The European Commission of Human Rights sitting in private on 12 March

1986, the following members being present:

                  MM. C.A. NØRGAARD, President

                      J.A. FROWEIN

                      F. ERMACORA

                      G. JÖRUNDSSON

                      G. TENEKIDES

                      S. TRECHSEL

                      B. KIERNAN

                      A.S. GÖZÜBÜYÜK

                      A. WEITZEL

                      J.C. SOYER

                      H.G. SCHERMERS

                      G. BATLINER

                      J. CAMPINOS

                      H. VANDENBERGHE

                  Mrs G.H. THUNE

                  Sir Basil HALL

Mr J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 August 1980 by

E.S. against the Federal Republic of Germany and registered on 19

November 1980 under file No. 9182/80;

Having regard to:

- the report provided for in Rule 40 of the Rules of Procedure of the

Commission;

- the decision of 16 March 1984 to communicate the application for

observations on admissibility and merits in so far as the applicant

complains of the length of two criminal proceedings against him;

- the observations submitted by the respondent Government on 3 July

1985 and the applicant's reply of 6 August 1985 and 15 October 1985;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1928 and living in

Oldenburg.  He is a tax consultant (Steuerberater) by profession. When

lodging the application he was in detention on remand.

In 1973 extensive investigations were started against the applicant

and others by the Public Prosecutor's Office at the Oldenburg Regional

Court in view of economic crimes, and by the Bureau of Investigations

of Tax Offences in view of tax evasion offences.  On 20 February 1973

an expert (K) was ordered to establish a report on the financial

transactions of several companies with which the applicant was

connected.  On 23 February 1973 a search (Hausdurchsuchung) was

effected in respect of the applicant and various documents were

seized.  On 25 May 1973 the applicant was informed that the tax

authorities opened criminal proceedings (Steuerstrafverfahren) against

him.

1.      The proceedings concerning the so-called Astra complex

On 3 July 1973 the expert K submitted a report concerning a complex of

suspected offences relating to a company called Astra.  In 1976 the

proceedings concerning the Astra complex were severed and prosecuted

independently.  On 25 May 1977 the applicant was convicted by the

Oldenburg Regional Court (Landgericht) in respect of this complex of

fraud and tax evasion.  On 7 April 1978 the Federal Court

(Bundesgerichtshof) quashed the judgment and sent the case back for a

new trial before the Regional Court at Hildesheim.  This decision was

mainly based on the ground that the amount of tax losses

(Steuerverluste) caused by the criminal offences was not clearly

established.

In January 1979 the applicant was indicted in separate proceedings

(see below under 2) concerning another complex of offences relating to

a company called Terra.  In view of these proceedings the Hildesheim

Regional Court requested the Public Prosecution at Oldenburg on 5 May

1981 whether the result of the so-called Terra proceedings might have

consequences for the Astra proceedings.  The Public Prosecution

replied in letters of 25 June and 16 July 198 that it was intended to

proceed in accordance with Section 154 of the Code on Criminal

Proceedings (StPO) as soon as the Terra proceedings were terminated.

On 21 September 1981 the applicant was informed accordingly.

On 9 January 1984 the Hildesheim Regional Court provisionally

discontinued the proceedings concerning the Astra complex on the

ground that the sentence liable to be passed at the end of the

proceedings was negligible in comparison with one already imposed on

the accused by final judgment in another matter (Sec 154 StPO).

On 23 October 1985 the Hildesheim Regional Court

- rejected as being inadmissible the applicant's request to

discontinue the proceedings definitively;

- imposed the costs of the proceedings on the Treasury except for the

applicant's necessary expenses;

- refused compensation for a search and seizure effected with regard

to the applicant.

As regards the applicant's request to discontinue the proceedings

definitvely the court stated that the proceedings were already ended

with binding force (rechtskräftig beendet) and could therefore no

longer be subject of a further decision.  If the discontinuance

(Einstellung) was called "provisional" this was only due to the fact

that the proceedings could be taken up under the conditions stated in

Section 154 para 3 StPO (para 3: have proceedings been discontinued

on account of another sentence, they may be taken up again, provided

prosecution is not barred by the statute of limitations, if the

sentence later becomes void).

