Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15652/89

by Claus Hermann Paul BACHER

against the Federal Republic of Germany

The European Commission of Human Rights (First Chamber)

sitting in private on 17 April 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 4 August 1989

by Claus Hermann Paul BACHER against the Federal Republic of Germany

and registered on 19 October 1989 under file No. 15652/89;

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

parties, may be summarised as follows:

The applicant, born in 1937, is a German national and resident

in Berlin. He is a lawyer by profession. Before the Commisison he is

represented by MM. F. Tappe, W. Bender, P. Günnewich and J. B. Müller,

lawyers practising in Berlin.

Since 1975 the Berlin Tax Office (Finanzverwaltung) suspected

the applicant and others of tax evasion committed in 1974 in the

context of fictitious business activities and losses of a group of

limited partnerships (Kommanditgesellschaften) in Berlin, and

thereafter started investigation proceedings. The Berlin Prosecutor's

Office (Staatsanwaltschaft) started preliminary investigations in

December 1975.

On 11 February 1976 the Tiergarten District Court (Amts-

gericht) issued several search warrants on the suspicion of fraud and

other offences which concerned various private and business premises

in the Federal Republic of Germany and Switzerland, including the

applicant's premises in Berlin. The applicant submits that he heard

about the search warrants in April 1976 and requested to be heard upon

the charges against him. Following rogatory proceedings and

consultation with the Swiss authorities the searches were effected on

22 November 1976. In the applicant's premises 24 files were seized.

On 23 November 1976 the applicant again requested the Berlin

Public Prosecutor's Office to be heard upon the suspicion against him.

Furthermore, in written submissions, he commented upon the search

warrant and the charges therein.

On 6 December 1976 the Prosecutor's Office requested the

Berlin Tax Frauds Department (Steuerfahndungsstelle) to examine the

fiscal aspects of the documents seized. The Department submitted its

report on 27 April 1977.

In the meantime, Mr. M., a Swiss national affected by one of

the above searches in Switzerland, had objected to the delivery of

various documents seized on the occasion of that search. The Berlin

Prosecutor's Office awaited the outcome of these proceedings until

January 1979 when it was informed that M. had appealed against a first

decision ordering the delivery.

From September until November 1979 the Public Prosecutor's

Office, having previously examined numerous tax files, heard the

accused and several witnesses. The applicant was questioned on

19 September 1979.

On 30 January 1980 the Berlin Public Prosecutor's Office

preferred an indictment (Anklageerhebung) against the applicant and

seven other accused on charges of tax evasion and related financial

offences.

On 30 June 1980 the Presiding Judge at the Berlin Regional

Court (Landgericht) returned the indictment for amendment in view of a

judgment of the Federal Court of Justice (Bundesgerichtshof) of

20 June 1980 concerning similar issues.

On 15 August 1980 the Public Prosecutor's Office preferred a

new indictment against the applicant and two further accused. On

30 March 1981 the Regional Court, following proceedings concerning

warrants of arrest, ordered that the indictment be sent to the

accused. The indictment was served on 16 April 1981. On 20 October

1981 one of the co-accused commented upon the indictment.

Furthermore, in 1981 proceedings were again pending before

Swiss authorities concerning the delivery of the above-mentioned

documents. Eventually, some of the documents were delivered in May

1982. On 25 November 1982 the Berlin Regional Court committed the

applicant and his co-accused for trial (Eröffnung des Hauptverfahrens)

as regards part of the indictment. As regards the remainder of the

charges, the Regional Court found that prosecution had become

time-barred (Verfolgungsverjährung).

On 16 February 1983 the Berlin Public Prosecutor's Office,

having regard to the Regional Court's decision of 25 November 1982,

preferred an amended indictment.

On 12 January 1984 the Berlin Regional Court discontinued the

criminal proceedings as regards two counts of the indictment of 16

February 1983, and committed the accused for trial as regards the

remainder of the charges.

On 30 January 1984 the trial against the applicant and his two

co-accused concerning charges of tax evasion and related offences on

fourteen counts opened before the Berlin Regional Court. It continued

for 182 days until 13 November 1986. It follows from the verbatim

record that on numerous days the trial lasted only about 2 to 25

minutes (1984: 27, 28 February; 12 March; 1985: 21 February;

4, 12 July; 5 August; 26 September; 3, 10 October; 4, 11, 18, 25

November; 2, 9, 16, 23, 30 December; 1986: 6, 13, 20, 27 January;

20, 27 February; 13, 20, 25 March; 10, 21, 28 April; 5, 12, 22 May;

9, 16, 25 June; 17, 24, 31 July; 7, 14, 21, 28 August, 4 September).

In the course of the trial, i. e. on 12 March 1985 the

Regional Court, upon request of one of the accused, ordered that

several witnesses residing in Switzerland be heard. The rogatory

letters to that effect remained, at the time, unsuccessful. The

request was thereupon refused on 30 May 1985. Further requests to hear

witnesses residing in Switzerland were dismissed on 10 June and

24 October 1985 as well as on 10 February 1986. One further witness

was heard at the German Consulate in New York in April 1986. Following

appeal proceedings as regards the rogatory letters of March 1985, two

witnesses were heard in Switzerland in May and September 1986.

On 13 November 1986 the Berlin Regional Court convicted the

applicant of having acted as accessory to tax evasion on one count and

sentenced him to six months' imprisonment on probation. One

co-accused was convicted of tax evasion on one count. The proceedings

against the third co-accused were discontinued; the proceedings

against the applicant and the second co-accused were discontinued as

regards the remaining counts of the indictment on the ground that

prosecution had become time-barred in the meantime.

