Lexploria

Application No. 14773/89

by U.L.

against the Federal Republic of Germany

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 July 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second 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 3 January 1989 by

U.L. against the Federal Republic of Germany and registered on 15 March

1989 under file No. 14773/89;

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 is a German citizen, born in 1931 and living in St.

Augustin, near Bonn. He is represented by Prof. G. Laule, a lawyer in

Frankfurt.

It follows from the parties' submissions that the applicant, who

is the chief representative of the treasurer of the Christian

Democratic Party (Christlich-Demokratische Union, hereafter referred

to as CDU), was involved in financial transactions serving to finance

the CDU. Since about 1976 these transactions have been investigated

as to whether they involved tax evasion or other offences. In

connection with these investigations, which were first directed against

the representatives of the European Management Consulting Company

(Europäische Unternehmensberatungsanstalt), the applicant was heard on

10 March 1977 as a witness. Pointing out that he was responsible for

all financial matters of the CDU, the applicant stated that he

considered himself to be concerned by the investigations. Thereupon he

was likewise treated as a suspect (Beschuldigter).

On 25 April 1988, when the Public Prosecutor (Staatsanwalt-

schaft) was still carrying out investigations, the applicant requested

that the proceedings be discontinued, arguing that they exceeded a

reasonable time. This request was rejected on 16 May 1988 by the

Public Prosecutor in Bonn on the following grounds:

The proceedings, No. 40 JS 183/76, against representatives of the

European Management Consulting Company had been extended to the

applicant. On 30 December 1980 the applicant had been informed of the

discontinuation of these proceedings.

Meanwhile other investigation proceedings had been instituted by

the Public Prosecutor in Düsseldorf. They were directed against a

businessman, L., who had made a donation to the CDU. He was suspected

of tax evasion. Those proceedings were discontinued on 23 April 1981.

Mid-1981 the Public Prosecutor in Bonn requested the Düsseldorf

Public Prosecutor to transmit the files concerning the discontinued

proceedings against L. In view of further discoveries the Bonn Public

Prosecutor then decided on 31 August 1981 to reopen the proceedings

against L. and to open new proceedings against the applicant.

On 17 February 1981 the applicant was heard as a witness in

investigation proceedings against a former secretary of the Liberal

Party (FDP) who was suspected of attempted blackmail.

The Public Prosecutor saw no connection between the previous

discontinued proceedings against the applicant and the investigation

proceedings started on 31 August 1981. The previous proceedings

related to dealings with fictitious expert opinions, while the

proceedings instituted against the applicant on 31 August 1981

concerned the applicant's involvement in donation payments made via

specific associations, in particular one called "Staatsbürgerliche

Vereinigung".

Therefore the Public Prosecutor concluded that the relevant

period (under Article 6 para. 1 of the Convention) began on 31 August

1981 and lasted six years and eight months and not, as the applicant

had submitted, some twelve years. That period was not unreasonably

long in view of the difficulty and complexity of the matter. Some 450

business companies' premises had to be searched and money transfers to

Switzerland and their camouflaged re-transfer had to be investigated.

As the corresponding bank documents could not be found, the flow of the

money in question had to be traced on the basis of voluminous

documentary evidence seized during the searches.

The Public Prosecutor further pointed out that prosecution would

become time-barred on 29 June 1991. There was no reason to discontinue

the proceedings and their length could be taken into account as a

mitigating factor if a sentence was imposed.

The applicant's appeal to the Hamm Court of Appeal

(Oberlandesgericht) was dismissed on 23 June 1988 as being

inadmissible.

A subsequent constitutional complaint was rejected by the

Federal Constitutional Court (Bundesverfassungsgericht) on 13 October

1988 as being partly inadmissible and partly clearly ill-founded. The

Court stated that the appellate court's decision did not disclose any

appearance of arbitrariness. The continued investigation proceedings

could not be the subject of a constitutional complaint as they only

served the preparation of a decision. The Court noted that the length

of the proceedings constituted an important burden on the applicant,

and expressed its hope that the Public Prosecutor would expedite them.

The Court furthermore stated that the prejudice caused to the applicant

was only of a temporary nature and could subsequently be remedied as

the length of the proceedings had to be taken into account by the

criminal courts when fixing the sentence. On the other hand the

applicant would be rehabilitated if acquitted. Under certain

circumstances he might then also claim compensation under the Act on

Compensation in Criminal Matters (StrEG) or under tort law

(Amtshaftung).

It follows from the applicant's submissions that, as he was not

formally informed about the institution of the proceedings which began

on 31 August 1981, he submitted an information against himself

(Selbstanzeige) some days later. At the request of the applicant and

others who considered themselves concerned the state of these

proceedings was first discussed at a meeting with representatives of

the Public Prosecutor on 17 February and 20 April 1983. On 20-22 April

1983 the offices of the CDU's Treasury were searched. The applicant

was heard by two members of the Public Prosecutor's Office on 7 July

1986. The applicant's trial opened before the Regional Court

(Landgericht) of Düsseldorf on 14 February 1990.

COMPLAINTS

The applicant has submitted that investigation measures against

him were taken by the Public Prosecutor from mid-1976 or, at the

latest, from March 1977, considering that all investigations relating

to the suspected illegality of the financing of the CDU concerned the

same subject-matter. Therefore it was, in his opinion, not justified

to make a distinction between different complexes and different

investigation proceedings for the purpose of determining the

reasonableness of the length of the proceedings. He has pointed out

that his name was repeatedly mentioned in press reports on the matter

which is known as the "donation scandal" (Spendenaffäre). He has

alleged that the investigation proceedings negatively affected his

personal career in a severe manner, and violated Article 6 para. 1 of

the Convention in view of their unreasonable duration.

PROCEEDINGS

The application was introduced on 3 January and registered on 5

March 1989.

On 5 September 1989 the Commission decided to give notice of the

application to the respondent Government and to invite them to submit

before 24 November 1989 their observations in writing on the

admissibility and merits of the application. At the Government's

request, the time-limit was subsequently extended until 8 January 1990.

The Government submitted their observations on 10 January 1990,

and the applicant was invited to submit observations in reply before

16 March 1990. On 14 March 1990 the applicant submitted observations

in reply to the Government's observations.

On 7 December 1990 the Commission decided to adjourn the

examination of the matter pending the outcome of the trial.

On 8 May 1991 the trial court discontinued the proceedings

(Einstellung des Verfahrens).

By letter of 5 February 1992 the applicant's counsel withdrew the

application.

FINDINGS OF THE COMMISSION

The criminal proceedings against the applicant were discontinued

and he subsequently stated that he wished to withdraw the application.

Having regard to Article 30 para. 1 (a) of the Convention, the

Commission notes that the applicant does not intend to pursue the

petition. Furthermore, in accordance with Article 30 para. 1 in fine,

the Commission finds no special circumstances regarding respect for

human rights as defined in the Convention which require the

continuation of the examination of the application.

For these reasons the Commission unanimously

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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L. v. GERMANY

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