FIFTH SECTION

DECISION

Applications nos . 37963/15 and 40208/15 Markus MINTKEN against Germany and Oktay AYDIN against Germany

The European Court of Human Rights (Fifth Section), sitting on 27 September 2016 as a Chamber composed of:

Ganna Yudkivska, President, Angelika Nußberger, Erik Møse, Faris Vehabović, Yonko Grozev, Síofra O ’ Leary, Mārtiņš Mits, judges, and Milan Blaško , Deputy Section Registrar ,

Having regard to the above applications lodged on 30 July 2015 and 20 August 2015 respectively,

Having deliberated, decides as follows:

THE FACTS

1. The applicant in the first case, Mr Markus Mintken, is a German national who was born in 1967 and lives in Mülheim/Ruhr. He was represented before the Court by Mr N. Noch, a lawyer practising in Duisburg. The applicant in the second case, Mr Oktay Aydin, is a Turkish national who was born in 1973 and lives in Bielefeld. He was represented before the Court by Mr E. Ceylan, a lawyer practising in Duisburg.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. The applicants and another co ‑ accused were involved in call centre businesses. They were arrested on 13 April 2010 and remained in detention until 27 October 2011 when their detention was suspended. On 6 August 2010 both applicants and the other accused were indicted on 47,713 counts of commercial fraud as members of a gang. The Essen Regional Court allowed the charges in a modified form and heard the applicants ’ case over 116 days as from 4 October 2010, hearing over 40 witnesses and experts. During the trial, the first applicant filed 82 and the second applicant 24 requests concerning the taking of evidence.

4. In July 2011 the first applicant and his counsel requested the appointment of another counsel. However, the domestic courts dismissed the request and upheld the appointment of counsel for the first applicant.

5. On 18 July 2013 the applicants were convicted. The first applicant was sentenced to three years and nine months ’ imprisonment; the second applicant received a five-year prison sentence. All three accused lodged an appeal on points of law.

6. The minutes of the hearing comprised over 3,521 pages.

7. On 12 February 2014 the judgment, which ran to more than 1,243 pages, including 1,019 pages specifying the details of the victims of the alleged fraud, was served on the defence. The Regional Court held that it had been impossible to speed up the proceedings as the three accused and counsel for the accused had made numerous applications, inter alia, 368 requests to hear additional evidence, including applications to call several thousand witnesses. More frequent hearings had not been possible because the court had been confronted on almost every single day of the trial by new applications from the defence requesting termination and adjournment of proceedings, rectification of the transcript, consideration of new documents or other objections to the court ’ s handling of the case. As a result, the Regional Court saw no unreasonable delay attributable to the court, and no reason to reduce the sentences on that ground. However, in the sentencing of the applicants it took into account, in their favour, that the proceedings had been long.

8. On 12 March 2014 counsel for the three accused submitted their joint grounds for appeal on points of law to the Federal Court of Justice, comprising 411 pages, thus observing the one ‑ month time ‑ limit prescribed by Article 345 § 1 of the Code of Criminal Procedures (CCP) ( Strafprozessordnung ) (see domestic law, paragraph 12 below) . Their submission included, among others, a complaint that the time to supply the reasons for their appeals on points of law was insufficient.

9. On 14 July 2014 the Federal Prosecutor General made observations on the first applicant ’ s appeal on points of law to which the first applicant responded on 6 August 2014. The relevant dates in the second applicant ’ s case were not submitted.

10. On 6 November 2014 the Federal Court of Justice dismissed the applicants ’ appeals on points of law as far as conviction and sentencing were concerned, finding them manifestly ill ‑ founded without providing further reasons.

11. On 5 February 2015 and 18 February 2015 the Federal Constitutional Court declined to consider the applicants ’ constitutional complaints without providing reasons (file nos. 2 BvR 3069/14 and 2 BvR 10/15).

B. Relevant domestic law and practice

12. The relevant provisions of the CCP concerning reinstatement of proceedings and appeals on points of law, as in force at the relevant time provided:

Article 44

“If a person was prevented from observing a time ‑ limit through no fault of his own, he shall be granted a reinstatement of the proceedings upon application.”

