FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45198/04 by Karl-Heinz GRUBER against Germany

The European Court of Human Rights (Fifth Section), sitting on 20 November 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr J. Borrego Borrego , Mrs R. Jaeger , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 13 December 2004,

Having deliberated, decides as follows:

THE FACTS

The applican t, Mr Karl-Heinz Gruber, is a German national who was born in 1942 and lives in Berlin . He was rep resented before the Court by Mr C. Lenz, a lawyer practising in Stuttgart .

A. The circumstances of the case

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

1. Background to the case

On 6 March 2000 the Berlin Regional Court convicted the applicant of seventy-one counts of fraudulent breach of trust ( Untreue ) and sentenced him to a cumulative sentence of two years ’ imprisonment suspended on probation and a fine of 3,600 Deutschmarks (DEM). It found that the applicant, as a liquidator employed by the Treuhand agency ( Treuhandanstalt ), had embezzled a total of more than eleven million Deutschmarks belonging to the various firms he had liquidated or to the Treuhand agency itself. In particular, he had received money for a stock corporation he was liquidating and, contrary to a decision made by its shareholders to pay part of the sum to the Jewish Claims Conference, had transferred some 1,93 million Deutschmarks to another company to conceal damage he had previously caused. The applicant had decided to embezzle money as the Treuhand agency had failed to pay him the supplementary commissions he had claimed under his contracts with it. In fixing the sentence of one year ’ s imprisonment for the most serious count of fraudulent breach of trust (compare ‘ Relevant domestic law ’ below), the court considered as an aggravating factor the extraordinarily high amount of damage caused, amounting to almost two million Deutschmarks.

On 19 December 2000 the Federal Court of Justice, allowing the appeal on points of law lodged by the Public Prosecutor ’ s Office solely against the fixing of the sentence, quashed the Regional Court ’ s judgment in this respect and remitted the case to a different chamber of the Regional Court . It left open whether, having regard to the amount of damage caused, the very mild sentence imposed could still be considered as an appropriate sanction. In any event, the Regional Court had, inter alia , unlawfully taken into consideration grounds for granting probation when fixing the sentence itself.

2. The proceedings at issue

a. The proceedings before the Regional Court

On 16 July 2001 the Berlin Regional Court sentenced the applicant to a cumulative sentence of two years and six months ’ imprisonment – a sentence which could not be suspended on probation (see ‘ Relevant domestic law ’ below) – for forty-five counts of fraudulent breach of trust. It had previously discontinued the proceedings in respect of twenty-six counts of fraudulent breach of trust in view of the sentence the applicant had to expect for the remaining counts he had been found guilty of.

In fixing the sentence of one year and six months ’ imprisonment for the most serious count of fraudulent breach of trust (compare ‘ Relevant domestic law ’ below), the Regional Court considered in mitigation that the applicant had confessed to the offences and regretted them, that he had no previous convictions and that he made serious efforts to redress the damage caused. Moreover, the proceedings had been lengthy and he might be prohibited from further exercising his profession as a tax consultant. Furthermore, following recent developments in the case-law, the applicant might be able to enforce the payment of supplementary commissions he had claimed from his former employer.

As aggravating circumstances the Regional Court took into consideration that the applicant had caused very serious damage amounting to 1,93 million Deutschmarks and that he had flagrantly breached his duty as a tax consultant to keep accounts for assets not belonging to him separated from his own accounts. By withdrawing and transferring money on his own motion to settle his claims against his employer at that time instead of enforcing them in court, the applicant had negligently handled the assets of others in breach of his duties and had recklessly pursued his own profit. Moreover, the court considered as an aggravating factor that the applicant had embezzled money which belonged to, inter alia , the Jewish Claims Conference, whereby, against the background of German history, he had touched upon a very sensitive issue.

The Regional Court noted that, compared to other cases in which a similarly grave damage had been caused, the cumulative sentence imposed was comparatively low, which was mainly owing to the fact that the applicant could now most probably enforce his claim for supplementary commissions before the civil courts.

b. The proceedings before the Federal Court of Justice

On 28 September 2001 the applicant lodged an appeal on points of law. He complained that the Regional Court had considered as an aggravating factor that his offence had affected assets belonging to the Jewish Claims Conference. This was not an element which could lawfully be taken into account in determining his penalty.

