FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42541/02 by Jürgen SCHENK against Germany

The European Court of Human Rights ( Fifth Section), sitting on 9 May 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr K. Jungwiert , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. J aeger, Mr M. Villiger , judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant , Mr Jürgen Schenk, is a German national, who was born in 1954 and lives in Tübingen . The respondent Government are represented by Mrs A. Wittling -Vogel, Ministerialdirigentin , of the Federal Ministry of Justice.

1. First set of proceedings

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

The applicant was the chairman of several limited liability companies registered under German law. In November 1990 the Tübingen Public Prosecutor ’ s Office commenced, without the applicant ’ s knowledge at that time, a preliminary investigation against him on suspicion of fraud and breach of trust ( Untreue ) in connection with the establishment of a closed property fund ( geschlossener Im m obilienfonds ). On 14 May 1991 the Tübingen Public Prosecutor ’ s Office requested the Tübingen District Court to authorise the search of the companies ’ premises and the seizure of all relevant documents. On 22 May 1991 the court issued an according order.

On 10 June 1991 the police searched the premises of the above-mentioned companies and seized computers and numerous documents.

On 3 September, 3 December 1991 and 8 January 1992 the applicant ’ s defence counsel asked the Public Prosecutor ’ s Office for a progress report.

On 5 August 1991 the Reutlingen District Court also authorised the search of the local branch of a bank.

On 27 September 1991 the police department issued an intermediary report on the search of the branch of the bank and the questioning of numerous witnesses.

On 15 January 1992 the police rendered its final report on its investigation. Subsequently the investigating prosecutor changed.

On 20 January 1992 the applicant ’ s defence counsel consulted the Public Prosecutor ’ s Office ’ s file.

On 4 June 1992 the applicant ’ s defence counsel submitted his first observations. Until 30 November 1992 the representatives of several affected investors of the closed property fund consulted the Public Prosecutor ’ s file.

On 8 February 1993 the applicant ’ s defence counsel submitted his further observations.

On 13 April 1993 the defence counsel met with the investigating prosecutor and announced that he would submit further observations until 30 April 1993. Until 26 May 1993 representatives of further affected investors consulted the file.

On 17 August 1993 the applicant ’ s defence counsel asked for a progress report.

On 25 August 1993 a further charge was brought against the applicant.

On 13 September 1993 the defence counsel again asked for a progress report. The investigating prosecutor then changed. The new investigating prosecutor informed the applicant ’ s defence counsel that he would have to familiarise himself with the files first.

On 30 November 1993 further charges were brought against the applicant.

On 13 December 1993 the applicant inquired as to which information was needed by the Public Prosecutor ’ s Office.

On 7 January 1994 the Public Prosecutor ’ s Office requested information as to the flow of certain funds from another bank.

On 24 January 1994 the Public Prosecutor ’ s Office requested the police department to examine the information provided by the bank.

On 11 January 1994 the applicant ’ s defence counsel announced further observations, which were submitted on 3 February 1994.

On 2 February 1994 the applicant ’ s defence counsel asked for another progress report.

On 4 February 1994 the Public Prosecutor ’ s Office requested the police department to assess the applicant ’ s submissions.

On 10 May 1994 the police department issued its final report on its further investigation.

On 30 August 1994 the applicant ’ s defence counsel asked for a progress report.

On 13 September 1994 the applicant ’ s defence counsel s ubmitted further observations.

On 2 November 1994 the applicant ’ s defence counsel again asked for a progress report.

On 9 December 1994 the Public Prosecutor ’ s Office sent a request for mutual assistance ( Re chtshilfeersuchen ) to the Vaduz Regional Court in Liechtenstein asking for the questioning of an employee of a company that was suspected to be involved in the case. Subsequently the investigating prosecutor changed.

On 1 March 1995 the Government of Liechtenstein replied to the request stating that the afore-mentioned company had objected to the questioning. It invited the Tübingen Public Prosecutor ’ s Office to comment on this issue.

