FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29453/02 by Reiner COLLMANN against Germany

The European Court of Human Rights (Fifth Section), sitting on 3 April 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 , an d Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 25 July 2002,

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 Reiner Collmann, is a German national who was born in 1941 and lives in Fortaleza ( Brazil ) . He was represented before the Court by Mr V. Hente, a lawyer practising in Strasbourg ( France ) . The German Government (“the Government”) were represented by their Agent, Mr s A. Wittling-Vogel, Ministerial dirigentin , of the Federal Ministry of Justice .

A. The circumstances of the case

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

On 15 July 1989 the motor yacht “Carat” caught fire and sank south of Cap Tossa between the Spanish coast and Ibiza . The German ship-owner and a Brazilian crew member were rescued by a Moroccan ferry passing by. Substantial damage was claimed for the loss of the vessel. The applicant submitted an expert report asserting that the market value of the ship was DEM 935,000. The insurance company and the Berlin police made an inquiry into the sinking of the vessel.

On 23 October 1992 the Berlin-Tiergarten District Court ( Amtsgericht ) issued an international warrant of arrest against the applicant suspecting him of having taken part as an expert in asserting a fraudulent claim in an amount of approximately one million German marks against an insurance carrier for the loss of the motor yacht. On the applicant ’ s appeal the Berlin Regional Court ( Landgericht ) confirmed the warrant of arrest.

On 30 March 1994 the applicant was arrested in Brazil and taken in detention in view of his extradition. On 13 August 1994 he was extradited to Germany and on 14 August 1994 taken in detention on remand. The indictment dated 25 November 1994 charged the applicant with insurance fraud under Article 265 of the Criminal Code (in its version in force until 31 March 1998) . The applicant was accused of having been involved with others in the intentional sinking of an insured ship for the purpose of deriving an unjust economic advantage.

The applicant ’ s requests for release were dismissed by the Berlin Regional Court on the ground that there was a risk of collusion.

On 15 June 1995 the trial started before Berlin Regional Court ( Landgericht ) .

On 26 April 1996 the applicant complained to the Berlin Constitutional Court ( Verfassungsgerichtshof ) claiming that there was no evidence to suspect him of having committed or prepared an offence, and that his preventive detention was unlawful.

On 9 May 1996 the Regional Court ordered the applicant ’ s release having regard inter alia to the long period spent by the applicant in detention on remand.

On 20 November 1996 the applicant withdrew his constitutional complaint to the Berlin Constitutional Court ..

On 11 March 1998 the Berlin Regional Court convicted another accused involved in the loss of the ship of fraud and sentenced him to two years ’ imprisonment.

On 31 October 1996, after having held 73 hearings, the Regional Court stayed the proceedings and revoked the warrant of arrest issued against the applicant on the ground that he suffered from a long-lasting illness. Having regard to his poor health, it did not fix a new hearing.

By the Sixth Criminal-Law Reform Act of 1998 , Article 265 of the Criminal Code, among other provisions, has been amended reducing the limitation period from twenty to ten years. As a consequence thereof, the limitation period for the charges brought against the applicant under that provision expired on 15 July 1999.

On 15 February 2000 the Regional Court discontinued the criminal proceedings on the ground of prescription of prosecution . It ordered the costs of the proceedings and the applicant ’ s necessary costs and expenses to be borne by the Treasury, while it refused to grant the applicant compensation for the prosecution measures taken against him, namely for the time spent in detention in view of his extradition and the detention on remand, the search of his home, office and his prison cell and the confiscation of a l ife raft and various documents. The Regional Court relied on Section 5 § 2, first sentence, of the Act on Compensation for Prosecution Measures ( Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen ) . In accordance with this provision compensation shall be denied if the accused had deliberately or grossly negligently caused the prosecution measures taken against him. According to the Regional Court , gross n egligence was the failure to use such care as a reasonably prudent and careful person would use under similar circumstances in order to be protected against harm by prosecution measures, or the failure to do what a reasonable person would have done under the circumstances. The existence of gross negligence must be assessed with reference to those facts which were known at the time of issuing or maintaining the respective measure.

The Regional Court considered that the prosecution measures were occasioned by the applicant ’ s gross negligence. It mentioned in particular that the ship for which an insurance claim was made, had turned out to be a ship that the applicant had bought under a pseudonym and had modified in order to make it look as a ship of a higher value corresponding to that described in his expert report. These facts were proven beyond a reasonable doubt at the time of issuing the warrant of arrest and had been confirmed by further investigations and the evidence obtained at the oral hearings.