2.      The proceedings concerning the so-called Terra complex

In the course of the proceedings concerning the Astra complex criminal

charges (Strafanzeigen) were also laid relating to the so-called Terra

complex.  Terra was the name of a company with limited liability owned

by the applicant and a co-accused, C.  On 11 July 1974 the expert K

submitted a report concerning this complex.  On 18 February 1976 the

applicant was heard as suspect (Beschuldigter).  On 15 April 1977 a

report on tax evasion (Steuerfahndungsbericht) was submitted to the

Public Prosecution incriminating also the expert K.

Due to other urgent work the investigations were not continued before

October 1977 when witnesses were heard and documentary evidence was

obtained.

In December 1977 the investigations had again to be interrupted on

account of other work.

On 18 September 1978 the Public Prosecution charged another expert (T)

to prepare a report on the Terra complex.  This report was submitted

on 20 October 1978.

On 18 November 1978 the applicant was invited to appear on 28 November

1978 to be heard in the Terra case.  His counsel replied that the

applicant refused to make any statements.

On 31 January 1979 an indictment was filed against the applicant and

two co-accused, namely his brother and C.  The applicant was accused

of tax evasion in six cases, fraud in 47 cases, forgery in forty

cases, all committed between 1969 and 1973 together with the other

co-accused.  The indictment comprised 280 pages, named more than sixty

witnesses and referred to extensive documentary evidence (seven

volumes and four dossiers (Ordner) of files; 39 dossiers with

documentary evidence; ten volumes of additional files (Beiakten);

13 dossiers with bank account slips; ten tax evasion files with

additional files; four boxes with accounting material.

Shortly before the opening of the trial the applicant had been

arrested, on 12 February 1980, and kept in detention on remand until

30 June 1982.  His requests to be released were, in second instance,

rejected by the Oldenburg Court of Appeal.  On 7 July 1980 a group of

three judges of the Federal Constitutional Court rejected a

constitutional complaint against two of these decisions (dated 23

April and 12 May 1980).

The trial was opened (Eröffnungsbeschluss) on 16 March 1980, began on

25 May 1980 and after 52 days of hearings, the applicant was convicted

by the Oldenburg Regional Court (Landgericht) on 25 November 1980 of

tax evasion in six cases, one of which in conjunction with fraud and

forgery.  He was sentenced to five years' imprisonment.  The court

further ordered that for a period of five years he was not allowed to

work as a tax consultant.  The judgment comprised 537 pages.

The court rejected as being unfounded the applicant's argument that

prosecution concerning the Terra complex was barred by the statute of

limitations.

The applicant had submitted in this respect in a memorial dated 18

November 1982 that the Terra and Astra investigations constituted two

distinct proceedings and that up to at least 1973 the investigations

exclusively concerned the Astra complex.  In particular an

interrogation in 1971 by the police was not at all related to the

Terra complex.  The Regional Court decided that a search and seizure

order given against the applicant by the Oldenburg District Court on

10 December 1973 interrupted the time limit concerning the statute of

limitations (see pp 486 et seq of the judgment of 25 November 1980).

As regards the merits of the case the court found that the applicant

and his co-accused had founded several shipping companies which did

not exercise any commercial activities.  They sold shares concerning

these companies to various persons under the false pretence that the

purchasers thereby acquired a participation in a ship and the

possibility of important write-offs for losses.  The damage caused to

the shareholders amounted to some 3.5 million DM.  As all sales were

effected in accordance with one and the same plan, the court

considered that they formed one single offence of fraud.  Vis-à-vis

the tax authorities the co-accused had committed tax evasion in the

amount of several million DM by establishing false attestations

concerning alleged depreciations.

In fixing the sentences the trial court stated (p 512) that for all

three defendants it considered the long duration of the

investigations, which was not caused by their own behaviour, to be a

mitigating factor.  Had they been convicted shortly after the

committal of the criminal acts they would have had to reckon with

considerably higher sentences (p 512 of the judgment of 25 November

1980).

