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AS TO THE ADMISSIBILITY OF

Application No. 16052/90

by K.H.

against the Federal Republic of Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 9 December 1991, the following members being present:

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

J.A. FROWEIN

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

H. DANELIUS

Sir Basil HALL

MM. C.L. ROZAKIS

L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

B. MARXER

Mr. M. de SALVIA, Secretary to the First 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 19 October 1989

by K.H. against the Federal Republic of Germany and registered on 25

January 1990 under file No. 16052/90;

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

A.Particular circumstances of the case

The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

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.

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.

On 4 April 1984 the applicant filed a declaration with the

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

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 (Staats-

anwaltschaft) on 27 September 1984.

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 in the years 1974

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

and thus no taxable income in the Federal Republic of Germany.

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 both decisions aside for lack of reasonable

suspicion. The District Court found, that although the applicant

continued to have a place of residence in the Federal Republic of

Germany, there was no sufficient evidence of taxable income abroad.

On 16 January 1988 the applicant filed a hierarchical complaint

(Dienstaufsichtsbeschwerde) with the Hamburg Public Prosecutor's Office

(Staatsanwaltschaft) about the continuing proceedings and also

complained about the public prosecutor and the two investigators

involved in the proceedings against him.

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.

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.

The investigation proceedings concerning tax evasion are still

pending. The authorities, in particular in rogatory proceedings, seek

to establish in how far the applicant had taxable income abroad. It

is not clear whether and, if so, when the investigations against the

applicant can be expected to be terminated and an indictment to be

preferred.

B. Relevant domestic law and practice

SS. 112 to 131 of the Code of Criminal Procedure (Strafprozeß-

ordnung) concern the arrest and detention of a person on reasonable

suspicion of having committed an offence.

SS. 151 to 177 of the Code of Criminal Procedure regulate the

principles of criminal prosecution and the preparation of the

indictment. S. 151 provides that the opening of a trial presupposes

an indictment. According to S. 152 the indictment is preferred by the

Public Prosecutor's Office which is, unless otherwise provided, obliged

to investigate any criminal offence of which there is a reasonable

suspicion.

Preliminary investigations are conducted by the Public

Prosecutor's Office according to SS. 160 and 161 of the Code of

Criminal Procedure. On the basis of these investigations the Public

Prosecutor's Office decides under S. 170 whether to prefer an

indictment or to discontinue the proceedings.

According to Article 93 para. 1 (4a) of the Basic Law (Grund-

gesetz) the Federal Constitutional Court (Bundesverfassungsgericht)

shall decide on complaints of unconstitutionality, which may be entered

by any person who claims that one of his basic rights or one of his

rights under paragraph 4 of Article 20, under Articles 33, 101, 103,

or 104 has been violated by public authority. S. 90 para. 2 (2) of the

Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz)

provides that the constitutional complaint has a subsidiary character

and may, in principle, only be lodged after exhaustion of ordinary

remedies.

According to the case-law of the Federal Constitutional Court,

the necessary conclusions of a violation of a person's right to a

speedy determination of any criminal charge against him have first to

be drawn by the criminal courts applying and interpreting the penal and

procedural law (Dec. 24.11.83, 2 BvR 121/83, Neue Juristische Wochen-

schrift 1984 p. 967).

COMPLAINTS

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

about the length of the preliminary investigations against him. He

also invokes his right to security under Article 5 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 19 October 1989 and registered

on 25 January 1990.

On 7 January 1991 the Commission decided to bring the application

to the notice of the respondent Government and invite them to submit

written observations on its admissibility and merits.

The Government's observations were submitted on 2 May 1991. On

23 May 1991 the applicant submitted his observations in reply.

On 27 May 1991 the Commission referred the application to the

First Chamber.

THE LAW

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

Convention about the length of preliminary investigations against him

concerning tax evasion. He also invokes Article 5 (Art. 5) of the

Convention.

Article 6 para. 1 (Art. 6-1) provides, inter alia, that, in the

determination of any criminal charge against him, everyone is entitled

to a hearing within a reasonable time.

2.The Government submit that the applicant's complaint about the

length of the preliminary investigations against him is incompatible

ratione materiae with the provisions of the Convention. They consider

that Article 6 para. 1 (Art. 6-1) does not grant a right to preliminary

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

time", but only applies to proceedings before the trial court. Only

in such cases, the relevant period to be considered could start at an

earlier date. In the particular situation that a person suspected of

a criminal offence was arrested and detained on remand, Article 5 para.

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

trial within a reasonable time or to release pending trial.

The Commission finds that the applicant's complaint about the

length of the criminal proceedings against him does not clearly fall

outside the provisions of the Convention (cf., mutatis mutandis, Eur.

Court H.R., "Belgian Linguistic" judgment of 9 February 1967, Series

A no. 5, p. 18). The question whether or not Article 6 para. 1

(Art. 6-1) of the Convention applies to the preliminary investigations

conducted by the Hamburg Public Prosecutor's Office against

the applicant therefore goes to the merits of the application.

It follows that the application is not incompatible with the

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

3.Furthermore, the Government consider that the applicant failed

to exhaust the remedies available to him under German law, as required

by Article 26 (Art. 26) of the Convention, in that he did not lodge a

constitutional complaint (Verfassungsbeschwerde) with the Federal

Constitutional Court (Bundesverfassungsgericht). They submit that the

Federal Constitutional Court has already decided about complaints

concerning the refusal of information pending preliminary

investigations, and concerning the complaint that an arrest warrant was

upheld for an excessive period.

The Commission recalls that the only remedies which Article 26

(Art. 26) of the Convention requires to be exhausted are those which

relate to the breaches alleged and at the same time are available and

sufficient. The existence of such remedies must be sufficiently

certain not only in theory but also in practice, failing which they

will lack the requisite accessibility and effectiveness. It falls to

the respondent Government to establish that these various conditions

are satisfied (Eur. Court H.R., De Jong, Baljet and Van Den Brink

judgment of 22 May 1984, Series A no. 77, p. 19, para. 39).

The Commission observes that the constitutional complaint with

the Federal Consitutional Court is a remedy with a subsidiary

character. According to the case-law of the Federal Constitutional

Court, the necessary conclusions of a violation of a person's right to

a speedy determination of any criminal charge against him have first

to be drawn by the criminal courts applying and interpreting the penal

and procedural law (Dec. 24.11.83, cit. op.). The Government have not

cited any decision of the Federal Constitutional Court considering the

merits of a complaint about the unreasonable length of pending criminal

proceedings.

In these circumstances, the Government have failed to prove that

a constitutional complaint with the Federal Consitutional Court could

constitute an available and sufficient remedy which the applicant ought

to have exhausted.

The Commission concludes that the applicant has complied with the

condition as to the exhaustion of domestic remedies.

4.Finally, the respondent Government have submitted that the

investigations against the applicant are especially difficult on the

ground that they involve rogatory proceedings in order to establish the

applicant's capital gains abroad, which were very time-consuming and

difficult because they concerned tax offences.

The Commission considers that the applicant's complaint about the

preliminary investigations against him on the suspicion of tax offences

raises questions of fact and of law, which can only be determined on

the basis of an examination of the merits. The application cannot,

therefore, be declared manifestly ill-founded under Article 27 para.

2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to Acting President of

the First Chamber the First Chamber

(M. de SALVIA) (F. ERMACORA)

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