FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37972/05 by Jü rgen NIEDERMEIER against Germany

The European Court of Human Rights (Fifth Section), sitting on 3 February 2009 as a Chamber composed of:

Peer Lorenzen , President, Rait Maruste , Karel Jungwiert , Renate Jaeger , Mark Villiger , Isabelle Berro-Lefèvre , Zdravka Kalaydjieva , judges, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 17 October 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jürgen Niedermeier, is a German national who was born in 1953 and lives in Nu r em berg . He was represented before the Court by Mr P. Wollenschläger, a lawyer practising in Nurem berg .

A. The circumstances of the case

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

On 26 August 2002 the applicant was issued with a penal order ( Strafbefehl ) by the Nuremberg District Court on the ground that, in his capacity as managing director of a limited liability company, he had wilfully omitted to notify the company ’ s insolvency within the statutory time limit pursuant to sections 64(1) and 84(2) of the Code pertaining to companies with limited liability. He was sentenced to a fine of 75 euros per day for ninety days.

Upon the applicant ’ s objection lodged with the assistance of his lawyer at the time, main proceedings were instituted before the District Court. A hearing was first scheduled for 10 November 2003 and then postponed to 22 June 2004. Even though the applicant was present, the hearing was not opened but discussions only took place between the judge, public prosecutor and the applicant ’ s counsel at the time.

On 10 November 2004 the Nuremberg District Court provisionally stayed the proceedings on an application by the Public Prosecutor ’ s Office pursuant to Section 154(2) of the Code of Criminal Procedure with reference to separate preliminary proceedings instituted against the applicant on account of different criminal charges. The applicant ’ s objection against the decision to stay the proceedings was not accepted by the District Court.

On 21 December 2004 the Nuremberg-Fürth Regional Court rejected an appeal by the applicant as inadmissible on the ground that the applicant had not been adversely affected by the District Court ’ s decision. The Regional Court found that a decision to provisionally stay proceedings pursuant to Section 154(2) of the Code of Criminal Procedure would only be to the detriment of the accused in the event his innocence was clearly established and he therefore would have a right to be acquitted. It held that these criteria had not been met in the instant case.

On 7 April 2005 the Federal Constitutional Court (Az.: 2 BvR 301/05) declined to consider a consti tutional complaint lodged by the applicant on the ground that the decision of the District Court to provisionally stay the proceedings did not constitute a legal detriment for the applicant and that there was no indication that the decision had been arbitrary. It further held that the applicant still benefited from the presumption of innocence and that in general there was no right to demand continuance of criminal proceedings with a view to being acquitted. The decision was served on the applicant ’ s counsel on 18 April 2005.

Section 154(2) of the Code of Criminal Procedure provides for the provisional stay of criminal proceedings in the following terms:

“...

(2) Once proceedings have been instituted, the court may provisionally stay them at any stage at the request of the Public Prosecutor ’ s Office.

...

(4) If the proceedings were provisionally terminated on account of a penalty or measure of reform and prevention which is to be expected for another offence, the proceedings may be resumed, unless barred by limitation in the meantime, within three months after the judgment imposed for the other offence has entered into force.

(5) If the court has provisionally terminated the proceedings, a court order is required for their resumption.”

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention that his right to a fair trial had been violated on the ground that the decision of the Nuremberg District Court to provisionally stay the proceedings was rendered without a public hearing, the proceedings were not terminated by a publicly pronounced judgment and he could not have been acquitted.

2. The applicant further complained under Article 6 § 2 of the Convention that the decision of the Nuremberg District Court to provisionally stay the proceedings pursuant to Section 154(2) of the Code of Criminal Procedure violated the principle of presumption of innocence.

2. Relying on Article 6 § 3 of the Convention, he further submitted that during the proceedings before the District Court he had not been sufficiently informed about the nature of the criminal charges brought against him as well as the underlying facts and evidence and was therefore deprived of the right to defend himself.

3. He finally complained under Article 7 of the Convention that the provisional termination of the proceedings infringed his right to be acquitted for lack of sufficient evidence justifying the charges brought against him.

THE LAW

The applicant complained that the proceedings before the Nuremberg District Court and the decision to provisionally stay the proceedings infringed his right to a fair trial pursuant to Article 6 §§ 1, 2 and 3 of the Convention the relevant parts of which read as follows:

“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

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

(a) to be informed promptly ... of the nature and cause of the accusation against him;

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

(c) to defend himself in person or through legal assistance ...;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

Relying on Article 6 § 1 of the Convention the applicant submitted in particular that the decision of the Nuremberg District Court to provisionally stay the proceedings pursuant to Section 154(2) of the Code of Criminal Procedure infringed his right to be acquitted within a reasonable time. He further complained that the Nuremberg District Court had rendered its decision without a public hearing and that the proceedings had not been terminated by a definite publicly pronounced judgment.