The applicant appealed against that decision arguing that the Regional Court had committed errors of fact and law and arbitrarily assessed the evidence.

On 22 March 2000 the Berlin Court of Appeal ( Kammergericht ) dismissed the applicant ’ s appeal lodged against the above decision.

On 15 January 2001 the Berlin Regional Court fixed the amount of the costs to be reimbursed to the applicant at DEM 812.80. The applicant ’ s appeal against this decision was dismissed by the Berlin Court of Appeal on 21 May 2001 .

On 18 May 200 1 the Federal Constitutional Court ( Bundesverfassungsgericht ) , sitting as a bench of three judges, refused to admit the applicant ’ s constitutional complaint for adjudication without giving further reasons for its decision .

B. Relevant domestic law

Compensation for prosecution measures is covered by the Act on Compensation for Prosecution Measures ( Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen ).

In cases where an accused is acquitted or where the proceedings against him are discontinued or where a court refuses to open the proceedings against him, he is entitled to compensation for damages suffered due to time spent in detention on remand or due to other prosecution measures (Section 2).

Pursuant to Section 5 § 2 of that law, compensation for prosecution measures shall be denied i n cases where the accused has deliberately or in a grossly negligent manner caused the prosecution measure.

COMPLAINTS

Th e applicant complain ed under Articles 3, 5, 6 and 8 of the Convention about his detention in Brazil in view of his extradition to Germany and the conditions of that detention and in particular about the refusal of the Berlin Regional Court to grant him compensation for the prosecution measures taken against him.

He complained furthermore under Article 5 §§ 1 and 3 of the Convention about the alleged unlawfulness and the length of his detention on remand in Germany . In his submission, no evidence existed which could justify the charges against him.

Invoking Article 6 of the Convention, the applicant complained that he was denied a fair trial.

He finally complain ed under Article 8 of the Convention that the criminal proceedings instituted against him infringed his right to respect for his private and family life.

THE LAW

1. The applicant complained about the conditions of his detention in Brazil in view of his extradition to Germany .

The Court emphasises that an application under Article 34 of the Convention can be directed only against one of the Contracting Parties. Brazil is not a Contracting Party to the Convention and consequently the rights and freedoms guaranteed by that Convention cannot be invoked in respect of that country.

This part of the application is therefore outside the competence of the Court ratione personae and must be declared incompatible with the provisions of the Convention and, as such, inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant complained under Article 5 of the Convention that his deprivation of liberty had been unlawful. He complained in particular that it was imposed in the absence of a reasonable suspicion. He also complained about the length of his pre-trial detention.

The Court considers it appropriate first to determine whether the applicant has complied with the admissibility requirements defined in Article 35 § 1 of the Convention, which stipulates:

“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

The Court recalls that the purpose of the six-month rule is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time (see Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002, and Bayram and Yıldırım v. Turkey (dec.), no. 38587/97, ECHR 2002 ‑ III).

The Court further recalls that if no remedies are available or if they are judged to be ineffective, the six-month time-limit in principle runs from the date of the act complained of (see Hazar and others v. Turkey (dec.), no. 62566/00, 10 January 2002 ).

In the present case the Court finds that in the absence of any final court decision, the six months ’ period began on 9 May 1996, i.e. the date when the applicant ’ s preventive detention ended. However, the application was introduced before the Court only on 4 November 2001 , which is more than six months from 9 May 1996 .

It follows that this part of the application has been introduced out of time and is inadmissible under Article 35 §§ 3 and 4 of the Convention.

3. The applicant complained under Articles 5 § 5 of the Convention that the domestic courts had refused to grant him compensation for the time spent in detention. Article 5 § 5 reads as follows:

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4. The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court ( N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002 ‑ X; Pantea v. Romania , no. 33343/96, judgment of 3 June 2003, § 262).

In the present case the Court is prevented from proceeding directly to an examination of the applicant ’ s complaints relating to his detention on remand as they are out of time.

In the absence of a finding of a breach of Article 5, paragraphs 1 to 4 of the Convention, Article 5 § 5 is not applicable in the present case.

It follows that this part of the application is outside the competence of the Court ratione m ateriae and must be declared incompatible with the provisions of the Convention and, as such, inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

4. The applicant further complained under Article 6 of the Convention that he had not received a fair trial.

The Court notes that the applicant ’ s situation was no longer adversely affected after 15 February 2000 when the Berlin Regional Court discontinued the proceedings.