Article 344

“(1) The complainant shall make a statement concerning the extent to which he contests the judgment and is applying for it to be quashed (notices of appeal on law) and shall specify the grounds.

(2) The grounds must show whether the judgment is being contested because of violation of a legal norm concerning the proceedings or because of violation of another legal norm. In the former case the facts containing the defect must be indicated.”

Article 345 § 1

“ Notices of appeal on points of law including the grounds for the appeal shall be submitted to the court whose judgment is being contested no later than one month after expiry of the time ‑ limit for seeking the appellate remedy. If the judgment has not been served by expiry of that time ‑ limit, the time ‑ limit shall start to run upon service thereof.”

Article 347 § 1

“ The notice of appeal on points of law including the grounds therefor shall be served on the complainant ’ s opponent if the appeal on points of law and the notices of appeal on points of law were submitted in time and in the prescribed form. The opponent may submit a written response within one week. ... ”

It is well-established case-law of the criminal courts that the time ‑ limit pursuant to Article 345 § 1 CCP is non ‑ extendable, with the exception of cases in which an admissible request to rectify the judgment is lodged before the end of the time ‑ limit (compare judgment of the Federal Court of Justice of 14 November 1990, file no. 3 StR 310/90).

13. Section 198 of the Court Organisation Act ( Gerichtsverfassungsgesetz ) provides a remedy for unreasonably long proceedings and reads, as far as relevant, as follows:

“(1) Whoever as the result of the unreasonable length of a set of court proceedings experiences a disadvantage as a participant in those proceedings shall be given reasonable compensation. The reasonableness of the length of proceedings shall be assessed in the light of the circumstances of the particular case concerned, in particular the complexity thereof, the importance of what was at stake in the case, and the conduct of the participants and of third persons therein. ...

(3) A participant in proceedings shall obtain compensation only if he has complained about the length of the proceedings to the court seized of the case (censure of delay). ...

(5) A court action to enforce a claim under subsection (1) can be brought at the earliest six months after the filing of the censure of delay. The court action must be brought no later than six months following entry into final and binding force of the decision ending the proceedings, or following another manner of disposal of the proceedings. ... ”

Section 199 § 3, second sentence, of the Court Organisation Act, however, limits the leeway for the compensation court regarding unreasonably long criminal proceedings and reads, as far as relevant, as follows:

“(3) ... Where the accused in criminal proceedings seeks compensation for excessive length of proceedings, the court of compensation shall be bound, in respect of the assessment of the reasonableness of the length of the proceedings, by a decision given by the criminal court.”

14. On 19 February 1998 the Federal Constitutional Court, in the case of an accused who had unsuccessfully requested the extension of the time ‑ limit under Article 345 § 1 CCP, decided by a panel of three judges not to accept the constitutional complaint for adjudication ( file no. 2 BvR 1888/97) . It held that, in general, the statutory one ‑ month time ‑ limit laid down in Article 345 § 1 of the CCP allowed ample time to supply the reasons for an appeal on points of law, even in difficult cases involving economic offences or Nazi crimes. The complainant in that case had not substantiated why, in his individual case, the time available had not been sufficient. The Federal Constitutional Court further found that the complainant had not sufficiently discussed in his complaint whether, in a case in which the reasons for the appeal cannot be drawn up within the statutory time ‑ limit for reasons not attributable to the accused, redress might be found under the provisions governing the reinstatement of proceedings (see Article 44 CCP, paragraph 12 above).

COMPLAINTS

15. The applicants complained under Article 6 § 3 (b) of the Convention that they were given only 28 days from the day the judgment of the Regional Court was served on the defence, to supply the reasons for their appeals on points of law, while the Regional Court had had 29 weeks to draft the judgment and the Federal Prosecutor General had submitted his observations on the appeal four months after the defence had submitted their reasons. Relying on Article 6 § 1 – the second applicant also relied on Article 5 § 3 – of the Convention, the applicants further considered the length of the proceedings unreasonably long.

16. The second applicant, relying on Article 6 § 3 (c) in conjunction with Article 14 of the Convention, further complained that his sentence had not been reduced even though the length of the proceedings had been excessive because the other two defendants had filed a large number of procedural requests.

