AS TO THE ADMISSIBILITY OF

Application No. 11947/86

by Hans Josef ANSCHÃœTZ

against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private on

4 May 1987 , the following members being present:

                    MM. C.A. NØRGAARD, President

                        E. BUSUTTIL

                        G. JÖRUNDSSON

                        S. TRECHSEL

                        B. KIERNAN

                        A.S. GÖZÜBÜYÜK

                        A. WEITZEL

                        J.C. SOYER

                        H.G. SCHERMERS

                        H. DANELIUS

                        G. BATLINER

                   Mrs  G.H. THUNE

                   Sir  Basil HALL

                   Mr.  F. MARTINEZ

                   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 24 September 1985

by Hans Josef ANSCHÃœTZ against the Federal Republic of Germany and

registered on 17 January 1986 under file No. 11947/86;

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

applicant, may be summarised as follows.

        The applicant, born in 1929, is a German national and resident

in Berlin.  He is a businessman by profession.  Before the Commission,

he is represented by Prof.  T. Vogler, a law professor in Giessen, and

Dr.  I. Fahrenhorst, a research assistant in Giessen.

        In 1977 the Berlin Public Prosecutor's Office (Staatsanwalt-

schaft) began a preliminary investigation (Ermittlungsverfahren) in

respect of the applicant and two co-accused on charges of fraud in

business transactions.  The first indictment (Anklageschrift) dated

7 May 1980 contained charges of fraud under a particular Berlin

Subsidy Scheme (Berlinförderungsgesetz) and the Investment Assistance

Act (Investitionszulagengesetz).

        Following a leading decision of the Federal Court of Justice

(Bundesgerichtshof) dated 20 June 1980 as to the lawfulness of certain

transactions under the Berlin Subsidy Scheme, the Public Prosecutor's

Office conducted further investigations and drew up a first supplement

to the indictment on 2 December 1980.  In a second supplement of

2 June 1981 the Prosecutor's Office also charged the applicant with

tax evasion.

        The Berlin Regional Court (Landgericht) now expressed doubts

as to the precision of the charges contained in the different

documents and on 1 July 1981 the Prosecutor's Office withdrew the

indictment of 7 May 1980 as well as the two supplements.  It preferred

a new indictment containing charges of fraud, tax evasion, breach of

accounting rules and fraudulent conversion on 15 July 1981.

        On 26 January 1983 the Berlin Regional Court committed the

applicant for trial except on one of the charges of fraud which had

meanwhile become statute-barred.  It furthermore joined the

proceedings with criminal proceedings against the applicant concerning

a charge of fraudulent conversion which were pending before that Court

following a separate indictment of 25 May 1981.

        On 17 May 1983 the Court appointed Mr.  R as official defence

counsel (Pflichtverteidiger) for the applicant.

        The trial opened on 12 July 1983.  At the opening of the

trial, Mr.  H was appointed second official defence counsel.  According

to the applicant H had been disbarred by a decision of the Bavarian

Ministry of Justice (Staatsministerium der Justiz) dated

14 March 1983.

        On 27 September 1983 the Regional Court dismissed the

applicant's challenge of the presiding judge M and the judge V. The

Court found that even assuming that certain evidence in his favour had

not been taken, there was no appearance of partiality of the judges

concerned, as the trial was not yet closed.

        On 7 October 1983 the Regional Court convicted the applicant

on charges of tax evasion, fraudulent conversion and breach of

accounting rules and sentenced him to two years and three months'

imprisonment.  The applicant was acquitted of the charges of fraud.

The Court furthermore issued a warrant of arrest the execution of

which was conditionally suspended on medical grounds.

        In November 1983 the applicant's first official defence

counsel R lodged an appeal on points of law (Revision) to the Federal

Court of Justice (Bundesgerichtshof) which was limited under S. 344 of

the German Code of Criminal Procedure (Strafprozessordnung) to the

general allegation that provisions of substantive law had been

violated (allgemeine Sachrüge).  The time-limit for stating grounds

of appeal (Revisionsgründe) provided for by S. 345 of the Code of

Criminal Procedure expired on 19 February 1984.  Under S. 344 of the

Code of Criminal Procedure the appellant must indicate the extent to

which he appeals against a judgment and he must state the grounds of

appeal.  These grounds must in particular show the extent to which the

appeal on points of law concerns an alleged violation of provisions of

procedural law and/or of substantive law.  According to S. 341 of the

Code of Criminal Procedure the appeal on points of law must in general

be lodged within the period of one week from the date on which the

judgment was pronounced.  According to S. 345 of the Code of Criminal

Procedure the submissions required under S. 344 have to be filed

within a further period of one month, either as a memorial signed by a

lawyer or deposited at the court registry.