The applicant further argued that the decision of the Nuremberg District Court to provisionally stay the proceedings prevented his definite acquittal and is therefore in breach of the principle of presumption of innocence pursuant to Article 6 § 2 of the Convention.

The applicant finally complained that in the course of the proceedings instituted against him, he was not clearly informed about the nature and cause of the charges brought against him as well as the underlying evidence and was therefore deprived of his right to defend himself in violation of Article 6 § 3 of the Convention.

The Court reiterates that paragraphs 2 and 3 of Article 6 of the Convention represent specific applications of the general principle stated in its paragraph 1. The presumption of innocence enshrined in paragraph 2 of Article 6 and the rights embodied in its paragraph 3 are constituent elements of the notion of a fair trial in criminal proceedings that is required by paragraph 1 ( Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, § 56 ). Consequently, the applicant ’ s complaints referring to the different paragraphs of Article 6 will be examined under these provisions taken together.

a) The complaints regarding the proceedings before the Nuremberg District Court

As regards the proceedings before the Nuremberg District Court, the Court notes that the penal order issued against the applicant at the outset specified the criminal charges brought against him and the grounds on which they were based. These charges constituted the basis for the subsequent main proceedings. The applicant was represented by counsel and had the right to defend himself at every stage of the proceedings until the District Court ’ s decision to stay them.

The Court reiterates in this context that there is no right under Article 6 of the Convention to a formal conviction or acquittal following the laying of criminal charges. The Court further reiterates that in the Deweer judgment it has recognised that proceedings could end through a unilateral decision taken in favour of the accused including when the prosecution formally decided not to prosecute and when the trial judge terminated the proceedings without a ruling (see Deweer, cited above, § 49, referring to the Commission ’ s report of 5 October 1978, Series B no. 33, § 58).

It follows that, in the absence of a right to a formal acquittal, the applicant does not have a right to an oral hearing and a publicly pronounced judgment in the event the domestic courts decide to stay the proceedings. The Court therefore concludes that in so far as the applicant submits that the proceedings before the District Court violated Article 6 §§ 1 and 3 of the Convention on the ground that he was not sufficiently informed about the charges brought against him, that the Court ’ s decision was taken without a public hearing, that he did not have a right to defend himself and that there was no formal verdict on his acquittal or conviction, his complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

b) The comp laint regarding the provisional discontinuance of the proceedings

The question remains, however, whether criminal proceedings that have been provisionally halted can be considered to be still pending against the applicant and, consequently, constitute a violation of the applicant ’ s right to a determination of criminal charges within a “reasonable time” pursuant to Article 6 § 1 of the Convention.

The Court reiterates that one of the purposes of the right to trial within a reasonable period of time is to protect individuals from “remaining too long in a state of uncertainty about their fate” (see Withey v. the United Kingdom (dec.), no. 59493/00, ECHR 2003 ‑ X , and Stögmüller v. Austria , judgment of 10 November 1969, Series A no. 9, § 5).

Accordingly, criminal proceedings are said to have begun with “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test of whether “the situation of the [suspect] has been substantially affected” (see Eckle v. Germany , judgment of 15 July 1982, Series A no. 51, § 73).

This implies that such proceedings would end with an official notification to the accused that he or she was no longer to be pursued on those charges such as would allow a conclusion that the situation of that person could no longer be considered to be substantially affected. This end is generally brought about by an acquittal or a conviction (see X v. the United Kingdom, no. 8233/78, Commission decision of 3 October 1979, §§ 64 and 65, unreported).

However, as already stated above, the Court also recognised that proceedings could end through a unilateral decision taken in favour of the accused including when the trial judge terminated the proceedings without a ruling. The Court has further found that criminal proceedings ended when the prosecution informed the accused that it had discontinued the proceedings against him (see Slezevicius v. Lithuania , no. 55479/00, § 27, 13 November 2001, unreported) and when a domestic court found that an accused was unfit to stand trial by reason of his psychiatric condition (see Antoine v. the United Kingdom , (dec.) no. 62960/00, ECHR 2003-...), even though in both cases there remained a theoretical possibility that the accused could one day be proceeded against on the relevant charges.