17. The first applicant also claimed under Article 6 § 3 (a) of the Convention that, until February 2013, he was unable to understand the charges and under Article 6 § 3 (c), that he was not adequately defended for some time.

THE LAW

A. Joinder of the applications

18. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background.

B. Complaints about lack of time to supply the reasons for the appeals on points of law

19. The applicants complained of lack of sufficient time available to the defence to prepare the reasons for their appeals on point of law. They calculated that, assuming an average reading time, per page, of two minutes, the reading of the minutes and the judgment of the Regional Court would have required 6.7 hours per day for six days per week (24 days), not leaving sufficient time for the actual preparation and drafting of the motivation for any appeal. Thus, in the applicants ’ view, it was impossible to produce an adequate appeal on points of law in the time-limit prescribed by German law. The applicants relied on Article 6 § 3 (b) of the Convention.

20. The Court reiterates that the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1. The Court will therefore examine the relevant complaints under both provisions taken together (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011 ) which, in so far as relevant, provide:

“ 1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... .

3. Everyone charged with a criminal has the following minimum rights: ...

(b) to have adequate time and facilities for the preparation of his defence”.

...

21. At the outset, the Court reiterates that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation. However, where such courts do exist, the guarantees of Article 6 must be complied with. This does not mean, however, that conditions of admissibility of an appeal are not permitted, since by its very nature the admissibility of an appeal calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. In this connection, the Court has recognised that the conditions of admissibility of an appeal on points of law may be stricter than for an ordinary appeal. These limitations must not, however, restrict or reduce a person ’ s access in such a way or to such an extent that the very essence of the right is impaired and such limitations will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved ( see Muscat v. Malta , no. 24197/10 , §§ 42, 44, 17 July 2012 , with further references) .

22. In that regard the Court reiterates that the rules governing the time ‑ limits to be complied with in lodging an appeal are aimed at ensuring a proper administration of justice and compliance, in particular, with the principle of legal certainty (see Miragall Escolano and Others v. Spain , nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, § 36, ECHR 2000 ‑ I) and that those concerned must expect those rules to be applied ( Mikulová v. Slovakia , no. 64001/00, § 52, 6 December 2005).

23. Under Article 6 § 3 (b) the accused must have the opportunity to organise his or her defence in an appropriate way and without restriction of the possibility to put all relevant defence arguments before the court and thus to influence the outcome of the proceedings. When assessing whether the accused had adequate time for the preparation of his defence, particular regard has to be had to the nature of the proceedings, the complexity of the case and the stage of the proceedings (see Gregačević v. Croatia, no. 58331/09, § 51, 10 July 2012).

24. In H.H. v. Austria (no. 5523/72, decision of 5 October 1974) the Commission considered “that the 14 ‑ day time ‑ limit [for the submission of the reasons under Austrian law] is rather short, particularly as it cannot be extended and no submissions are admissible after it has passed.” However, even though the case was complex, it noted that the lawyer, who was also the trial lawyer at first instance, had been able to produce “80 pages of well ‑ argued detailed material”, and declared the co mplaint manifestly ill ‑ founded.

25. The Court observes that it also held that even a one ‑ week time ‑ limit for lodging an appeal (without having to name the grounds at that stage) may be sufficient as long as there is the possibility to apply for a reinstatement of the proceedings. Such a reinstatement application provided the applicant with an additional opportunity to obtain a decision by the Court of Appeal, provided that he proved that he had been prevented from observing the time-limit through no fault of his own (see Homann v. Germany (dec.), no. 12788/04, 9 May 2007).

26. Turning to the instant case, the Court notes that the domestic courts have not commented on this complaint raised by the applicant before the Federal Court of Justice and the Federal Constitutional Court, as both federal courts chose not to give specific reasons. However, in its decision of 19 February 1998 the Federal Constitutional Court had held that, in general, the statutory one ‑ month time ‑ limit laid down in Article 345 § 1 CCP provided sufficient time to draw up the reasons for an appeal on points of law even in difficult cases (see paragraph 14 above).