As regards the fraud complex, the court considered there were

aggravating circumstances justifying the application of Section 263

(3) of the criminal Code (StGB) providing punishment of between one

and ten years' imprisonment.  The court then fixed the following

separate sentences for the different complexes:

- four years' imprisonment for the complex involving tax evasion,

fraud and forgery;

- one year six months and two years respectively for each of the

remaining five complexes of tax evasion.

Including the highest separate sentence of 4 years, the court formed,

in accordance with Section 54 StGB a global sentence (Gesamtstrafe) of

five years.

The applicant received a copy of the judgment of 25 November 1980 on

25 May 1981.  He appealed and on 22 June 1981 his defence counsel

submitted the reasons for the appeal.  The Public Prosecutor replied

on 31 August 1981 and 29 September 1981.  On 25 May 1982 the Federal

Court partly quashed the judgment appealed from and decided that the

applicant was guilty of three counts of tax evasion, one of which was

committed in conjunction with fraud and forgery.  The Federal Court

considered that the Regional Court wrongly considered certain tax

evasion manipulations to constitute separate offences (Tatmehrheit)

while they had to be considered as a single offence (Tateinheit).

The court sent the case back to the Regional Court in so far as new

sentences had to be fixed.  Insofar as the applicant had complained

that the trial court wrongly rejected a motion challenging one of the

judges the Federal Court found his allegations were not sufficiently

substantiated and his complaint could therefore not be examined as he

failed to indicate the part of the file which allegedly proved that

his complaint was well founded.

On 16 July 1982 a group of three judges rejected a constitutional

complaint which the applicant had lodged in respect of his conviction

and sentence as confirmed by the Federal Court.  It is stated, inter

alia, in the decision that even supposing the criminal proceedings

were unreasonably long this would not bar prosecution.

On 22 November 1982 the applicant was again sentenced by the Oldenburg

Regional Court to a total of five years' imprisonment.  The court also

ordered that for five years the applicant was not allowed to exercise

a tax consulting profession or to deal with shares for shipping

companies.  In fixing the sentences for the three offences which the

applicant was held guilty of, the court stated that the length of the

investigation proceedings, which was not caused by the defendants, was

a mitigating factor.

Considering all aggravating and mitigating factors it fixed separate

sentences (Einzelstrafen) of four, two and three years respectively.

In fixing the separate sentences the court took into account as a

mitigating factor the length of the investigation proceedings.  The

long duration of these proceedings, so the court pointed out, was not

caused by the defendants (Ferner fiel die lange Ermittlungsdauer die

nicht durch ihr Verhalten bewirkt worden ist, strafmildernd ins

Gewicht).  The separate sentences were combined to a global sentence

(Gesamtstrafe) of five years' imprisonment.  In forming the global

sentence the court pointed out that it again took into account that

the investigation proceedings were quite long (... dass das

Ermittlungsverfahren recht lange gedauert hat).  The court added that

particularly in view of the applicant's leading role and the damage

caused ruthlessly by him, he nevertheless deserved a heavier sentence

but the interdiction of 'reformatio in peius' prevented the court from

exceeding five years, a term which was situated in the lower range of

the global sentence that had to be formed.

The applicant and the two co-accused again appealed and the appeals

were rejected by the Federal Court on 30 August 1983.  The Federal

Court only amended the order concerning professional interdiction

limiting it to tax consulting activities.  As regards the complaint

concerning the length of the proceedings the Federal Court pointed out

that the long duration (lange Dauer) of the investigation proceedings

had been taken into account by the trial court both in fixing the

separate sentences and in fixing the global sentence.  The subsequent

court proceedings, so the Federal Court added, did not disclose any

important delays taking into account the extreme complexity

(umfangreicher Prozessstoff) of the matter.