In its judgment comprising 391 pages, the Regional Court

found that the accused had been managers and accountant, respectively,

of a group of limited partnerships formed to take advantage of the tax

allowances for depreciation (Abschreibungsgesellschaften), in

particular tax allowances in support of the Berlin industry. The Court

had regard to fictitious business activities of these firms conducted

from 1970 until 1974 which had resulted in fictitious losses and thus

incorrect tax assessments in respect of the limited partners. In the

course of the trial, the prosecution as regards the majority of these

charges became time-barred, only one count of tax evasion and

accessory to tax evasion in connection with business activities in

1974 remaining to be considered. With regard to the fixing of the

sentence, the Regional Court considered as mitigating circumstances

the fact that since 7 April 1975 the Berlin Tax Office had considered tax

evasion possible. Furthermore, the offences had been committed a long

time ago, the accused had not been previously convicted and had been

considerably burdened as a result of the length of the proceedings

for which they could not be held responsible - burdens which they had

never tried to avoid. As far as their defence strategy had allowed,

they had to a large extent co-operated in the establishment of the

facts ("Im übrigen wirkte sich bei beiden Angeklagten aus, daß die

Tatzeit lange zurückliegt, daß sie bisher nicht bestraft sind und

durch die lange, von ihnen nicht zu verantwortende Verfahrensdauer

großen Belastungen ausgesetzt waren, denen sie sich zu keiner Zeit zu

entziehen suchten. Soweit es ihre Verteidigungsstrategie erlaubte,

haben sie auch in weitem Umfang zur Aufklärung des Sachverhalts

beigetragen.")

The Regional Court also decided that the accused had to bear

the costs of the proceedings insofar as they had been convicted, the

remainder had to be borne by the Treasury. However, in accordance

with S. 467 para. 3, second sentence, of the Code of Criminal

Procedure (Strafprozeßordnung), the Regional Court declined to order

the Treasury to bear the accuseds' own expenses - insofar as the

proceedings had been discontinued. In this respect, the Regional

Court considered that, having regard to its above findings as regards

the accuseds' business activities for years, they would certainly have

been convicted on the other counts of the indictment, had the

prosecution not become time-barred in the course of the trial.

Furthermore, after the taking of evidence had already been closed on

24 October 1985, one of the applicant's co-accused, in requesting to

take further evidence in hearing witnesses living abroad, had

prevented the Regional Court from terminating the trial before

prosecution had become time-barred. The cost and time spent in the

further taking of evidence and the intermediate hearings

(Zwischentermine) were necessary in order to avoid a completely new

start of the trial under S. 229 of the Code of Criminal Procedure (old

version).

The applicant lodged an appeal on points of law (Revision).

The written judgment was served upon the applicant on 21 September 1987.

On 16 October 1987 the applicant submitted the reasons of his

appeal on points of law. He complained inter alia about the length of

the proceedings and referred to Article 6 para. 1, first sentence, of

the Convention.

On 27 January 1989 the Federal Court of Justice dismissed the

applicant's appeal on points of law. The decision was served on

6 February 1989.

On 19 April 1989 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde). The Constitutional Court found

that the complaint was inadmissible as regards the proceedings before

the Berlin Regional Court, and that the remainder offered no prospect

of success.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the

Convention about the length of the criminal proceedings against him.

He considers in particular that the length of the proceedings was not

adequately considered as a mitigating circumstance, in that it was

mentioned in half a sentence, and in that it was not indicated how far

the sentence had been reduced.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 August 1989 and registered

on 19 October 1989.

On 15 February 1990 the Commission decided that notice should

be given to the German Government of the application and that the

Government should be invited to submit written observations on the

admissibility and merits of the case.

After an extension of the time-limit, the Government's

observations were submitted on 25 May 1990. The applicant's

submissions in reply were also submitted after an extension of the

time-limit on 28 August 1990.

On 8 January 1991 the Commission decided that the application

should be referred to the First Chamber.

THE LAW

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

the Convention that the criminal proceedings against him were not

terminated within a reasonable time.

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.

The respondent Government do not contest the admissibility of

the application. Having regard to the relevant criteria established be

the Convention organs, they consider that the applicant's right to a

hearing within a reasonable time was not violated. They refer in

particular to the difficult legal and factual issues raised in the

criminal proceedings against the applicant and his co-accused. Delays

caused by the rogatory proceedings concerning Switzerland had to be

taken into account in order to secure a full establishment of the

facts. Furthermore, having regard to the close link between the

charges against the applicant and his co-accused, the proceedings

against him could not be conducted separately. Moreover, since

February 1985 the length of the trial was due to the accuseds'

repeated requests to take further evidence.

As regards his own conduct and the conduct of his co-accused

in the course of the proceedings, the applicant refers to the findings

of the Berlin Regional Court in its judgment of 13 November 1986

according to which the accused could not be held responsible for the

length of the proceedings. He is of the opinion that both the

investigations and the court proceedings were unreasonably delayed by

the conduct of the German authorities.

The Commission considers that the applicant's complaint about

the length of the criminal proceedings against him, which lasted

about thirteen years, raises questions of facts and of law, which are

of such a complex nature that their determination requires 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. No other grounds for inadmissibility have been

established.

For these reasons, the Commission unanimously,

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the First Chamber Acting President of the First Chamber

(M. DE SALVIA) (F. ERMACORA)

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BACHER v. GERMANY

BACHER v. GERMANY

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