27. The Court stresses, at the outset, that the one ‑ month time ‑ limit set out in Article 345 § 1 CCP applies to any party to the criminal proceedings, which means that not only the accused but also the prosecution and third parties have to observe this time ‑ limit when filing an appeal (see paragraph 12 above). Similarly, the one week time-limit pursuant to Article 347 § 1 CCP for a written response to the complainant ’ s appeal on points of law also applies equally to the accused and the prosecution (see paragraph 12 above). Therefore, the later date of the submission by the Federal Prosecutor General does not stem from differing time-limits for the prosecution and the accused, but is attributable to the fact that the submission constituted a response to the applicants ’ appeal and was part of a later stage in the proceedings. The Court also notes that the first applicant responded to the Federal Prosecutor General ’ s submission on 6 August 2014 and therefore nearly 6 months after the judgment of the Regional Court was served on the defence. In sum, the submission by the Federal Prosecutor General of 14 July 2014 does not raise an issue under the principle of equality of arms.

28. The Court further observes that counsel for the applicants, who had also defended the applicants during the preceding trial, submitted 411 pages explaining the reasons for the appeal on points of law, complaining of a total of 13 procedural errors and challenging the material correctness of the Regional Court ’ s judgment. Nothing in the applicants ’ submissions to the Court shows that the motivation provided within the time-limit provided by the CCP was incomplete or that it lacked quality, or explains what more could have been included in the motivation for the appeal if the defence had been provided with more time. The applicants have not indicated either whether they applied for a reinstatement of the proceedings ( Wiedereinsetzung in den vorherigen Stand ) in accordance with Article 44 CCP (see paragraph 12 above) or the outcome of any such application.

29. The Court reiterates that in cases arising from individual applications it is not its task to examine the domestic legislation in the abstract, but it must examine the manner in which that legislation was applied to the applicant in the particular circumstances (see Sommerfeld v. Germany [GC], no. 31871/96, § 86, ECHR 2003 ‑ VIII (extracts) , and, mutatis mutandis , Padovani v. Italy , 26 February 1993, § 24, Series A no. 257 ‑ B ).

30. The Court also reiterates that, as indicated previously (see the case-law cited at paragraph 22 above) the rules which govern the conditions for the admissibility of appeals before highest judicial authorities are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty (see Mikulová cited above, § 52) . Even if it cannot be excluded that a strict time-limit for appeals on points of law could, in exceptional circumstances, raise a problem under Article 6 § 3 (b), German law appears to provide a mechanism, in the form of an application for reinstatement of the proceedings, to attenuate its effects in certain circumstances.

31. The applicants have not shown that in their individual cases it had not been possible to supply the motivation for their appeal on points of law within the prescribed time ‑ limit. As regards the suffic iency of the time ‑ limit in the particular circumstances, it is noteworthy that counsel for the applicants had defend ed them during the trial and were therefore acquainted with the case, with the minutes and the relevant motions. Furthermore, on appeal, counsel cooperated in order to draw up a joint submission. While the case was clearly complex and the judgment of the Regional Court ran to 1,243 pages, over 1,000 of those pages related to the particulars of the victims of the fraud with that court ’ s reasoning of fact concentrated in just over 200 pages. Lastly, the Court notes that , even though the defence needed to substantiate alleged procedural errors, according to Article 344 § 2 CCP (see paragraph 12 above), alleging defects under other legal provisions does not require specification and legal arguments may also be presented at a later stage of the proceedings. A careful examination of the circumstances of the present case does not disclose any appearance of a violation of Article 6 §§ 1 and 3 (b) of the Convention.

32. It follows that this part of the application must therefore be declared inadmissible as manifestly ill ‑ founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

C. Complaints about the length of proceedings

33. The applicants complained that the criminal proceedings instituted against them were not concluded within a reasonable time, as required by Article 6 § 1 of the Convention. They claimed in particular that the trial before the Regional Court should have been speedier and could have been organised differently since on 75 hearing days the sessions lasted less than four hours. Furthermore, the second applicant complained that the many requests of the other accused were attributed to him and that he was thus penalised for something he had not done as the Regional Court declined to apply a reduction of the sentence due to overlong proceedings. The second applicant, in this context, also relied on Article 6 § 3 (c) in conjunction with Article 14 and Article 5 § 3, second sentence, of the Convention. The Court finds it appropriate to examine this complaint solely under Article 6 § 1 which, insofar as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time ...”