        On 6 April 1984, the presiding judge at the Regional Court,

upon the applicant's request dated 24 March 1984, discharged his

official defence counsels.  However, his request to have another

official defence counsel appointed was dismissed on 16 April 1984 on

the grounds that the appeal on points of law had already been

correctly lodged and that he himself could submit further arguments.

        On 1 June 1984, following a statement of the Federal Public

Prosecutor (Generalbundesanwalt) dated 21 May 1984 that according to

the German Code of Criminal Procedure a defence counsel was necessary

pending appeal proceedings, Mr.  M was appointed new official defence

counsel.

        Moreover, on 1 June 1984 the applicant was taken into

detention on remand on the basis of the warrant of arrest dated

7 October 1983.  The suspension of the execution of this warrant had

been revoked on 22 May 1984 on the ground that the applicant had

failed to comply with the conditions fixed by the Court.  The

applicant was released on 17 September 1984.

        On 6 July 1984 the defence counsel M submitted supplementary

pleadings to the Federal Court of Justice as regards the alleged

violations of substantive law.

        On 26 July 1984 the Federal Public Prosecutor's Office

requested the Court to dismiss the appeal on points of law.  This

request was transmitted to the defence counsel M on 27 July 1984 and

he was informed that the Court would normally decide upon the appeal

in its first session upon the expiration of the period of two weeks

for his counter-pleadings.

        On 7 August 1984 the Federal Court of Justice quashed the

judgment of 7 October 1983 insofar as it concerned the applicant's

conviction of fraudulent conversion in two cases and the sentences

imposed.  The remainder of the appeal was dismissed as being

manifestly ill-founded.  The case was referred back to the Regional

Court.

        On 6 September 1984 the Berlin Regional Court discontinued the

criminal proceedings against the applicant with regard to the charge

of fraudulent conversion in two cases.  This decision was taken for

reasons of procedural economy according to S. 154 of the German Code

of Criminal Procedure.

        On 17 September 1984 the Regional Court, after a further

hearing as to the applicant's personal situation, imposed a global

sentence (Gesamtstrafe) of one year and two months' imprisonment for

the remaining offences of tax evasion, fraudulent conversion and

breach of accounting rules.  The execution of the sentence was

suspended on probation.

        In the grounds of this judgment the Court first noted that the

conviction had become final and that its sole task was to fix new

sentences.  In fixing these sentences the Court considered as

mitigating circumstances in particular that the applicant had not been

previously convicted and had not committed further criminal offences

since the period of the criminal acts at issue.  Moreover, the Court

found that the applicant extraordinarily suffered from the length of

the proceedings for which he could not be held responsible ("Der

Angeklagte ist durch die von ihm nicht zu vertretende Dauer des seit

1977 währenden Verfahrens ausserordentlich belastet.").  Aggravating

factors were the amount of damages caused by the tax evasion (81,895

DM) and the fraudulent conversion (43,800 DM), although the applicant

had not enriched himself and had paid the taxes in question later.

The separate sentences (Einzelstrafen) were nine months' imprisonment

for tax evasion, six months' imprisonment for fraudulent conversion

and a fine of 9,600 DM (120 Tagessätze zu 80 DM) for breach of

accounting rules.  When fixing the global sentence the Court had again

regard to the mitigating as well as the aggravating circumstances and,

moreover, to the period of the applicant's detention on remand.

Furthermore it found that the mitigating circumstances, in particular

the extraordinary length of the proceedings for which he could not be

held responsible ("insbesondere die von ihm nicht zu vertretende

ausserordentliche lange Verfahrensdauer"), also constituted special

circumstances in the criminal acts and in his personality which

justified putting him on probation.

        The Court also dismissed the applicant's compensation claims

as regards the various searches of his home and seizures of goods.

        On 24 September 1984 the applicant lodged a second appeal on

points of law; he submitted the grounds of appeal on 20 November 1984.

He referred in particular to alleged procedural errors during the

court proceedings leading to the first judgment of 7 October 1983.  He

submitted inter alia that his first official defence counsel R got a

copy of the indictment only on 12 July 1983 at the opening of the

trial and that his second counsel M was already disbarred.