On 31 March 1995 the Public Prosecutor ’ s Office submitted its observations.

On 14 June 1995 the applicant ’ s legal counsel addressed letters to the Public Prosecutor ’ s Office asking for a progress report and requesting the discontinuation of the proceedings for lack of evidence.

On 3 July and 18 December 1995 the Government of Liechtenstein reminded the Vaduz Regional Court of the request of mutual assistance.

On 5 January 1996 the Government of Liechtenstein informed the Tübingen Public Prosecutor ’ s Office that the Vaduz Regional Court would now examine the request for mutual assistance, but that it was impossible to foresee when the proceedings would be terminated. Subsequently the investigating prosecutor changed.

On 14 May 1996 the Tübingen Public Prosecutor ’ s Office issued the bill of indictment. The applicant was accused of 43 counts of fraud, seven counts of fraudulent breach of trust and one count of incitement to fraudulent breach of trust. The applicant was suspected of having caused financial damage amounting to about 2.6 million Deutschmarks (DEM).

On 29 November 1996 the Reutlingen District Court convicted the applicant of nine counts of fraudulent breach of trust and sentenced him to eight months ’ imprisonment. In respect of the remaining charges the proceedings were discontinued, because the prosecution had become time-barred ( Verfolgungsverjährung ).

On 6 December 1996 the applicant appealed against that decision. He did not contest the length of proceedings in his appeal.

On 12 December 1996 the applicant ’ s defence counsel requested reinstatement of the proceedings insofar as he had failed to observe the time-limit for lodging the appeal.

On 22 January 1997 the Reutlingen District Court rejected the appeal as inadmissible.

On 27 January 1997 the defence counsel requested the Court of Appeal to render a decision on the applicant ’ s appeal and again requested reinstatement of the proceedings.

On 4 February 1997 the defence counsel lodged a complaint against the decision of the District Court of 22 January 1997.

On 28 February 1998 the Tübingen Regional Court quashed the decision of the Reutlingen District Court of 22 January 1998 and granted the applicant reinstatement of the proceedings.

On 24 April 1998 the Public Prosecutor ’ s Office inquired as to when the hearing would take place.

On 17 June 1998 the Reutlingen District Court convicted the applicant in a different set of proceedings (reference no. 12 Js 6696/95) of fraudulent preference of creditors ( Gläubigerbegünstigung ) and sentenced him to a prison sentence of five months.

On 27 August 1998 the Tübingen Regional Court scheduled the hearing for 22 and 23 October 1998.

On 22 October 1998 the applicant challenged the sitting judge for bias and the hearing was suspended.

On 18 December 1998 the Regional Court rejected the applicant ’ s motion for bias as ill-founded.

On 20 January 1999 the applicant ’ s defence counsel lodged a complaint against that decision.

On 28 January 1999 the Stuttgart Court of Appeal rejected the applicant ’ s complaint as inadmissible.

On 6 October 1999 the presiding judge at the Regional Court suggested vis-à-vis the Public Prosecutor ’ s Office examining whether the proceedings might be discontinued in accordance with sections 154 § 2 or 153 a § 2 of the Criminal Procedure Code.

On 27 October 1999 the Public Prosecutor ’ s Office refused to consent to the discontinuation in view of the sentence imposed by the court of first instance.

On 8 December 2000 the Public Prosecutor ’ s Office asked the Regional Court for a progress report.

On 13 December 2000 the applicant ’ s defence counsel submitted further observations to the Public Prosecutor ’ s Office concluding by suggesting that the proceedings should be discontinued in view of the length of proceedings.

On 14 February 2001 the Regional Court scheduled the next hearing for 5 April 2001. During the hearing on 5 April 2001 the Public Prosecutor ’ s Office announced that it would submit a new offer of proof ( Beweisantrag ). The hearing was then suspended.