34. The Court observes, at the outset, that the applicants have not made use of the remedy under section 198 of the Court Organisation Act (see paragraph 13 above), which in general constitutes an effective remedy to obtain compensation for unreasonably long proceedings (see Garcia Cancio v. Germany (dec.), no. 19488/09, §§ 46 et seq., 29 May 2012) . However, according to section 199 § 3, second sentence, of that Act (see paragraph 13 above) the findings of the criminal (trial) court are binding on the remedy court. Since the Regional Court in the instant case had already decided that, in its view, there had been no unreasonable delay, making use of the new remedy may not have been effective in the present case. However, the Court considers that it is not necessary to decide this point in view of its findings below.

35. The Court reiterates that the reasonableness of the length of proceedings is to be assessed in the light of the circumstances of the case, regard being had to the criteria laid down in the Court ’ s case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities ( Zana v. Turkey , 25 November 1997, § 75, Reports of Judgments and Decisions 1997 ‑ VII; Merit v. Ukraine , no. 66561/01, § 72, 30 March 2004).

36. The Court acknowledges that it might have been in the applicant ’ s best interests to request evidence in order to take full advantage of the resources afforded by national law to ensure his best possible defence in the criminal proceedings (see Idalov v. Russia [GC], no. 5826/03 , § 189, 22 May 2012). Neither does Article 6 require an applicant actively to co ‑ operate with the judicial authorities nor can any reproach be levelled against him or her for having made full use of the remedies available under the domestic law. Nonetheless, an applicant ’ s conduct referred to above constitutes an objective fact, not capable of being attributed to the respondent State, which is to be taken into account when determining whether or not the proceedings lasted longer than the reasonable time referred to in Article 6 § 1 (see Eckle v. Germany , 15 July 1982, § 82 , Series A no. 51).

37. Having regard to these criteria, the Court takes note that the preliminary investigations were concluded and the indictment was preferred in August 2010, in other words four months after the applicant ’ s arrest on 13 April 2010 when the applicants were informed about the investigations for the first time.

38. The Court observes that the Regional Court held the trial from 4 October 2010 until 18 July 2013 on a total of 116 days. It heard numerous witnesses and experts and was confronted with a total of 368 requests by the three accused concerning the taking of evidence, of which the first applicant had filed 82 and the second applicant 24. The second instance before the Federal Court of Justice ended on 6 November 2014 and the third level of the proceedings at issue were concluded when, on 5 February 2015, the Federal Constitutional Court declined to consider the constitutional complaint. In sum the proceedings took 4 years and 9 months for three levels of jurisdiction.

39. In these circumstances the Court considers that there is no appearance of a delay in preparing the case for the trial.

40. As regards the trial itself, it was held within 2 years and 10 months. The subject matter of the trial and the number of victims indicate, amongst other factors, that the case was complex. The 368 requests to hear additional evidence lodged by the accused added to its complexity. The Regional Court had held in this regard that it was impossible to hold hearing days more frequently or to extend the length of the hearings as it was occupied with numerous requests filed by the accused. The applicants have not demonstrated that these requests were attributable to the Regional Court ’ s negligent or incorrect handling of the proceedings. For the purpose of this examination it is therefore irrelevant whether they were lodged by the applicants or by another accused. Considering the high number of procedural and other requests, there is no indication that the Regional Court could have held the hearing significantly more swiftly.

41. Lastly, the Court observes that the Federal Court of Justice decided on the applicant ’ s appeals on points of law within eight months and the decision of the Federal Constitutional Court was issued within less than three months. The Court can find no undue delay in these proceedings either.

42. In these circumstances, the Court considers that there is no appearance of a breach of Article 6 § 1. Consequently, this part of the application is likewise manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and must be rejected in accordance with Article 35 § 4.

D. The remainder of the first applicant ’ s complaints

43. The Court has examined the first applicant ’ s complaints raised under Article 6 § 3 (a) and (c) of the Convention (see paragraph 17). However, having regard to all materials in its possession, the Court finds nothing in the case file which might disclose any appearance of a violation of these provisions. It follows that this part of the application is manifestly ill ‑ founded and must be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 20 October 2016 .

Milan Blaško Ganna Yudkivska Deputy Registrar President