Furthermore he pointed out that certain requests to take evidence on

his behalf were incorrectly dismissed.  With regard to the first

appeal proceedings he complained that his request to have a new

official defence counsel appointed was incorrectly dismissed by the

Regional Court.  Consequently the appeal procedings could not be

properly prepared on his behalf.  As regards the second proceedings

before the Regional Court the applicant alleged an incorrect

application of the relevant provisions of the substantive penal law.

The applicant also considered that the procedural mistakes relating to

the initial proceedings in 1983 and the excessive length of the

criminal proceedings had not been duly taken into account when his

global sentence was fixed.

        On 27 February 1985 the Federal Public Prosecutor requested

the Federal Court of Justice to dismiss the applicant's appeal on

points of law.  He submitted in particular that the applicant could no

longer complain of alleged procedural errors during the first

proceedings before the Regional Court.  The conviction had become final.

Furthermore, in fixing the sentence the Regional Court had regard to

all relevant mitigating circumstances.

        On 26 March 1985 the Federal Court of Justice dismissed the

applicant's second appeal on points of law.

COMPLAINTS

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

Convention of the length of the criminal proceedings against him.  He

submits that the Regional Court, in its judgment of 17 September 1984,

did not indicate the extent to which the sentence was reduced in view

of the length of the proceedings.

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

and 3 of the Convention that his criminal proceedings before the

Berlin Regional Court in 1983 were not properly conducted and led to

incorrect results.  He submits in particular that he had no hearing by

an impartial court in that the presiding judge had already

participated in other criminal proceedings against him.  He could not

properly defend himself as the indictment was written in a complicated

style and his first official defence counsel R got a copy thereof only

on the first day of the trial, whereas his second counsel H got no

copy at all.  Moreover the Regional Court did not ensure a proper

defence in that the presiding judge chose a defence counsel who was

disbarred.  Finally the Court did not hear certain witnesses on his

behalf.

3.      The applicant also complains under Article 6 paras. 1 and 3 of

the Convention of the alleged unfairness of the first appeal

proceedings before the Federal Court of Justice.  He submits that he

got a new official defence counsel only on 1 June 1984 and that they

could not prepare his defence properly and supplement the appeal as

regards procedural complaints.

4.      The applicant also invokes Article 6 paras. 1 and 3 of the

Convention as regards the second proceedings before the Regional Court

in 1984.  He considers that the proceedings were unfair in that his

counsel was informed about the date of the trial only one day before

it took place and he himself on the same day.

5.      The applicant furthermore complains under Article 6 para. 2 of

the Convention that parts of the proceedings were discontinued for

reasons of procedural economy under S. 154 of the Code of Criminal

Procedure.

6.      The applicant also complains under Article 5 para. 1 (b) of

the Convention that the decision to execute the warrant of arrest was

unlawful.

7.      The applicant finally complains under Article 3 of the

Convention that he was brought handcuffed to his mother's funeral.

THE LAW

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

Convention of the length of the criminal proceedings.  He submits in

particular that in fixing the sentence the German courts did not duly

take the extraordinary length into account.

        Article 6 para. 1 (Art. 6-1) of the Convention provides that in the

determination of any criminal charge against him, everyone is entitled

to a hearing within a reasonable time.  It is true that the criminal

proceedings against the applicant lasted for a very long period,

namely over eight years.  However, the Commission is not required to

decide whether or not the applicant's right to a hearing within a

reasonable time was violated as he can no longer claim to be a victim

of this alleged violation.

        The Commission recalls that an applicant can no longer claim

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

Convention - of his right under Article 6 para. 1 (Art. 6-1) of the

Convention to a hearing within a reasonable time when the national

authorities have acknowledged, either expressly or in substance, and

then afforded redress for, the breach of the Convention (cf.  Eur.

Comm.  H.R., No. 8182/78, Dec. 16.10.80, D.R. 25 p. 142; Eur.  Court

H.R., Eckle judgment of 15 July 1982, Series A no. 51, paras. 66 et

seq.; Eur. Comm.  H.R., No. 8858/80, Dec. 6.7.83, D.R. 33 p. 5).

        In the present case, the Berlin Regional Court acknowledged in

its judgment of 17 September 1984 the extraordinary length of the

proceedings and found that the applicant could not be held responsible

for this length.  Moreover, the Court, in fixing the sentence, took

into account that the applicant had suffered from these lengthy

proceedings.  Furthermore, it suspended the execution of the sentence

on probation, in particular on the ground of the extraordinary length

of the proceedings.