The applicant lodged another constitutional complaint which was

rejected on 14 December 1983 by a group of three judges of the Federal

Constitutional Court as offering no prospects of success.  As regards

the complaint on the length of the proceedings it is pointed out in

the decision that both the Regional Court and the Federal Court

expressly acknowledged that the investigation proceedings were long

and that this length was not caused by the defendants.  In fixing the

separate sentences the Regional Court had, in spite of aggravating

factors, in particular damages caused by the applicant in the amount

of several million DM, by far not exhausted the scale of possible

punishments.  In fixing the global sentence the Regional Court again

took into account the length of the investigating proceedings and

reached a result at the lower range of the limits fixed by Section 54

of the Code on Criminal Proceedings.  Consequently there was nothing

to show that the criminal courts had not duly drawn the consequences

of inordinate length of the proceedings.  (Die nicht vom

Beschwerdeführer verursachte lange Dauer des Ermittlungsverfahrens ist

vom Landgericht und auch vom Bundesgerichtshof ausdrücklich

festgestellt worden.  Das Landgericht hat diesen Umstand bei der

Bemessung der Einzelstrafen strafmildernd berücksichtigt;  dabei hat

es in sämtlichen Fällen ungeachtet gewichtiger Strafschärfungsgründe,

insbesondere eines Schadens in Millionenhöhe, den Strafrahmen bei

weitem nicht ausgeschöpft.  Es hat den Umstand ferner nochmals bei der

Gesamtstrafenbildung, deren Ergebnis der unteren Grenze des nach § 54

Abs 1 Satz 1, Abs 2 Satz 1 StGB Zulässigen nahekommt, berücksichtigt.

Bei dieser Sachlage ist nicht ersichtlich, dass die Fachgerichte hier

verfassungsrechtlich geforderten Folgerungen aus überlanger

Verfahrensdauer nicht Rechnung getragen hätten.)

The applicant's subsequent request for a retrial was to no avail.

His requests to set aside or to stay the execution of the order

forbidding the exercise by him of a tax consultant's activity was

likewise unsuccessful.  A constitutional appeal concerning this matter

was rejected on 8 October 1985 as offering no prospects of success.

COMPLAINTS

The applicant mainly complains of the length of the two criminal

proceedings against him.  He submits that he was charged already in

1971 and refers to p 497 of the Oldenburg trial court's judgment of 25

November 1980 concerning the Terra complex where it is stated that he

was already informed on 6 October 1971 that investigations had been

instituted against him.  With regard to the Terra proceedings he

argues that in particular the investigation proceedings and the period

from the filing of the indictment until the judgment of 25 November

1980 were unreasonably long.  Furthermore he submits that the

presiding judge at the first trial had previously worked in the Public

Prosecutor's Office and in an adverse law firm.

In his previous submissions he also complained of his detention on

remand and considered that in view of the length of the proceedings,

the statute of limitations and his own efforts to prevent unlawful

transactions he was wrongly convicted and sentenced.

He invokes Art 5 (1)(c) (art. 5-1-c) and (3) (art. 5-3) and Art 6 (1)

(art. 6-1) of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

Having adjourned the examination of the case in view of domestic

remedies of which the applicant availed himself subsequent to the

filing of his application the Commission decided on 16 March 1984 to

communicate for observations on admissibility and merits the complaint

on the length of the proceedings.  The Government's observations dated

28 June 1985 were received on 3 July 1985 and the applicant's reply

was submitted on 5 August 1985.  In his reply the applicant requested

the adjournment of the examination of the complaint concerning the

Astra proceedings pending his request to the Regional Court to

discontinue these proceedings definitively.  This request was repeated

in a letter of 15 October 1985.  With this letter the applicant raised

a complaint concerning a refusal of the competent courts to set aside

or to stay the execution of the order forbidding him the exercise of a

tax accountant's activity.

By letter of 1 November 1985 the applicant submitted the Hildesheim

Regional Court's order of 23 October 1985 and requested the Commission

to resume the examination of the complaint concerning the Astra

complex.

SUMMARY OF THE PARTIES' OBSERVATIONS ON ADMISSIBILITY AND MERITS

The respondent Government

1.      On the proceedings in the Astra complex

In view of the eventual discontinuation of the Astra proceedings in

accordance with Section 154 StPO it was, for reasons of procedural

economy, indicated to await the outcome of the Terra proceedings.

