AS TO THE ADMISSIBILITY OF

                      Application No. 13020/87

                      by Peter CONRAD

                      against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private

on 13 April 1988, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             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 15 June 1987

by Peter Conrad against the Federal Republic of Germany and registered

on 25 June 1987 under file No. 13020/87;

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

Rules of Procedure of the Commission;

-       the Commission's decision of 7 October 1987 to bring the

        application to the notice of the respondent Government and

        invite them to submit written observations on its admissibility

        and merits;

-       the observations submitted by the respondent Government on

        5 January 1988 and the observations in reply submitted by the

        applicant on 17 February 1988;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts apparently not in dispute between the parties may be

summarised as follows:

        The applicant, born in 1948, is a German national and resident

in Düsseldorf.  He is a businessman by profession.  Before the

Commission he is represented by Mr.  T. Vogler, a law professor at

Giessen University.

        In 1972 the Düsseldorf Public Prosecutor's Office (Staatsan-

waltschaft) began a preliminary investigation (Ermittlungsverfahren)

in respect of the applicant and other persons on charges of, inter

alia, fraud.  He was suspected of having provoked car accidents in

road traffic in 1969 and 1974 in order to defraud insurance companies.

The applicant was taken into detention on remand for about nine months

(31 May 1973 until 20 February 1974), and apparently he was then

ordered not to leave the area of Düsseldorf for several years.  His

home was searched in June 1973 and his prison cell in February 1974.

His driving licence was provisionally withdrawn for about four and a

half years (February 1974 until August 1978).

        On 17 December 1979 the Düsseldorf Public Prosecutor's Office

preferred the indictment (Anklageerhebung) against the applicant and

five co-accused before the 13th Criminal Chamber (13.  Grosse Strafkammer)

of the Düsseldorf Regional Court (Landgericht).  It consisted of 446

pages, listed more than 120 counts of offences and more than 100

witnesses to be called.

        On 1 April 1980 the 13th Criminal Chamber was dissolved and

the case transferred to the 14th Criminal Chamber of the same Court,

which due to its burden of work could not hold a trial in 1980 nor

in 1981.

        On 25 January 1982 the 14th Criminal Chamber of the Regional

Court, having examined the case file with regard to the question

whether to admit the indictment (Zulassung der Anklage), transferred

the case to the Juvenile Chamber (Jugendkammer) on the ground that

some of the accused were alleged to have committed certain of the

offences, with which they were charged, as juveniles.  The Juvenile

Chamber separated the part of the proceedings for which it was

competent under the relevant provisions of the Code of Criminal

Procedure (Strafprozessordnung) and discontinued them under S. 154 of

the Code.  S. 154 provides that proceedings may be provisionally

discontinued where the penalty or the corrective or preventive measure

to be expected in the case of a conviction is almost negligible in

comparison with a penalty or corrective or preventive measure imposed

on the defendant - or which he must expect - for another offence.  On

10 March 1982 the Juvenile Chamber committed the accusal for trial

(Eröffnung des Hauptverfahrens) on the remaining charges before a

criminal chamber.

        On 26 May 1982 the Düsseldorf Public Prosecutor's Office,

having regard to the order of 10 March 1982, preferred an amended

indictment, which was received by the then competent 12th Criminal

Chamber of the Düsseldorf Regional Court on 15 June 1982.

        On 15 May 1984 the President of the Düsseldorf Regional Court

informed the North-Rhine Westphalia Ministry of Justice of the state

of the proceedings in respect of the applicant and the co-accused.  He

referred in particular to an official statement of the Presiding Judge

of the 12th Criminal Chamber according to which the Chamber was mainly

dealing with drug offences and the applicant's case was the only

"white collar crime" ("Wirtschaftsstrafsache").  The Chamber was

heavily burdened with cases concerning drug offences, the accused

persons in these cases being detained on remand.  It could, therefore,

not be justified to open the trial in the applicant's case which was

expected to last more than six months.  Since there was no hope that

the trial could be opened in the near future, it appeared sensible to

let the prosecution of the applicant's "juvenile sins" ("Jugend-

sünden") become time-barred.  The President of the Court furthermore

pointed out that the Chamber concerned could not be relieved of its

increasing burden of work.  He finally stated that to his own

consternation he was unable, for the time being, by using the Court's

own resources to contribute to the advancement of the criminal

proceedings in respect of the applicant ("Zu meiner eigenen Betrof-

fenheit sehe ich mich ausserstande, derzeit aus eigenen Kräften des

Landgerichts Düsseldorf einen Beitrag zur Förderung der Strafsache

gegen Conrad zu leisten.")

