AS TO THE ADMISSIBILITY OF

                      Application No. 14733/89

                      by Arno KROPF

                      against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private

on 2 July 1990, the following members being present:

              MM. C.A. NØRGAARD, President

                  S. TRECHSEL

                  F. ERMACORA

                  E. BUSUTTIL

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H. DANELIUS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ RUIZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             MM.  L. LOUCAIDES

                  J.-C. GEUS

             Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 8 December 1988

by Arno Kropf against the Federal Republic of Germany and registered

on 7 March 1989 under file No. 14733/89;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a German citizen, born in 1926 and living in

Berlin.  He is represented by Mr. H. Mahler, a lawyer in Berlin.

        The facts submitted are as follows.

        In June 1969 the office of the Public Prosecutor in Düsseldorf

instituted investigation proceedings against the applicant and his

business partner, Mr.  M., who were both suspected of fraudulent

business practices, namely of having obtained loans on the basis of

mortgages which had been overestimated.  A search and seizure order

was issued against the applicant by the District Court (Amtsgericht)

Tiergarten in Berlin on 23 June 1969.  Evidence was obtained from

several banks and credit institutes.  In 1974 an indictment was filed

accusing the applicant and his partner of having committed fraud to

the detriment of thirteen banks.

        On 16 November 1976 the applicant and M. were acquitted by the

Bielefeld Regional Court (Landgericht).  The expenses incurred by the

defendants and the cost of the proceedings were imposed on the treasury.

The Court also ordered that the acquitted be paid compensation in

respect of several prosecution measures, in particular searches

effected at several banks and credit institutes.

        The Public Prosecutor lodged an appeal on points of law

(Revision) which it withdrew, however, on 29 July 1977.

        It appears that, prior to the indictment, the Public Prosecutor

provisionally discontinued the proceedings in part and only decided in

May 1979 to discontinue this part of the proceedings definitely.  The

order granting the applicant compensation for prosecution measures

was set aside on 16 November 1979 on the ground that he was responsible

for the necessity of the investigative measures.

        On 16 November 1979 the applicant brought an action against

the Land Northrhine-Westphalia requesting the Court to state that the

defendant had to compensate all damages caused to him, his wife and

his partner in consequence of miscarriage in office committed in

connection with the criminal proceedings against him, in particular in

consequence of a press conference given by the Public Prosecutor in

December 1969 denouncing him as a fraudulent person.  Allegedly his

business partners, such as banks and credit institutes had thereupon

cancelled all credit agreements with him.  This had led to the

collapse of his business activities, had obliged him to liquidate his

real estate holdings, and had eventually caused the loss of all his

assets.

        The applicant's request to be granted legal aid was rejected

by the Regional Court on 14 November 1981.  The applicant appealed and

on 28 December 1983 the Court of Appeal (Oberlandesgericht) of Hamm

ordered the Regional Court to grant legal aid for part of the intended

action.  On 16 March 1984 the applicant specified his claims on the

basis of an expert opinion which he had in the meantime received.  He

claimed some 208,000,000 DM and a finding that further damages had to

be paid by the defendant.  On 29 March 1985 the Regional Court refused

to grant legal aid for this action.  An appeal against this decision

was rejected on 3 February 1986.

        The applicant then provisionally limited his claim to

114,000,000 DM.

        This action was dismissed by the Dortmund Regional Court

on 26 March 1987 on the grounds that the claims were time-barred.

The Court held that the only acts of public officials which could

possibly be considered as having violated the applicant's rights

were the declarations made by the Public Prosecutor at the press

conference in December 1969.  However, the applicant had had knowledge

of the effects of this press conference at least since the end of

1972.  Consequently he had not raised his alleged claim within the

statutory period of three years as he lodged his action only in 1979.

        The time-limit for lodging the action had not been suspended

until the applicant's acquittal because the relevant facts were known

since 1972 and there was nothing to show that from the applicant's

point of view it was unreasonable to bring a civil action while the

criminal proceedings against him were still pending.  Furthermore,

the applicant had not shown that he had been threatened with arrest or

other prosecution measures to prevent him from lodging the action for

damages while the criminal proceedings were still pending.

        The applicant's appeal (Berufung) against the judgment

of 26 March 1987 was rejected by the Hamm Court of Appeal on

10 February 1988.  This Court referred to its findings in a parallel

case brought by the applicant's wife who had likewise claimed damages

on the same grounds as the applicant.  This action was dismissed by

the Regional Court and, on appeal, by the Hamm Court of Appeal on

28 November 1986.  An appeal on points of law (Revision) was rejected

by the Federal Court (Bundesgerichtshof) on 29 October 1987.  A

constitutional complaint was to no avail.

        In the judgment referred to of 28 November 1986 it was, inter

alia, stated that no miscarriage in office had been committed by

public officials in the course of the criminal proceedings against the

applicant.  According to the principle of legality (Legalitätsprinzip)

the Public Prosecutor had an obligation to investigate and bring an

indictment whenever the circumstances gave reason to suspect a person

of having committed a criminal offence.  Already the fact that the

applicant and his partner had made large and illegal donations of

money to several bank employees had given reason to suspect them of

having bribed those employees for the purpose of receiving in return

unjustified advantages.  The appellate court added that in any event

the action was, as held by the lower court, time-barred and that there

had been no circumstances justifying a suspension of the time-limit.