On 6 April 2001 the Public Prosecutor ’ s Office requested an expert opinion on the question whether the applicant ’ s actions had actually caused any damage and furthermore requested the summons of the affected investors as witnesses.

On 22 May 2001 the applicant ’ s defence counsel announced that he would submit observations on the Public Prosecutor ’ s Office ’ s motions.

On 11 July 2001 the presiding judge inquired as to when the defence counsel would render his observations.

On 4 September 2001 he repeated his request.

On 21 September 2001 the Regional court received the observations.

On 30 April 2002 the presiding judge asked the Public Prosecutor ’ s Office again to consent to the discontinuation of the proceedings.

On 3 September 2002 the Public Prosecutor ’ s Office again refused to consent to it.

On 7 December 2002 the applicant lodged a hierarchical complaint ( Dienstaufsichtsbeschwerde ) with the Chief Public Prosecutor ( Genral - staatsanwalt ) complaining inter alia about the length of the preliminary investigations.

On 30 December 2002 the sitting judge in the parallel proceedings (reference no. 4 DsF 19 Js 18822/96 see below under 2) proposed a deal with the view of terminating all pending proceedings, but the negotiations broke down.

On 1 April 2003 the Chief Public Prosecutor rejected the applicant ’ s complaint stating that the preliminary investigations had already been terminated on 14 May 1996 with issuing the bill of indictment. The Chief Public Prosecutor found that in any event there was no indication that the preliminary investigations had been avoidably delayed.

On 12 December 2003 the Regional Court scheduled the next hearing for 15 January 2004.

On 8 January 2004 the applicant ’ s defence counsel informed the court that the applicant had had a heart attack. He suggested that the proceedings be discontinued according to section 154 of the Criminal Procedure Code and requested the cancellation of the hearing.

On 12 January 2004 the Regional Court cancelled the hearing.

On 13 February 2004 the Public Prosecutor ’ s Office again refused to consent to the discontinuation of the proceedings.

On 8 October 2004 the Public Prosecutor ’ s Office telephoned the presiding judge and announced that the Public Prosecutor ’ s Office would file a motion for discontinuation of the proceedings according to section 154 § 2 of the Criminal Procedure Code in view of the length of the proceedings.

On 11 October 2004 the Public Prosecutor ’ s Office filed a motion for the discontinuation of the proceedings in view of the applicant ’ s conviction of 17 June 1998 in the para llel set of proceedings.

Following the applicant ’ s consent the Tübingen Regional Court closed the proceedings preliminarily according to section 154 § 2 of the Criminal Procedure Code on 18 October 2004. The court held that the expected possible sentence would not carry weight compared to the applicant ’ s afore-mentioned conviction of 17 June 1998 in a parallel set of proceedings.

2. Second set of proceedings

On 16 August 1995 the Tübingen Public Prosecutor ’ s Office opened a preliminary investigation against the applicant on suspicion of inter alia tax evasion in respect of a tax amount of more than 1 million DEM.

On 27 September 1995 the applicant ’ s home was searched by agents of the Reutlingen Tax Office and documents were seized.

On 27 October 1995 the Tübingen District Court confirmed the legality of the seizure.

Upon the applicant ’ s complaint the Tübingen Regional Court ordered that two of the seized items had to be returned to the applicant.

Between 11 December 1995 and 9 September 1996 the tax fraud office ( Steuerfahndung ) heard numerous witnesses.

On 12 December 1995 the applicant ’ s defence counsel filed a remonstrance ( Gegenvorstellung ) with the Regional Court .

Between 9 February 1996 and 17 June 1996 the applicant and the tax fraud office were involved in a dispute as to whether certain seized items had already been returned to him.

On 19 August 1998 the tax fraud office addressed a request for mutual assistance to the Innsbruck Finance Office.

On 23 September 1996 the preliminary investigation was extended to several other tax offences.

On 30 September the tax fraud office submitted its files to the Public Prosecutor ’ s Office.