        The Commission notes that the Court did not expressly refer to

Article 6 para. 1 (Art. 6-1) of the Convention.  It nevertheless

considers the above statements in the Regional Court's judgment of 17

September 1984 as being in substance an acknowledgement of a breach of

this provision.  The Court pointed out that the applicant was not

responsible for the length of the proceedings and thus implied that

delays were caused by the judicial authorities.

        Furthermore, the Commission notes that both the mitigation of

the sentence and the suspension of its execution on probation were

granted in particular on account of the extraordinary length of the

proceedings.  It finds that these decisions constitute adequate redress.

        In these particular circumstances, the Commission considers

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

of his right under Article 6 para. 1 (Art. 6-1) of the Convention to a hearing

within a reasonable time.  It follows that the complaint as to the length of

the criminal proceedings must be rejected as being manifestly ill-founded

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

2.      The applicant further complains under Article 6 paras. 1 and 3

(Art. 6-1, 6-3) of the Convention that in the criminal proceedings before

the Berlin Regional Court in 1983 he had no fair hearing by an impartial court.

        It is true that Article 6 para. 1 (Art. 6-1) of the Convention secures

to everyone charged with a criminal offence the right to a fair hearing by an

impartial court and that Article 6 para. 3 (Art. 6-3) of the Convention

guarantees further minimum rights of defence.

        However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a violation

of this provision as, under Article 26 (Art. 26) of the Convention, it may only

deal with a matter after all domestic remedies have been exhausted according to

the generally recognised rules of international law.

        In the present case the applicant's first appeal on points of

law was limited to the general complaint of a violation of substantive

penal law.  He failed to lodge procedural complaints under S. 344 of

the German Code of Criminal Procedure and has to this extent not

exhausted the remedies available to him under German law.  Moreover,

an examination of the case does not disclose the existence of any

special circumstances which might have absolved the applicant,

according to the generally recognised rules of international law, from

exhausting the domestic remedies at his disposal in this respect.

        It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and this complaint must

therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

3.      The applicant also complains under Article 6 paras. 1 and 3

(Art. 6-1, 6-3) of the Convention of the alleged unfairness of the

first appeal proceedings before the Federal Court of Justice.  He

submits in particular that during the period from 6 April until 1 June

1981 he was without a defence counsel.  Moreover, he alleges that his

defence counsel appointed on 1 June 1984 had no time to properly

prepare his defence and to supplement his arguments as to procedural

complaints.

        The Commission recalls that Article 6 para. 1 (Art. 6-1) is in

principle applicable to proceedings before courts of appeal or of cassation.

However, the way in which it applies must clearly depend on the special

features of such proceedings (Eur.  Court H.R., Axen judgment of 8 December

1983, Series A no. 72, p. 12).

        In the present case the applicant failed to show that the

belated appointment of a new official defence counsel rendered the

appeal proceedings as a whole unfair.

        The Commission notes first that the applicant's first official

defence counsel in the appeal on points of law only alleged a

violation of substantive law.  The applicant himself did not avail

himself of the possibility to deposit procedural complaints at the

court registry.  He also failed to show that the official defence

counsel, if immediately appointed upon his request in March 1984,

would still have been able to introduce procedural complaints although

the time-limit under S. 345 in conjunction with S. 341 of the Code of

Criminal Procedure had already expired on 19 February 1984.

        Moreover, as regards the alleged lack of time to prepare the

appeal proceedings concerning the alleged violations of substantive

law, the Commission notes that the defence counsel appointed on

1 June 1984 submitted supplementary pleadings on 6 July 1984.

Furthermore, the Federal Court of Justice, when transmitting the

memorial of the Federal Public Prosecutor's Office dated 26 July 1984,

informed the defence counsel of the time-limit for further arguments

and the regular date for a decision on the appeal on points of law.

Neither the defence counsel nor the applicant submitted further

arguments or requested an extension of the time-limit.

        In these circumstances the Commission finds no appearance of a

violation of the applicant's right, under Article 6 paras. 1 and 3

(Art. 6-1, 6-3) of the Convention, to a fair hearing and to adequate

time for the preparation of his defence in the proceedings before the

Federal Court of Justice.  The applicant's complaints in this respect

are therefore manifestly ill-founded and must be rejected under

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

4.      The applicant also invokes the right to a fair hearing and to a proper

defence under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) as regards the second

proceedings before the Berlin Regional Court in 1984.  He submits in particular

that he and his counsel were informed too late about the date of the trial.