In his submissions dated 5 February 2002, the Federal Public Prosecutor General argued that the Regional Court, in referring to the fact that the applicant had embezzled money which should have been transferred to the Jewish Claims Conference, took account of the way in which the applicant had committed his offence and its background, which were permissible criteria for fixing a sentence under section 46 § 2 of the Criminal Code (see ‘ Relevant domestic law ’ below).

On 5 March 2002 the Federal Court of Justice, without giving reasons, dismissed the applicant ’ s appeal on points of law as ill-founded.

c. The proceedings before the Federal Constitutional Court

On 12 April 2002 the applicant lodged a constitutional complaint with the Federal Constitutional Court . Setting out the course of the proceedings before the criminal courts and the reasons given for their decisions, he complained that his sentence had been fixed at two years and six months ’ imprisonment by reference to the fact that he had embezzled assets belonging to the Jewish Claims Conference. He had to serve this sentence as, contrary to his initial sentence, it exceeded two years and could therefore no longer be suspended on probation. He had been imposed an executable prison sentence contrary to the rule of law and arbitrarily. In particular, the courts had failed to verify whether he had known at the time of the offence in August 1998 that the Jewish Claims Conference was affected by his acts. Its involvement had in fact become apparent only in November 1998 when the decision on the distribution of the assets belonging to the company in liquidation had been taken. In any event, it had been a share of less than ten per cent of the amount of money in liquidation which had been claimed by the heirs of former associates of the company in liquidation who were represented by the Jewish Claims Conference. Moreover, by taking this criterion into account the courts had treated proprietors differently on grounds of their race or religion contrary to the right to equal treatment.

On 2 October 2002 the Federal Constitutional Court communicated the complaint to the Government of the Land Berlin and the Federal Court of Justice for observations. T he Berlin Ministry of Justice ( Senatsverwaltung ) arranged for the e xecution of the applicant ’ s prison sentence to be suspended while the proceedings were pending before the Federal Constitutional Court following that court ’ s informal request to do so.

In its observations of 3 December 2002 the Federal Court of Justice recalled that according to its case-law, only foreseen or foreseeable consequences of an offence could be considered as aggravating circumstances.

On 3 September 2004 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint and declared that the motion for an injunction was therefore disposed of (file no. 2 BvR 587/02).

The Federal Constitutional Court found that it was not necessary to consider the applicant ’ s complaint in order to enforce his rights as the violation he alleged was neither severe nor did he suffer a particularly grave disadvantage by not obtaining a decision on the merits.

The court noted that the applicant complained only that the Regional Court , in fixing his sentence, had wrongfully considered as an aggravating factor that he had embezzled assets belonging to the Jewish Claims Conference. However, even assuming that the impugned criterion had not been taken into consideration in determining his punishment, the Regional Court would not have imposed a different sentence. The Regional Court , in fixing the sentence for the most severe count of fraudulent breach of trust, had not attached decisive importance to the fact that the applicant had embezzled assets belonging to the Jewish Claims Conference. It had mainly taken into account the amount of damage the applicant had caused (DEM 1,930,000), the disrespect of his professional duties as a tax consultant and his reprehensible pursuit of personal profit. Having regard to the enormous damage caused by the most severe count of fraudulent breach of trust alone, the impugned criterion could not have had a decisive influence on the sentence fixed. In these circumstances, the applicant did not suffer a particularly grave disadvantage by not obtaining a decision of the Federal Constitutional Court .

B. Rele vant domestic law

Section 46 of the Criminal Code lays down the principles to be observed in determining a perpetrator ’ s punishment. The guilt of the perpetrator is the basis for fixing the punishment (section 46 § 1). In fixing the penalty, the court shall counterbalance the circumstances being in the perpetrator ’ s favour and against him, in particular his motives and aims, the extent of the breach of his duties, the manner in which the offence was executed and its consequences caused by fault of the perpetrator, his past life, personal and financial circumstances and his conduct after the offence (section 46 § 2).

If a perpetrator committed more than one offence and thus incurred more than one term of imprisonment or more than one fine, the court, when giving its judgment on these offences at the same time, shall fix a cumulative sentence (section 53 § 1 of the Criminal Code). The cumulative sentence shall be fixed by increasing the severest sentence or fine incurred (section 54 § 1 of the Criminal Code).

Pursuant to section 56 of the Criminal Code, the court may, under certain circumstances, suspend on probation the execution of a prison term which does not exceed two years. The court may grant probation if it can be expected that the conviction as such will already serve the convicted person as a warning and that he will not commit any further offences in the future even without the influence exerted by the execution of the sentence. Moreover, a comprehensive evaluation of the act and personality of the convicted person must reveal the presence of special circumstances.