This served the applicant's interests at the same time. In fact he did

not raise any objections against the interruption of the Astra

proceedings pending the outcome of the Terra proceedings. From his

viewpoint the interruption was a possibility of obtaining a rebate on

the sentence he had to expect.  As expected the proceedings were

eventually discontinued and their interruption consequently benefitted

the applicant.  In these circumstances he could not claim to be the

victim of lengthy proceedings.

In any event he was no longer a victim because the discontinuance of

the Astra proceedings was a consequence also of their length and thus

remedied any possible violation.

Furthermore the applicant had, with regard to the Astra proceedings,

failed to exhaust domestic remedies as he neither invoked Art 6

(art. 6) before the Hildesheim Regional Court nor did he lodge a

constitutional complaint ont he length of these proceedings.

2.      On the proceedings in the Terra complex

The German courts in substance acknowledged a violation of Art 6 (1)

(art. 6-1) of the Convention on account of the length of the initial

proceedings and granted redress by way of a substantial and reasonable

reduction of sentence.

It is pointed out that the first trial court's judgment was quashed

for the only reason that the Federal Court considered certain offences

to have been committed concomitantly (tateinheitlich) while the

applicant's guilt remained unchanged.  Nevertheless the second trial

court considered a total of only nine years of separate sentences

(Einzelstrafen) to be adequate while the first trial court had fixed

separate sentences of a total of thirteen years.  Although the global

sentence (Gesamtstrafe) after the second trial amounted again to five

years, it had to be noted that in view of the damage of several

million DM caused by the applicant the court considered a more severe

sentence to be adequate but nevertheless remained in the lower range

of possible sentences as in fact the global sentence exeeded the

highest separate sentence by one year only while Section 54 (1) and

(2) StPO only required that the global sentence did not attain the

total of the separate sentences (ie nine years).

A comparison with sentences imposed at the same time by the Oldenburg

Regional Court in similar cases but without having to mitigate the

sentence on account of length of proceedings also showed that the

applicant profited of a substantial reduction of sentence:

damage DM 1,400,000 - four years' imprisonment

damage DM 1,500,000 - four years' imprisonment

damage DM 4,500,000 - six years' imprisonment

damage DM 2,700,000 - five years and six months' imprisonment

damage DM 930,000 - three years and ten months' imprisonment.

In the Terra complex the damage caused by the applicant was several

times more important than in the cases just cited.  It was thus

evident that the applicant benefitted from a substantial reduction of

sentence, ie a reduction of several years.  Therefore he was no longer

victim of the alleged violation.

In any event, his complaint was manifestly ill-founded.

In the Terra complex the applicant was not formally charged before 18

February 1976 when he was first heard as a suspect.  The applicant had

himself argued before the trial court that previous prosecution

measures concerned the Astra complex and not the Terra complex.

Although the pre-trial proceedings were rather lengthy it had to be

taken into account that after 18 February 1976 the Public Prosecutor

first had to await the result of tax investigations

(Steuerfahndungsbericht).  This result was available on 15 April 1977.

However, due to the Public Prosecutor's workload the investigations

could not be continued before October 1977 and had again to be

interrupted from December 1977 to September 1978.  Subsequently they

were carried through without further delay.

After the filing of the indictment on 22 March 1979 the trial could

not start before 18 March 1980 because the competent chamber of the

trial court, which was specialised in commercial crimes, first had to

terminate other matters.  After the beginning of the trial no more

delays occurred.

It was unavoidable that from time to time delays occurred with regard

to certain matters on account of priority which had to be given to

other important pending matters.  In particular with regard to

commercial crimes it was impossible for reasons of organisational and

financial character always to keep in reserve a specialised chamber

which could at any given moment immediadetly start to deal with a new

case.  It was therefore unavoidable that a chamber specialised to deal

with commercial crimes may from time to time first have to finish an

important pending trial before it can deal with a new matter.  On the

other hand it was also in the interest of procedural economy and

speediness that only a specialised chamber deal with commercial

crimes.  Taking into account that the applicant's case was of extreme

complexity, necessitating, inter alia, tax inquiries with regard to

the companies and the repercussion of tax fraud manipulations with

regard to 170 company members, the Terra proceedings, judged as a

whole, did not, in the particular circumstances, exceed a reasonable

time.  In this context it had also to be taken into account that the

length of the proceedings was considered as a mitigating factor.