On 11 August 1997 the Public Prosecutor ’ s Office addressed a request for mutual assistance to the Austrian authorities requesting the search of a branch of a bank.

Between 26 June 1998 and 4 February 1999 several witness were questioned by the Public Prosecutor ’ s Office.

On 3 September 1998 several banks were asked to provide information as to the flow of certain funds.

On 26 October 1998 the Austrian authorities suppli ed the requested information.

On 3 November 1999 the files were submitted to the Public Prosecutor ’ s Office.

On 9 November 1999 the applicant ’ s defence counsel consulted the Publ ic Prosecutor ’ s Office ’ s file.

On 14 June 2000 the Tübingen Public Prosecutor ’ s Office issued the bill of indictment accusing the applicant of tax evasion.

On 5 July 2000 the applicant ’ s defence counsel withdrew from the case.

On 3 August 2000 the applicant himself announced that he would name additional witnesses and would submit further offers of proof.

On 8 August 2000 the Tübingen District Court set a time-limit for the applicant ’ s submissions until 10 September 2000. On the same day the applicant ’ s new defence counsel informed the District Court that he would represent the applicant and requested an extension of the time-limit to 31 October 2000.

On 11 December 2000 the District Court scheduled a hearing for 23 January 2001.

On 23 January 2001 the court scheduled the next hearings for 1 and 8 February 2001.

On 8 February 2001 the Public Prosecutor ’ s Office requested to postpone the hearing.

On 27 August 2001 and 23 January 2002 the Public Prosecutor ’ s Office asked the court for a progress report.

On 30 December 2002 the sitting judge proposed a deal to the Public Prosecutor ’ s Office with the view of terminating all pending proceedings, but the negotiations broke down (see above).

On 26 March 2004 the next hearing was scheduled for 20 April 2004.

On 15 April 2004 the applicant ’ s defence counsel informed the court that the applicant had had a heart attack and requested to cancel the hearing.

Upon the suggestion by the District Court the Public Prosecutor ’ s Office consented to the discontinuation of the proceedings. Following the applicant ’ s consent the District Court then closed the proceedings preliminarily according to section 154 § 2 of the German Criminal Procedure Code (see “Relevant domestic law” below) on 7 May 2004. It referred to the aforementioned previous conviction by the Reutlingen District Court of 17 June 1998.

B. Relevant domestic law

1. The right to expeditious proceedings

Article 2 § 1 of the German Basic Law ( Grundgesetz ) in conjunction with the principle of the rule of law ( Rechtsstaatsprinzip ) guarantees the right to expeditious proceedings. According to the settled case-law of the Federal Constitutional Court the courts and the prosecuting authorities ( Anklagebehörden ) are called upon to draw the consequences of the length of proceedings at any stage of the proceedings. Their possibilities include inter alia the discontinuation of the proceedings pursuant to sections 153 and 153a of the Criminal Procedure Code, the limitation of the proceedings according to sections 154 and 154a of the Criminal Procedure Code or a reduction of the sentence (see, among othe rs, the decision of 24 December 1983 (no. 2 BvR 121/83); the decision of 19 April 1993 (no. 2 BvR 1487/90); the decision of 21 January 2004, no. 2 BvR 1471/03, Reports of Chamber Decisions ( BVerfGK ) no. 2, pp. 239 et seq.; the decision of 21 June 2006, nos. 2 BvR 750/06, 752/06 and 761/06). In cases of an exceptional length of proceedings creating particular hardship in respect of which the possibilities under the German Criminal Procedure Code do not suffice, the courts may discontinue the proceedings on account of a procedural bar to the proceedings ( Verfahrenshindernis ) derived from the German Basic Law (see the decision of 25 July 2003, no. 2 BvR 153/03, Reports of Chamber D ecisions ( BVerfGK ) no. 1, pp. 269 et seq.