PROCEDURE BEFORE THE COURT

On 25 January 2005 the President of the Chamber to which the case had initially been allocated decided not to propose to the German Government to postpone the execution of the applicant ’ s prison sentence, scheduled to start on 3 February 2005, under Rule 39 of the Rules of Court.

COMPLAINTS

1. The applicant complained under Article 5 § 1 (a) of the Convention that his detention was neither lawful nor in accordance with a procedure prescribed by law. In fixing his sentence, the domestic courts had applied the relevant provisions of the Criminal Code in an arbitrary manner. They had fixed a higher sentence due to the fact that the money he had embezzled had partly been related to the Jewish Claims Conference. This had not been an admissible criterion in fixing a prison sentence, in particular as he had not known this at the time he had committed the offence. As was proved by comparing the initial and the new judgment of the Regional Court , the unlawful fixing of his sentence had caused the deprivation of his liberty because it had led to a cumulative sentence of more than two years which could no longer be suspended on probation. All other factors, in particular the amount of damage he had been found to have caused, had remained unchanged.

2. The applicant further claimed that his right to equal treatment in respect of deprivations of liberty under Article 5 ta ken in conjunction with Article 14 of the Convention had been violated. The domestic courts had made a difference in treatment on grounds of race or religion between the assets of Jewish and non-Jewish victims. Moreover, a liquidator accused of fraudulent breach of trust in a comparable case had received a sentence suspended on probation even though he had caused a higher amount of damage.

3. He further complained under Article 6 § 1 of the Convention that he had not had a fair trial in that the Federal Constitutional Court had refused to admit his complaint with an unforeseeable argument – the amount of damage caused – without giving him an opportunity to comment on this issue. If heard, he would have set out that the amount of damage caused had already been taken into consideration by the Regional Court in its initial judgment and that he in fact had considerable claims for payment of supplementary commissions against his former employer, which reduced the actual damage incurred by the latter.

THE LAW

A. Complaint under Article 5 § 1 (a) of the Convention

The applicant argued that his detention had been unlawful and contrary to a procedure prescribed by law as his prison sentence had only been fixed at more than two years and could therefore not be suspended on probation because the Regional Court , when determining his sentence, had considered an unlawful criterion as an aggravating factor. He relied on Article 5 § 1 (a) of the Convention, which reads:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;”

O n the question whether a detention – as opposed to a conviction – is “lawful”, including whether it complies with “a procedure prescribed by law”, the Convention refers back essentially to national law and states the obligation to conform to the substanti ve and procedural rules thereof (see, inter alia , Bouamar v. Belgium , judgment of 29 February 1988, Series A no. 129, p. 20, § 47; Erkalo v. the Netherlands , judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2477, § 52; Steel and Others v. the United Kingdom , judgment of 23 September 1998, Reports 1998-VII, p. 2735, § 54). However, the requirement of lawfulness laid down by Article 5 § 1 (a) (“lawful detention” ordered “in accordance with a procedure prescribed by law”) is not satisfied merely by compliance with the relevant domestic law. T he purpose of Article 5 is to protect the individual from arbitrariness (see, among other authorities, Stafford v. the United Kingdom [GC], no. 46295/99, § 63, ECHR 2002-IV ).

It follows from the foregoing considerations that the requirement of Article 5 § 1 (a) that a person be lawfully detained after conviction by a competent court does not imply that the Court has to subject the proceedings leading to that conviction to a comprehensive scrutiny and verify whether they have fully complied with all the requirements of Article 6 of the Convention ( Stoichkov v. Bulgaria , no. 9808/02, § 51, 24 March 2005). However, the detention of a person after a conviction which was itself the result of a flagrant denial of justice, that is, which was imposed in proceedings conducted manifestly contrary to the provisions of Article 6, cannot be considered as lawful within the meaning of Article 5 § 1 (see, mutatis mutandis , Drozd and Janousek v. France and Spain , judgment of 26 June 1992, Series A no. 240, pp. 34-35 , § 110 ; and Ilaşcu and Others v. Moldova and Others [GC], no. 48787/99, § 461, ECHR 2004-VII; Stoichkov , cited above, § 51).

In the present case, the Court notes that the applicant was detained as of 3 February 2005 because the competent German courts had convicted him of fraudulent breach of trust and sentenced him to two years and six months ’ imprisonment. His detention therefore falls within the ambit of Article 5 § 1 (a) of the Convention.