The applicant

1.      As regards the Astra proceedings

The applicant submits that since 7 April 1978 when the Federal Court

quashed the trial court's judgment these proceedings were unduly

delayed and still have not been discontinued definitively.  He

therefore considers himself to be a victim of the alleged violation of

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

2.      As regards the Terra proceedings

The applicant mainly alleges undue delays at the stage of the

investigation proceedings but also considers that the proceedings as a

whole were too long.  He argues that thereby he was negatively

affected because the fact finding became more difficult.  He also

points out that the costs of his defence were very high and that his

punishment after the second trial was severe.  He considers that after

more than eight years it could no longer be expected from him that he

manifested any particular signes of repentance, while the trial court

considered his attitude an aggravating factor and imposed the same

sentence than after the first trial maintaining even the interdiction

of his professional activity as a tax consultant.  According to the

applicant he would only have had to reckon with a maximum penalty of

three and a half years' imprisonment had he been tried within a

reasonable time.  Also, a comparison between the two judgments given

against him by the trial court showed that he was given no redress for

the undue length of the proceedings which caused substantial physical

and psychological stress and led to the destruction of his

professional career as a tax consultant.

THE LAW

1.      The applicant has complained of the length of the criminal

proceedings relating to the so-called Astra complex.

It is true that Art 6 (1) (art. 6-1) of the Convention secures to

everyone charged with a criminal offence the right to speedy

proceedings.

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 Art 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 was informed on 21 September 1981

that it was intended to apply Sec 154 StPO (ie to discontinue the

Astra proceedings) as soon as the Terra proceedings were terminated.

He has not shown that he objected to this way of handling the case. In

particular he failed to lodge a constitutional complaint about the

length of the Astra proceedings.

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 Art 27 (3) (art. 27-3) of the

Convention.

2.      The applicant further complains of the length of the criminal

proceedings concerning the Terra complex which led to his being

sentenced to five years' imprisonment.  He also complains of the

length of his detention on remand and alleges violations of Arts 6 (1)

(art. 6-1) and 5 (3) (art. 5-3) of the Convention which guarantee the

right to a fair hearing within a reasonable time and the right of a

detained person to a trial within a reasonable time.

(a)  As regards detention on remand, it lasted from 12 February 1980

until 25 November 1980 when the applicant was convicted in first

instance.  His subsequent detention is, for the purpose of Art 5

(art. 5), to be considered as detention under Art 5 (1)(a)

(art. 5-1-a). The period in question does in no way appear to be

excessive. This part of the application consequently is manifestly

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

Convention.

(b)  Contrary to the period of detention on remand, the period of the

whole proceedings is rather substantial regardless of the question

whether the applicant was already charged in 1971 or at a later

moment.  However, the Commission considers for the following reasons

that it does not have to examine the "reasonableness" of the duration

of the proceedings in question.

According to the jurisprudence of the Commission and the Court, the

failure to observe the "reasonable time" requirement in Art 6 (1)

(art. 6-1) cannot, with regard to criminal proceedings, in principle

be remedied simply by mitigation of sentence.  The Court has, however,

admitted that this general rule can be subject to an exception when

the national authorities have acknowledged either expressly or in

substance the breach of the Convention and afforded redress for it

(Eckle Case, judgment of 15 July 1982, Series A, Vol 51, para 66; see

also Commission's Report in the Eckle Case and Decision on the

admissibility of Application N° 8858/80).

In the present case the trial court acknowledged both in the judgment

of 25 November 1980 and that of 22 November 1982 that the

investigation proceedings had been "long" and "quite long"

respectively, and that this length was not caused by the applicant or

any co-accused.