2. The relevant provisions of the Criminal Procedure Code

(a) Section 153

“(1) If a misdemeanour ( Vergehen ) is the subject of the proceedings, the Public Prosecutor ’ s Office may dispense with the prosecution upon the consent by the criminal court competent for the opening of the main proceedings, if the perpetrator ’ s guilt is considered to be minor and if there is no public interest in the prosecution. ...

(2) Has the bill of indictment already been issued, the court may discontinue the proceedings at any stage upon the consent of the Public Prosecutor ’ s Office and the accused. ...”

(b) Section 153 a

“Upon the consent by the criminal court competent for the opening of the main proceedings and the accused, the Public Prosecutor may dispense with issuing a bill of indictment and impose conditions and instructions upon the accused, if those are adequate for resolving the public interest of prosecution and are not in conflict with the severity of the guilt. ...”

(c) Section 154

“(1) The Public Prosecutor ’ s Office may dispense with the prosecution,

1. if the sentence or the measure of reform and prevention ( Maβregel der Sicherung und Besserung ) to which the prosecution might lead would not carry weight compared to another sentence or measure of reform and prevention already imposed or expected to be imposed,

2. if a judgment cannot be expected in reasonable time and if another sentence or the measure of reform and prevention already imposed or expected seems sufficient to impress the accused and protect the legal order.

(2) Has the bill of indictment already been issued , the court may discontinue the proceedings preliminarily at any stage upon a motion by the Public Prosecutor ’ s Office. ...”

(d) Section 154 a

“(1) If certain parts of one act ( Tat ) or several of multiple infractions committed though the same act, do not carry weight

1. compared to the expected sentence or measure of reform and prevention , or

2. next to a sentence or measure of reform and prevention already imposed upon the accused or to be expected for another act,

The prosecution may be limited to the remaining parts of the act or infractions. Section 154 § 1 no. 2 applies accordingly. ...

(2) Has the bill of indictment already been issued, the court may at any stage and upon the consent by the Public Prosecutor ’ s Office undertake the limitation. ...”

COMPLAINT

The applicant complained under Article 6 of the Convention about the length of both the preliminary investigation and the criminal proceedings.

THE LAW

The applicant submitted that the length of the preliminary investigation and the criminal proceedings had been excessive and therefore in violation of the “reasonable time” requirement of Article 6 § 1, which, as far as relevant, reads as follows:

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

The Court recalls that the period to be taken into consideration under Article 6 § 1 begins at the time when formal charges are brought against a person or when that person has otherwise been substantially affected by actions taken by the prosecuting authorities as a result of suspicion against him (see, among others, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 44, ECHR 2004-XI). An applicant can be said to be “substantially affected” at the moment when his premises are searched (see Strategies et Communications et Demoulin c. Belgique no. 37370/97, § 42, 15 July 2002; Barry v. Ireland no. 18273/04, § 35, 15 December 2005).

The Court therefore considers that in respect of the first set of proceedings the time to be taken into consideration began with the search of the applicant ’ s premises on 10 June 1991 and ended with the decision of the Tübingen Regional Court of 14 October 2004 to discontinue the proceedings. They therefore lasted thirteen years, six months and four days for the preliminary investigation and two levels of jurisdiction.

In respect of the second set of proceedings the period to be taken into consideration began on 27 September 1995 with the search of the applicant ’ s premises and ended with the decision of the Tübingen District Court of 7 May 2004 to discontinue the proceedings. They therefore lasted eight years, seven months and ten days for the preliminary investigation and one level of jurisdiction.

A. The parties ’ submissions

1. The Government

From the Government ’ s point of view the applicant had failed to avail himself of a number of domestic remedies, namely a complaint against the suspension of the hearing, a complaint against the court ’ s inactivity, a hierarchical complaint or a constitutional complaint. Furthermore, the Government pointed out that the applicant had not invoked the length of the proceedings in his appeal in the first set of proceedings.

