontinuation of the proceedings, did not disclose any

reasonable doubt as to Judge B.'s impartiality. Moreover, Presiding

Judge B.'s conduct of the proceedings did not justify the conclusion

that Judge B. himself was biased.

On 13 July 1995 the Regional Court amended the District Court's

judgments of 10 June 1988 and 10 May 1991 to the extent of convicting

the applicant of two counts of fraud committed jointly with other

persons, a further count of fraud committed jointly with other persons,

and a count of fraud committed jointly with other persons in

conjunction with the offence of false affidavit and incitement to swear

a false affidavit, as well as another count of swearing a false

affidavit. The Regional Court sentenced the applicant to one year's

imprisonment on probation. The remainder of the respective appeals was

dismissed.

In its judgment comprising 252 pages, the Regional Court assessed

the relevant facts on the basis of the applicant's statements and the

evidence heard in court.

As regards the applicant's repeated requests in the course of the

appeal proceedings that his prosecution be discontinued on account of

the length of the proceedings, the Regional Court referred to the case-

law of the Federal Constitutional Court (Bundesverfassungsgericht) that

an accused is entitled to a hearing within a reasonable time, pursuant

to Article 2 of the German Basic Law (Grundgesetz) and the rule of law

(Rechtsstaatsprinzip). In very exceptional cases, an excessive length

of proceedings could constitute a procedural bar. However, according

to the case-law of the Federal Court of Justice (Bundesgerichtshof),

an excessive length of the proceedings could, as a rule, be taken into

account when fixing the sentence.

In applying these criteria, the Regional Court listed the steps

taken in the proceedings against the applicant, from the information

about the first charges in June 1984 and throughout the two sets of

first instance proceedings as well as the appeal proceedings. It

considered that, in the course of the appeal proceedings, the applicant

had made use of his defence rights with a view to delaying the

proceedings and forcing their discontinuation. On the whole, the

proceedings had lasted very long, and, considering the burden upon the

applicant, too long. Thus, the judicial authorities had to be held

responsible for delays amounting to altogether six years. Weighing all

the circumstances, the Regional Court reached the conclusion that the

overall length was not unreasonable to such an extent that the

proceedings had to be discontinued. Rather, the Court took the

unreasonable length into account when fixing the sentences for the

various offences at issue. As regards the first of the separate

offences, namely the two counts of fraud committed jointly with other

persons, the Court, considering the seriousness of the offences and the

aggravating and mitigating circumstances relating to the applicant's

situation, fixed a fine of sixty daily rates (Tagessätze) which it

reduced by half on account of the unreasonable length of the

proceedings. The Court proceeded likewise in respect of the other

offences. When fixing the cumulative sentence, the Regional Court,

having again regard to the length of the proceedings, reduced the sum

of the above separate sentences, i.e. one year and six months'

imprisonment, to one year's imprisonment. The execution of this

sentence was suspended on probation.

On 10 May 1996 the Schleswig Holstein Court of Appeal

(Oberlandesgericht) dismissed the applicant's appeal on points of law

(Revision).

On 14 August 1996 the Federal Constitutional Court refused to

entertain the applicant's constitutional complaint (Verfassungs-

beschwerde).

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

that he did not have a hearing within a reasonable time.

2. The applicant further complains under Article 6 para. 1 of the

Convention that he did not have a fair hearing before an impartial

tribunal. In this respect he refers in particular to the contacts

between his divorced wife and the wife of the Presiding Judge B.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention about the length of the criminal proceedings against him.

Article 6 para. 1 (Art. 6-1) provides, insofar as relevant, as

follows:

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

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

time by an independent and impartial tribunal."

The Commission considers that the relevant period started in 1984

when the first charges were brought against the applicant. The final

decision in the criminal proceedings as such was rendered by the

Schleswig Holstein Court of Appeal on 16 May 1996, i.e. twelve years

later. The Federal Constitutional Court rejected the applicant's

constitutional complaint on 14 August 1996.

In the present case, the question arises whether or not the

applicant can still claim to be a victim within the meaning of

Article 25 (Art. 25) of the Convention of a violation of his right to

a hearing within a reasonable time, as guaranteed by Article 6 para.

1 (Art. 6-1).

The Commission recalls that an applicant can no longer claim to

be a victim of the failure to observe the "reasonable time" requirement

in Article 6 para. 1 (Art. 6-1) if the national authorities have

acknowledged either expressly or in substance the breach of that

provision and if redress has been given (cf. Eur. Court HR, Eckle v.

Germany judgment of 15 July 1982, Series A no. 51, pp. 30-31, para.

66; No. 10232/83, Dec. 16.12.83, D.R. 35, p. 213; No. 13020/87, Dec.

13.4.88, D.R. 56 p. 264).

In the present case, the Kiel Regional Court, in its judgment of

13 July 1995, expressly acknowledged that the length of the criminal

proceedings against the applicant had exceeded a reasonable time. The

Court noted in detail that the judicial authorities were responsible

for delays amounting to six years. Moreover, in order to give redress,

the Court reduced by half the sentences fixed with regard to the

several offences at issue and also reduced by a third the cumulative

sentence.

The Commission is therefore of the opinion that the German

authorities have, in substance, acknowledged a breach of Article 6

para. 1 (Art. 6-1) of the Convention. The Commission further considers

that the mitigation of the sentence accorded on account of the length

of the proceedings is considerable and offers redress for the violation

complained of.

It follows that the applicant can no longer claim to be a victim

of a violation of his right under Article 6 para. 1 (Art. 6-1) of the

Convention to a hearing within a reasonable time.

This part of the application is, therefore, manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. As to the applicant's complaint about the alleged lack of

impartiality of the Presiding Judge B. at the Kiel Regional Court, the

Commission has had regard to the relevant criteria established in the

case-law of the Convention organs (Eur. Court HR, Hauschildt v. Denmark

judgment of 24 May 1989, Series A no. 154, p. 21, para. 46; Fey

v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12,

para. 28). The Commission, having regard to the Regional Court's

decision of 17 May 1995, finds that the applicant's submissions

concerning in particular contacts between his divorced wife and the

wife of Judge B. cannot suffice to bear out a charge of bias.

Considering the circumstances of the case as a whole, the

Commission finds no appearance of a violation of the applicant's right

to a hearing by an impartial tribunal under Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that this part of the application is likewise

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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LEO v. GERMANY

LEO v. GERMANY

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