        On 14 January 1987 the 12th Criminal Chamber of the Düsseldorf

Regional Court admitted the indictment of 26 May 1982 in respect of

the applicant and a co-accused concerning in particular serious

offences in road traffic (gefährlicher Eingriff in den Strassen-

verkehr) and committed the accused for trial.  Furthermore, it decided

to discontinue the proceedings under S. 206(a) of the Code of Criminal

Procedure in respect of the remaining charges on the ground that the

prosecution concerning those offences had become time-barred.

        On 19 January 1987 the Regional Court notified the applicant

that the trial would start on 23 June 1987 and continue on nine

further dates until 14 July 1987.

        By letter of 22 January 1987 to the applicant, his official defence

counsel, referring to a conversation with the applicant of 21 January,

confirmed that, under the circumstances of the present case, in

particular the state of proceedings, a request for interim measures

(einstweilige Anordnung) to the Federal Constitutional Court (Bundes-

verfassungsgericht) would be inadmissible.

        On 25 January 1987 the applicant lodged an appeal (Beschwerde)

against the decision of 14 January 1987 with the Düsseldorf Court of

Appeal (Oberlandesgericht) and requested that the proceedings be

discontinued.  He referred in particular to the length of the

proceedings and submitted that having regard to the period of time

which had elapsed since the offences were allegedly committed he could

no longer properly secure his defence.

        On 13 May 1987 the Düsseldorf Court of Appeal declared the

appeal inadmissible on the ground that the Regional Court's decision

of 14 January admitting the indictment was not subject to appeal.

        On 23 June 1987 the Düsseldorf Regional Court interrupted the

trial and adjourned it sine die in view of the applicant's request to

discontinue the proceedings, the reasons of which he would submit in

writing.

        On 18 August 1987 the Federal Constitutional Court rejected

the applicant's constitutional complaint (Verfassungsbeschwerde)

against the decision of 23 June 1987.  It found that the decision to

adjourn the proceedings did not prejudice the applicant as the

Regional Court thereby only intended to enable him to submit his

further arguments.

        On 26 August 1987 the Düsseldorf Regional Court discontinued

the proceedings under S. 206a of the Code of Criminal Procedure on the

ground of the excessive length of the proceedings. (Under this Section

the Court may discontinue proceedings once the trial has started,

provided there is a procedural bar (Verfahrenshindernis).)  It also

decided that the cost of the proceedings and the applicant's necessary

costs and expenses be borne by the Treasury.

        The Court, referring to the right to a hearing within a

reasonable time under Article 6 para. 1 of the Convention and the

Convention organs' case-law in this respect and to the rule of law

(Rechtsstaatsprinzip) under the German Basic Law (Grundgesetz), found

that, in very exceptional cases, an excessive length of proceedings

could constitute a procedural bar.  The Court noted that at no stage

the applicant had impeded or delayed in any way the course of the

proceedings.  It considered that, in the present case, the proceedings

had, without the applicant's fault, lasted extremely long.

Furthermore it had regard to his detention on remand and the

provisional withdrawal of his driving licence.  The Court concluded

that there was no longer any substantial interest in further

prosecution and that it could not be accepted that the proceedings

should be continued.  In its decision, the Court made specific

references to the Convention, stating that a procedure lasting for

more than ten years was excessive according to the case-law of the

European Court of Human Rights and that a right to discontinuance of

proceedings could be deduced from Article 6 para. 1 of the Convention.

        On 10 September 1987 the Düsseldorf Public Prosecutor's Office

lodged an appeal (Beschwerde) against that decision and submitted the

reasons for the appeal on 27 October 1987.  The Public Prosecutor's

Office considered in particular that, though the right to a hearing

within a reasonable time under Article 6 para. 1 of the Convention and

the rule of law as guaranteed by the Basic Law appeared to be violated

in the present case, the Court should not have decided to discontinue

the proceedings.  Rather the Court should have taken the length of the

proceedings into account when deciding upon the sentence.