        However, it does not appear that the defence applied for an

adjournment on this ground under S. 217 and 218 of the Code of

Criminal Procedure.  Moreover, in his second appeal on points of law,

as substantiated on 20 November 1984, the applicant only alleged an

incorrect application of substantive penal law.  In particular he did

not complain of the allegedly late information of the date of the

trial on 17 September 1984.  It follows that, in this respect, the

applicant has failed to show that he has exhausted the domestic

remedies available to him under German law in accordance with

Article 26 (Art. 26) of the Convention.

        Moreover, even if the applicant could be considered to have

exhausted domestic remedies with regard to his complaints concerning

the second proceedings before the Regional Court, these complaints

are, in any event, manifestly ill-founded for the following reasons.

The proceedings concerned were limited to fixing new sentences, the

conviction having become final.  At the hearing on 17 September 1984

the Court considered in particular the applicant's personal situation

as one of the circumstances to be taken into account in fixing the

sentence.  Furthermore, the applicant's official defence counsel M

had, at that time, already been dealing with the applicant's case for

about three and a half months and become acquainted with the case as a

whole and the details of the different charges during the preceding

appeal proceedings before the Federal Court of Justice.

        The Commission finds that, in these circumstances, it has not

been shown that the allegedly belated notice of the hearing on 17

September 1984 deprived the applicant of adequate time and facilities

for the preparation of his defence within the meaning of Article 6

para. 3 (d) (Art. 6-3-d) and thus rendered the second proceedings before the

Regional Court as a whole unfair within the meaning of Article 6 para.

1 (Art. 6-1) of the Convention.

        It follows that the applicant's above complaint must also be

rejected as being manifestly ill-founded within the meaning of Article

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

5.      The applicant further complains under Article 6 para. 2

(Art. 6-2) of the Convention that the discontinuation of part of the

criminal proceedings against him amounted to a violation of the

principle of presumption of innocence.

        The Commission recalls that the presumption of innocence will

be violated if, without the accused having previously been proved

guilty according to law and, notably, without his having had the

opportunity of exercising his rights of defence, a judicial decision

concerning him reflects an opinion that he is guilty.  This may be so

even in the absence of any formal finding; it suffices that there is

some reasoning suggesting that the court regards the accused as

guilty (Eur.  Court H.R., Minelli judgment of 25 March 1982, Series A

no. 62, para. 37).  Problems may therefore arise e.g. in cases where

decisions on costs after suspension or discontinuation or criminal

proceedings imply an appraisal of the guilt of the accused (No.

9688/82, Dec. 16.12.83, D.R. 35 p. 98; Englert v.  Federal Republic of

Germany, Comm.  Report 9.10.85, para. 42; Nölkenbockhoff v.  Federal

Republic of Germany, Comm.  Report 9.10.85, para. 43).

        However, in the present case, the Commission does not find

that the Regional Court's decision to discontinue part of the criminal

proceedings against the applicant for reasons of procedural economy

implied an appraisal of his guilt.  The decision as such does not

suggest that the Court regarded the applicant as guilty of the

offences concerned.

        It follows that this aspect of the application is also manifestly

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

Convention.

6.      The applicant also complains under Article 5 para. 1 (Art. 5-1) of

the Convention that his detention on remand in 1984 was unlawful.

        However, the Commission is again not required to decide

whether or not the facts alleged disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

        In respect of the present complaint the applicant did not show

that he instituted proceedings before the Federal Court of Justice

concerning the allegedly unlawful execution of the warrant of arrest

pursuant to S. 310 of the German Code of Criminal Procedure.  He can

therefore not be considered to have exhausted the remedies available

to him under German law.  Moreover, an examination of the case does not

disclose the existence of any special circumstances which might have

absolved the applicant, according to the generally recognised rules of

international law, from exhausting the domestic remedies at his

disposal.

        It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and his

application must in this respect be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

7.      The applicant finally complains under Article 3 (Art. 3) of the

Convention that during the period of his detention on remand in 1984

he had to attend his mother's funeral being handcuffed and that he was

thus subjected to inhuman and degrading treatment.

        However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a violation

of this provision as, under Article 26 (Art. 26) of the Convention, it may only

deal with a matter after all domestic remedies have been exhausted according to

the generally recognised rules of international law.

        In the present case the applicant has not shown that he

appealed against this measure according to S. 75 of the Code of the

Execution of Detention on Remand (Untersuchungshaftvollzugsordnung)

and has, therefore, not exhausted the remedies available to him under

German law.  Moreover, an examination of the case does not disclose

the existence of any special circumstances which might have absolved

the applicant, according to the generally recognised rules of

international law, from exhausting the domestic remedies at his

disposal.

        It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and his

application must in this respect be rejected under Article 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)