As to whether the proceedings in the instant case can be considered to have ended by the Nuremberg District Court ’ s decision to provisionally stay the proceedings with reference to separate preliminary proceedings instituted against the applicant on account of different criminal charges pursuant to section 154(2) of the Code of Criminal Procedure, the Court notes, on the one hand, that it remained possible for the court to resume proceedings against the applicant in the future. Pursuant to section 154(4) of the Code of Criminal Procedure, in the event proceedings were provisionally terminated on account of a penalty or measure of reform and prevention which was to be expected for another offence, the proceedings may be resumed, unless barred by limitation in the meantime, within three months after the judgment imposed for the other offence has entered into force. According to section 154(5) of the Code of Criminal Procedure, a court order is required for the resumption of the proceedings.

On the other hand, it has to be noted that as from the decision that criminal proceedings are to be stayed, the proceedings are no longer pending before the court, the allegation that an individual has committed a criminal offence is no longer maintained and the individual is thus no longer “charged with a criminal offence” within the meaning of Article 6. His rights and freedoms are not subject to any limitations on the account of the charges that were the subject of the stayed proceedings and the situation of the suspect is thus no longer substantially affected.

The Court further finds that the mere possibility of a resumption of proceedings does not justify a differentiation between a provisional or other discontinuation of proceedings in this respect. The prosecution of criminal charges brought against an individual may in general be instituted and halted by the authorities at any time during preliminary proceedings without the suspect having a right to challenge the decisions involved. The possibility of a resumption of proceedings is furthermore not limited to the provisional discontinuation of criminal proceedings pursuant to section 154(2) but is also an option in other cases of discontinuation which are not categorised as being provisional, such as under section 170(2) of the Code of Criminal Procedure, pursuant to which the public prosecution office shall stay the proceedings if the investigations do not offer sufficient reason for preferring public charges.

The Court furthermore observes that according to section 154 (4) and (5) of the Code of Criminal Procedure, a resumption of proceedings is accompanied by procedural safeguards. The resumption may only be effected by court order and only if a prosecution for the underlying offence has not meanwhile been time-barred, as where a case has been discontinued, the statutory time-limits begin to run again. In addition, a resumption of proceedings is also no longer possible in the event a three-month period has elapsed following entry into force of the judgment in the separate case, on the account of which the proceedings were stayed. In the event the prosecution for the underlying offence has been time-barred or the aforementioned three-month period has elapsed, the provisional stay of the proceedings becomes final.

The Court therefore considers that the Nuremberg District Court ’ s decision to provisionally stay the proceedings can be considered to have ended the criminal proceedings against the applicant for the purposes of Article 6, even if there remained a possibility that a court could resume them.

Accordingly, the Court finds that the provisional discontinuation of criminal proceedings as such does not constitute an infringement of the applicant ’ s right to a determination of criminal charges within a “reasonable time” pursuant to Article 6 § 1 of the Convention. The Court therefore holds that the complaint is manifestly ill-founded in this respect and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

c) The complaint regarding the violation of the principle of p resumption of innocence

As regards the applicant ’ s complaint that the principle of presumption of innocence as established under Article 6 § 2 of the Convention has been violated by the District Court ’ s decision to provisionally stay the proceedings, the Court reiterates in the first place that this principle is not undermined by the fact that the criminal proceedings against the applicant ended without formal acquittal ( see Withey v. the United Kingdom (dec.), no. 59493/00, ECHR 2003 ‑ X ) .

The Court further observes that under German law an individual benefits from the presumption of innocence until his or her conviction, irrespective of whether a proceeding was halted definitely or provisionally. In its decision of 7 April 2005 declining to consider the applicant ’ s constitutional complaint, the Federal Constitutional Court confirmed that the applicant was still benefiting from the presumption of innocence following the provisional stay of proceedings.

In the case at hand, there is nothing to establish that the decision to provisionally stay the proceedings itself contains any reasoning suggesting that the applicant was regarded as guilty.

It follows that the Nuremberg District Court ’ s decision to provisionally stay the proceedings pursuant to section 154(2) of the Code of Criminal Procedure does not violate the presumption of innocence established under Article 6 § 2 of the Convention. This part of the application is thus manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Relying on Article 7 of the Convention the applicant complained that the provisional termination of the proceedings infringed his right to be acquitted for lack of sufficient evidence justifying the charges brought against him. Article 7 provides, as relevant, that:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

...”

The Court, referring to its assessment above under 1., reiterates that there is no right under Article 6 of the Convention to a formal conviction or acquittal following the laying of criminal charges.

The Court further points out that the applicant has not been held guilty of any offence in the instant case but that the proceedings have been discontinued.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimo usly

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President