        On 4 December 1987 the Public Prosecutor's Office informed the

Düsseldorf Regional Court that it withdrew the appeal.

        Also on 4 December 1987 the Düsseldorf Regional Court decided,

in accordance with S. 6 para. 1 (2) of the Act on Compensation for

Prosecution Measures (Gesetz über Entschädigung für Strafverfol-

gungsmassnahmen), not to grant the applicant compensation for his

detention on remand, the search of his home and his prison cell and

the provisional withdrawal of his driving licence.

COMPLAINTS

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

Convention that his committal to trial and the holding of the trial

violated his right to a fair hearing within a reasonable time.

        He considers that the overall time of more than 14 years spent

until now cannot be justified by the complexity of the case.  He

himself had in no way contributed to the length of the proceedings.

The length stemmed exclusively from the way in which the German

authorities handled the case, in particular from the fact that they

were inactive for several years due to their burden of work.

2.      The applicant furthermore complains under Article 6 paras. 1

and 3 (b) and (c) of the Convention that his rights of defence and his

right to a fair hearing were violated.  He considers that, after the

expiration of a period of 14 to 18 years after the offences were

allegedly committed, it is impossible to remember details.

3.      As regards the condition as to the exhaustion of domestic

remedies under Article 26 of the Convention the applicant submits that

under German law committals for trial, and orders fixing dates for

trial, are not subject to appeals.  He refers, in this respect, to the

decision of the Düsseldorf Court of Appeal of 13 May 1987.

Furthermore he considers that a constitutional complaint (Verfassungs-

beschwerde) would not have been an effective remedy.  He submits that

according to the constant case-law of the Federal Constitutional Court

a constitutional complaint can in principle only be lodged after a

final decision was taken in the ordinary proceedings, whereas

interlocutory decrees (Zwischenentscheidungen) and court orders

(gerichtliche Verfügungen) such as committals for trial, a summons or

the fixing of hearings cannot be independently complained of.

Referring to the decisions of the Commission on the admissibility of

Applications No. 8499/79 (Dec. 7.10.80, D.R. 21 p. 176), No. 8961/80

(Dec. 8.12.81, D.R. 26 p. 200) and No. 10474/83 (Dec. 6.5.86) the

applicant submits that these cases concerned civil proceedings in

which at least judgments at first instance had been given.  Those

applicants had to ensure the implementation of their private rights in

civil proceedings.  In the present case, the problem was rather the

continuation of the proceedings after such a long time.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 15 June 1987 and registered on

25 June 1987.

        On 7 October 1987 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits of the application.

        The Government's observations dated 5 January 1988 were

received on 8 January 1988.  The applicant submitted his reply on 17

February 1988.

SUBMISSIONS OF THE PARTIES

A.      The Government

I.      Issue of being a "victim" (Article 25 para. 1 of

        the Convention)

        The Government, referring to the Convention organs' case-law,

maintain that the applicant can no longer claim to be a victim of a

violation of his rights under the Convention.

        They consider that the Düsseldorf Regional Court, in its

decision of 26 August 1987, expressly acknowledged that the criminal

proceedings against the applicant had lasted unreasonably long and

thus violated Article 6 para. 1 of the Convention.

        Furthermore the Court discontinued the proceedings although

prosecution of the offences in question was not yet time-barred and it

decided that the costs of the proceedings and the applicant's

necessary costs and expenses be borne by the Treasury.  The Government

submit that the Regional Court thus also granted full redress for the

violation of the applicant's right to a hearing within a reasonable

time under Article 6 para. 1 of the Convention.

II.     As to the exhaustion of domestic remedies (Article 26

        of the Convention)

        The Government submit that the applicant did not request the

competent Regional Court to fix a trial within a reasonable time.  They

also maintain that at the trial the applicant could have lodged the

request to discontinue the proceedings because of their unreasonable

length - as he in fact did after having lodged his application with

the Commission - and, if necessary, he could then have lodged a

constitutional complaint with the Federal Constitutional Court in this

respect.