The length of the proceedings was considered by the court as a

mitigating factor.  It is already stated in the judgment of 25

November 1980 that all defendants would have had to reckon with

considerably higher sentences had it been possible to convict them

shortly after the offences had been committed.

In the judgment of 22 November 1982 it is again pointed out that the

length of the investigation proceedings, which was not caused by the

defendants, was a mitigating factor.  In forming the global sentence

the trial court underligned that it once more took into account that

the investigation proceedings were quite long.  Although the applicant

deserved, according to the court, a heavier sentence, a global

sentence was formed which was, so the court pointed out, situated in

the lower range of the possible global sentence.

The Federal Constitutional Court confirms in its decision of 14

December 1983 that the criminal courts duly took account of the

"inordinate length" of the proceedings ("überlange Verfahrensdauer").

Both the Regional Court and the Federal Court expressly acknowledged,

so the Constitutional Court points out, that the investigation

proceedings were long and that their length was not caused by the

defendants.  The Constitutional Court further points out that in

fixing the separate sentences the Regional Court had, in spite of

aggravating factors, in particular damages caused by the applicant in

the amount of several million DM, by far not exhausted the scale of

possible punishments.  Again, in fixing the global sentence the

Regional Court took into account the length of the investigation

proceedings and imposed a global sentence situated at the lower limits

set by Section 54 of the Code on Criminal Proceedings (StPO).  The

Constitutional Court concludes that the criminal courts thus

adequately drew the necessary consequences of the inordinate length of

the proceedings.

The Commission considers that the above statements can, in the

circumstances of the present case, be interpreted to constitute in

substance an acknowledgement of a breach of Art 6 (1) (art. 6-1)

because by pointing out that the length of the investigation

proceedings was not caused by the defendants the German criminal

courts imply that delays were caused by the investigation authorities.

The Federal Constitutional Court is even more explicit in that it

speaks of the "inordinate" length of the proceedings ("überlange

Verfahrensdauer").

The Commission further considers that in the circumstances of the

present case the mitigation of sentence accorded on account of the

length of proceedings constitutes adequate redress.  To form the

global sentence the court had in its judgment of 22 November 1982 to

consider separate sentences amounting to a total of nine years'

imprisonment.  The lower limit was constituted by a separate sentence

(Einzelstrafe) of four years.  It is thus clear that the global

sentence of only five years was, as the Federal Constitutional Court

pointed out, in the lower scale of the possible verdicts and was quite

lenient because the trial court considered there were a number of

aggravating factors and stressed that the applicant deserved a more

severe sentence.

In these particular circumstances the Commission considers that the

applicant can no longer claim to be a victim of a violation of his

right under Art 6 (1) (art. 6-1) of the Convention to a hearing within

a reasonable time, and this complaint must therefore also be rejected

as being manifestly ill-founded within the meaning of Art 27 (2)

(art. 27-2) of the Convention (cf Decision on the Admissibility of

Application N° 10884/84, 13.12.84, unpublished).

3.      The applicant has further complained that the presiding judge

at the first trial was biased.

It is true that Art 6 (1) (art. 6-1) of the Convention secures to

everyone charged with a criminal offence the right to a fair hearing.

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 Art 26 (art. 26) of the Convention provides that

the Commission may only deal with the matter after exhaustion of

domestic remedies.

In the present case the Federal Court held in its decision of 25 May

1982 that the applicant's complaint concerning bias was

unsubstantiated because the applicant failed to indicate the part of

the file which allegedly confirmed his allegations.  Furthermore the

applicant has not shown that he raised this particular point in his

constitutional complaint.  In these circumstances he cannot be

considered to have exhausted the remedies available to him under

German law.

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 Art 27 (3) (art. 27-3) of the

Convention.

4.      As to the remaining part of the application the Commission

finds that the applicant's allegations are unsubstantiated and do not

disclose any appearance of a violation of the rights and freedoms set

out in the Convention.

It follows that to this extent the application is likewise mannifestly

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

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission         President of the Commission

           (J. RAYMOND)                         (C.A. NØRGAARD)