2. The applicant

The applicant, however, contested the effectiveness of those remedies and held the opinion that he had done everything he could to expedite the proceedings. The applicant in particular considered that a constitutional complaint would have been futile in his case, since there had been no supporting case-law of the Federal Constitutional Court at the time when his proceedings were pending.

B. The Court ’ s assessment

1. General considerations

At the outset the Court recalls that that the purpose of the requirement of exhaustion of domestic remedies is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus, the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 199-V).

As regards the effectiveness of a complaint for contesting the length of proceedings, the Court recalls that such a remedy should either be capable of expediting pending proceedings or to award redress for delays already occurred (see Sürmeli v. Germany [GC], no. 75529/01, §§ 99-100, ECHR 2006-...).

In respect of criminal proceedings one possible means of providing redress may be the discontinuation of the proceedings on account of their length (see Sprotte v. Germany ( dec .), no. 72438/01, 17 November 2005; Conrad v. Germany , no. 13020/87, Commission decision of 13 April 1988, unreported).

According to sections 153, 153a, 154 and 154a of the German Criminal Procedure Code, in conjunction with the well-established case-law of the Federal Constitutional Court , the Public Prosecutor ’ s Office may discontinue the proceedings out of its own motion during the course of the preliminary investigation. Once the bill of indictment has been issued, the criminal court may discontinue the proceedings if the Public Prosecutor ’ s Office consents to it. Although both the Public Prosecutor ’ s Office and the criminal courts might undertake those steps out of their own motion, they do not do so ex officio . It follows that it is first of all for the accused or the defendant to contest the length of proceedings vis-à-vis the Public Prosecutor ’ s Office and the criminal court and to pursue the discontinuation of the proceedings.

The Court therefore has to examine whether the applicant undertook effective steps towards the discontinuation of the proceedings either during the preliminary investigation or the subsequent criminal proceedings.

2. First set of proceedings

The court notes that the applicant did not contest the length of proceedings in his appeal of 6 December 1996 to the Regional Court . He only requested once that the proceedings be discontinued in view of their length, namely in his letter to the Tübingen Public Prosecutor ’ s Office of 13 December 2000. However, following that letter the applicant did not undertake any further steps in that direction. In particular, he failed to file a motion for discontinuation of the proceedings during the hearing before the Tübingen Regional Court on 5 April 2001. The applicant therefore missed an important opportunity to discuss the length of the proceedings with the sitting judges and the Prosecutor, whose consent would have been necessary for the discontinuation of the proceedings. In addition, the applicant failed to challenge the court ’ s decision to suspend the hearing.

Hence the applicant ’ s behaviour shows that as of April 2001 he no longer pursued the discontinuation of the proceedings, but wished their continuation. It is true that the applicant complained to the Chief Public Prosecutor on 7 December 2002 about the length of the preliminary investigation in a hierarchical complaint. However, this cannot be considered an effective measure towards the discontinuation of the criminal proceedings pending at that time, since the preliminary investigation conducted by the Public Prosecutor ’ s Office had already been terminated for more than six years.

The applicant therefore did not make use of the opportunities offered by the domestic criminal procedure law in conjunction with the well-established case-law of the Federal Constitutional Court as outlined above.

Having regard to the applicant ’ s behaviour during the course of the proceedings, the Court concludes that the applicant did not pursue the discontinuation of the proceedings. He thus did not avail himself of an effective remedy and therefore did not exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.

This part of the application must hence be declared inadmissible in accordance with Article 35 § 4 of the Convention.

3 . The second set of proceedings

Throughout the second set of proceedings the applicant neither contested the length of the proceedings nor did he request the discontinuation of the proceedings according to sections 153, 153a, 154 and 154a of the Criminal Procedure Code.

He therefore did not avail himself of an available effective remedy for obtaining redress for the length of proceedings and therefore did not exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.

Therefore this part of the application must likewise be declared inadmissible in accordance with Artic le 35 § 4 of the Convention.

For these reasons, the Cou rt unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention and

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President