III.    Conclusion

        The Government request the Commission to strike the

application off the list of cases (Article 44 para. 1 of the Rules of

Procedure) or, in case the applicant should maintain his application,

to declare it inadmissible under Article 27 para. 2 of the Convention

on the ground that he can no longer claim to be a victim, or,

alternatively, to declare it inadmissible for non-exhaustion of domestic

remedies within the meaning of Article 26 in conjunction with Article

27 para. 3 of the Convention.

B.      The applicant

I.      The applicant claims that he is still victim of a violation of

his rights under the Convention.

        He alleges that the Düsseldorf Public Prosecutor's Office, in

the reasoning as to its appeal against the Regional Court's decision

of 26 August 1987 to discontinue the proceedings, denied a violation

of his rights under the Convention.  When the Office then withdrew the

appeal it did not expressly acknowledge such a violation.

        The applicant submits that he was not informed about the

withdrawal of that appeal.  Having examined the case file he considers

that, after communication of the present application to the German

Government, the Government advised the Public Prosecutor's Office to

withdraw its appeal in order to avoid the finding of a violation of

the Convention in the present case and the payment of adequate

compensation.  The applicant, in this respect, submits that he was

detained on remand, his premises and his prison cell were searched and

his driving licence was provisionally withdrawn.  He considers that he

is entitled to compensation for these material and immaterial damages

and, therefore, need not be satisfied with the mere decision to

discontinue the proceedings.  The refusal of such compensation

violates Article 6 para. 2 of the Convention on the ground that the

decision to discontinue criminal proceedings cannot be considered as

an advantage for an innocent person.

II.     As regards the exhaustion of domestic remedies within the

meaning of Article 26 of the Convention the applicant submits that

under the Convention he was not obliged to accelerate the criminal

proceedings against him.  Furthermore he repeats his submission that

he could not have lodged a constitutional complaint in the present

case and, in this respect, refers to the Federal Constitutional

Court's decision of 18 August 1987.

THE LAW

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

the Convention about the length of the criminal proceedings against

him. He has declared that he maintains this complaint even after the

proceedings which were instituted in 1973 have been discontinued by

the Düsseldorf Regional Court on 26 August 1987 because of their

excessive length.

        The Commission recalls that an applicant can no longer claim

to be a victim within the meaning of Article 25 para. 1 (Art. 25-1) of

the Convention of a failure to observe the "reasonable time"

requirement in Article 6 para. 1 (Art. 6-1) of the Convention if the

relevant courts expressly acknowledged the existence of a breach of

that provision and if redress has been given (Eur.  Court H.R., Eckle

judgment of 15 July 1982, Series A no. 51, p. 31 para. 67, p. 32

paras. 69-70, p. 39 para. 94; Eur.  Comm.  H.R., No. 8858/80, Dec.

6.7.83, D.R. 33 p. 5).

        In the present case, the Commission notes that the Düsseldorf

Regional Court, in its decision of 26 August 1987, expressly

recognised a violation of Article 6 para. 1 (Art. 6-1) of the

Convention due to the unreasonable length of the criminal proceedings

against the applicant.  In order to give redress in this respect the

Court discontinued the proceedings and ordered that the costs of the

proceedings and the applicant's necessary costs and expenses be borne

by the Treasury.  The Public Prosecutor's Office, in the reasoning

concerning its appeal against that decision, also assumed that there

was a breach of Article 6 para. 1 (Art. 6-1) of the Convention but it

considered the Court's conclusion that this breach constituted a

procedural bar to be wrong.  The appeal was withdrawn in January 1988.

        The Commission furthermore notes that in the domestic

proceedings the applicant had requested the Düsseldorf Court of Appeal

in January 1987 and the Düsseldorf Regional Court at the trial on

23 June 1987 to discontinue the criminal proceedings because of their

unreasonable length.

        The Commission finds that in these particular circumstances

the applicant was given adequate redress for his complaints under

Article 6 para. 1 (Art. 6-1) of the Convention concerning the length

of the criminal proceedings against him by the Düsseldorf Regional

Court's decision that the proceedings in question be discontinued and

that the costs of the proceedings and the applicant's necessary costs

and expenses be borne by the Treasury.

        It follows that the applicant is no longer a victim of the

alleged violation of Article 6 para. 1 (Art. 6-1) of the Convention.

His complaint must therefore be rejected as being manifestly

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