In particular, there was nothing to show that pressure by the Public

Prosecutor had prevented the applicant from lodging his claim for

damages.  The outcome of the criminal proceedings did not influence

this claim, which only depended on the question whether or not the

statements made by the Public Prosecutor at a press conference in

December 1969 and other investigation measures had to be considered as

constituting a miscarriage in office.  As the applicant had known the

facts on which he based his claim for damages at least since 1972, he

should have lodged his action before the end of 1975 in order to

comply with the three year time-limit provided for in Section 852 (1)

of the Civil Code (BGB).

        The applicant's request for legal aid in order to be able to

lodge an appeal on points of law was rejected by the Federal Court on

26 May 1988.

        A constitutional appeal against the latter decision was

rejected by a group of three judges of the Federal Constitutional

Court on 8 August 1988 as offering no prospects of success.

        A constitutional appeal against the civil courts' decisions

refusing legal aid was likewise rejected by a group of three judges

on 8 August 1988 partly as being inadmissible and partly as offering

no prospects of success.  It is stated, inter alia, in the decision

that the considerations of the civil courts relating to the issue of

whether the applicant's claim was time-barred were unobjectionable

insofar as constitutional law was concerned.

COMPLAINTS

        The applicant complains of the length of the criminal proceedings

against him, alleging that for seven years he lived under the threat

of being arrested and detained on remand.  In this respect he invokes

Articles 5 and 6 of the Convention.  He further alleges a violation

of the presumption of innocence (Article 6 para. 2) because the

activities of the investigating police officers and prosecutors led

to press publications branding him as a large-scale crook.

        Furthermore, he submits that he was denied a fair hearing and

a decision within a reasonable time in the civil proceedings where his

action for damages was, in his opinion, wrongly dismissed.

THE LAW

1.      Insofar as the applicant alleges a violation of the

presumption of innocence, the Commission notes that he was acquitted

and is therefore no longer a victim of the alleged procedural

irregularity.  This part of the application is consequently manifestly

ill-founded and must be rejected in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

        In any event the final decision in the main criminal

proceedings was given on 16 November 1976 when the Regional Court

acquitted the applicant of the charges retained in the indictment.  It

is true that the Public Prosecutor appealed, but he withdrew his

appeal on 29 July 1977.  The Commission also notes that criminal

proceedings provisionally discontinued before the indictment were not

definitely discontinued until May 1979.  The present application

was only introduced on 8 December 1988, that is more than six months

later.  The present complaint would therefore also have to be rejected

in accordance with Articles 27 para. 3 (Art. 27-3) for non-observance

of the six months' rule laid down in Article 26 (Art. 26) of the

Convention.

2.      The same reasoning as stated above applies insofar as the

applicant complains of the length of the criminal proceedings.

        In addition the Commission refers to the jurisprudence of the

Federal Constitutional Court according to which the excessive length

of proceedings can be invoked in a constitutional complaint.  The

applicant failed to lodge such a complaint.  He only referred to the

length of the criminal proceedings in connection with his

constitutional complaints against the decisions given in the civil

proceedings relating to his action for damages.  However, the action

for damages was based on the allegation that the prosecution

authorities caused the applicant's ruin in that their actions led his

business partners, such as banks and credit institutes, to believe

that he was a large-scale crook.  The length of the criminal

proceedings was referred to in the civil proceedings only in support

of the argument that it would be unreasonable to consider the claim

for damages time-barred as from 1975 onwards while the applicant was

not acquitted before 16 November 1976 and parts of the criminal

proceedings, provisionally discontinued before the indictment, were

not definitely discontinued until May 1979.  In these circumstances

the civil action, in which the applicant was required to show that

public officials had committed miscarriage in office, cannot be

considered a remedy with regard to the present complaint about the

length of the criminal proceedings.

        Moreover, even assuming that the civil action for damages,

which was lodged on 16 November 1979 and alleged a violation of the

presumption of innocence, constituted an effective remedy within the

meaning of Article 26 (Art. 26) of the Convention also in regard to

the length of the criminal proceedings, the Commission further notes

that this claim was rejected principally on the ground that it had

been lodged out of time.  The Commission is not competent to examine

whether this finding was based on errors of law or fact unless such

errors disclose a violation of the Convention.  It notes, however,

that the applicant's appeal was dismissed by the Court of Appeal and

that his criticism of the appellate court was rejected both by the

Federal Court and the Federal Constitutional Court.  Agreeing with the

Federal Constitutional Court, the Commission finds no indication that

the civil courts arbitrarily considered the applicant's action as

being time-barred.

        This part of the application therefore has to be rejected

under Article 27 para. 3 (Art. 27-3) either for non-observance of the

six-month rule or for non-exhaustion of domestic remedies within the

meaning of Article 26 (Art. 26) of the Convention.

3.      Insofar as the applicant complains that his action for damages

was wrongly dismissed, the Commission recalls its above findings

concerning the criminal proceedings, in particular that there is

nothing to show that the civil courts arbitrarily considered this

action as being time-barred.

        It follows that this part of the application is manifestly

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

the Convention.

4.      Finally, insofar as the length of the civil proceedings is

concerned, the applicant failed to raise this particular complaint

before the Federal Constitutional Court.

        It follows from the documents submitted by him that he only

complained about the denial of legal aid and the alleged wrongful

dismissal of his action for damages while he did not invoke his right

to a final decision within a reasonable time which is, according to

the Federal Constitutional Court (see EuGRZ 1981, 140, 143 and 1982, 75),

also guaranteed by the Basic Law (Grundgesetz).

        This part of the application therefore has to be rejected for

non-exhaustion of domestic remedies in accordance with Articles 26

(Art. 26) and  27 para. 3 (Art. 27-3) of the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission               President of the Commission

   (H.C. KRÜGER)                               (C.A. NØRGAARD)