As to the lawfulness of the applicant ’ s detention, including whether it complie d with “a procedure prescribed by law” , the Court observes that there is nothing to indicate – and the applicant has not made any submissions to that effect – that the enforcement as such of the final judgment of the national courts imposing a sentence of imprisonment was not lawful under domestic law. Likewise, the authorities dealing with the execution of sentences complied with the procedural rules of domestic law when executing that judgment by depriving the applicant of his liberty.

By alleging that the fixing of his (executable) prison sentence had been in breach of German criminal law, the applicant in fact contested the lawfulness not of his detention, but of his conviction, which includes both the finding of guilt and the fixing of the sentence.

As shown above, a conviction which has been imposed by judgment following a breach of substantive provisions of domestic law in the criminal proceedings does not, however, render the detention by virtue of that judgment unlawful unless the conviction was imposed in proceedings conducted manifestly contrary to the provisions of Article 6 and thus amounted to a flagrant denial of justice. In the applicant ’ s submission, the domestic courts had considered an unlawful criterion as an aggravating factor in fixing his sentence, which had resulted in a longer (and therefore executable) term of imprisonment. Even assuming that the impugned criterion had been taken into consideration contrary to the provisions of the Criminal Code, this error of law made by the domestic courts concerned only one of numerous aspects relevant in fixing the applicant ’ s sentence and cannot be considered as having infringed one of the basic requirements of Article 6 so as to entail a flagrant breach of the rights protected by that article.

In these circumstances, the applicant ’ s conviction and sentence cannot be considered as being the result of proceedings conducted manifestly contrary to the guarantees laid down in Article 6. The applicant ’ s detention has not therefore been unlawful for the purposes of Article 5 § 1.

It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Complaint under Article 5 § 1 (a) of the Convention, read in conjunction with Article 14 of the Convention

The applicant further complained that the domestic courts had based their decision fixing his sentence on an unjustified difference in treatment on grounds of race or religion between the assets of Jewish and non-Jewish victims. Moreover, he had been discriminated in that a liquidator accused of fraudulent breach of trust in a comparable case had been imposed a lower sentence which, other than his sentence, could be suspended on probation.

He claimed that the national courts had thereby violated his right to equal treatment in respect of deprivations of liberty under Article 5 ta ken in conjunction with Article 14 of the Convention, which, in so far as relevant, provide:

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court; ...”

Article 14

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court reiterates that Article 14 affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention (see Van der Mussele v. Belgium , judgment of 23 November 1983, Series A no. 70, p. 22, § 43). For a difference in treatment to amount to a violation of this Article, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that there is no objective and reasonable justification for this distinction (see Fredin v. Sweden , judgment of 18 February 1991, Series A no. 192, p. 19, § 60; Stubbings and Others v. the United Kingdom , judgment of 22 October 1996, Reports 1996-IV, p. 1507, § 72).

The Court, having regard to its conclusions above, finds that the facts of the instant case fall within the ambit of Article 5 of the Convention and that, accordingly, Article 14 is applicable.

As to the applicant ’ s complaint that the domestic courts fixed his sentence by reference to the fact that he had embezzled assets of Jewish victims, the Court notes, however, that the applicant did not claim to have been deprived of his liberty because of a distinction covered by Article 14, such as his own race or religion. The applicant further argued that another liquidator accused of fraudulent breach of trust in a comparable case had been imposed a less severe sentence which, other than his sentence, could be suspended on probation. The Court observes in this respect that pursuant to section 46 of the Criminal Code (see ‘ Relevant domestic law ’ above), the fixing of a sentence depends on many factors relating to the person of the perpetrator and the circumstances of his offence. In view of this, the applicant failed to demonstrate that he found himself in a relevantly similar situation as one further liquidator who had received a shorter prison sentence for his offence.

Accordingly, this part of the application must likewise be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

C. Complaint under Article 6 § 1 of the Convention

The applicant claimed, lastly, that the Federal Constitutional Court refused to admit his complaint with an unforeseeable argument without giving him an opportunity to comment on this issue. This had violated his right to a fair trial as guaranteed by Article 6 § 1 of the Convention.

The Court has examined the applicant ’ s complaint as submitted by him . However, having regard to all material in its possession, the Court finds that th is complaint do es not disclose any appearance of a violation of the rights and freedoms set out in t he Convention or its Protocols.

Therefore, also this part of the application must be dismissed as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President