The Court therefore concludes that the applicant can no longer claim to be a “victim” within the meaning of Article 34 of the Convention of the alleged violations of Article 6 (see, mutatis mutandis , X. v. Austria , no. 5575/72, Commission decision of 8 July 1974, Decisions and Reports (DR) 1, p. 44).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5. The applicant complained also about the decision of the Berlin Regional Court of 15 February 2000 , by which he was refused compensation on the ground that he had caused the prosecution measures against him in a grossly negligent manner.

The Court has examined this complaint under Article 6 § 2 of the Convention, which provides as follows:

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

The Government requested the Court to declare the case inadmissible as the applicant had failed to exhaust the domestic remedies as required by Article 35 § 1 of the Convention. They maintained in particular that the applicant had failed to substantiate his constitutional complaint sufficiently and had thus not complied with the formal admissibility requirements.

The applicant contested this view. He contended that, represented by lawyers, he ha d adequately motivated his constitutional complaint consisting of nineteen pages.

The Court notes that the Federal Constitutional Court had refused to admit the applicant ’ s constitutional complaint without giving further reasons for its decision. In particular, in its decision that court had not found the applicant ’ s complaint to be inadmissible for a lack of substantiation. In these circumstances, it is not the function of the Court to substitute itself for the Federal Constitutional Court and to speculate why that court had decided not to admit the complaint. It is notably not for the Court to determine whether or not the Constitutional Court had considered or should have considered the applicant ’ s complaint as sufficiently substantiated and therefore as admissible (see Süss v.Germany (dec.), n o 63309/00, 13 O ctob er 2005 ).

The Court concludes that the applicant obtained a decision of the Federal Constitutional Court in compliance with the formal requirements and time-limits laid down in domestic law. This complaint cannot therefore be rejected for non-exhaustion of domestic remedies under Article 35 § 1 of the Convention.

As regards the compliance with Article 6 § 2, the Government argued that the applicant ’ s complaint was in any event ill-founded. The applicant failed to sufficiently substantiate the alleged violation of this provision as required by Article 34, first sentence, of the Convention. He had not even submitted the full text of the contested decision of the Regional Court .

Moreover, neither Section 5 § 2 of the Act on Compensation for Prosecution Measures as such nor the decision of the Berlin Regional Court of 15 February 2000 did infringe the presumption of innocence.

Under Section 5 § 2 of the Act on Compensation for Prosecution Measures , the refusal of compensation was not linked to the determination of the defendant ’ s guilt, but was rather to be regarded as an application of the general notion of civil liability laid down in Article 254 ( contributory negligence ) of the Civil Code. Where the person concerned had caused the prosecution measure by acting with gross negligence, compensation had to be refused.

As to the decision of the Berlin Regional Court , the Government maintained that the only question at issue was whether the applicant had intentionally or grossly negligently caused the prosecution measures taken against him. The Regional Court referred in that connection merely to factual circumstances at the time when the warrant of arrest was issued. The findings of the Regional Court did not constitute any findings of guilt and thus did not breach the presumption of innocence.

The applicant contested this view. He complained about the criminal proceedings as a whole. He maintained that he was refused a fair trial, that the accusations against him had been manipulated by the insurance company, the Berlin police and the judicial authorities and were based on an erroneous appreciation of the facts. There was no casual link between the prosecution measures and his conduct at the relevant time. The prosecution measures were based on declarations of witnesses and the result of a serious misconduct of the prosecution authorities. The findings of the Regional Court contradicted his own verbatim records of the hearings. From the beginning he had done everything to prove his good faith, to protect himself against any harm caused by prosecution measures and dissipate the suspicion against him. However, his arguments had never been taken into consideration by the judicial authorities. With reference to the case-law and legal literature on the subject of gross negligence, the applicant contended that his conduct could not be defined as an extreme departure from the ordinary standard of conduct justifying the qualification of his conduct as grossly negligent.

The applicant submitted that in their observations the Government indirectly admitted the breach of the presumption of innocence. He had always refused any deal offered by the judicial authorities as being unlawful and requested to be acquitted. That was the reason for his continued detention in order to extort a confession. That also explained the length of his detention on remand and of the criminal proceedings. The aim was to hide the chaotic conditions of the investigations, the absence of any evidence to bring charges and a completely erroneous indictment. The refusal of compensation based on a finding of guilt constituted a breach Article 6 § 2 of the Convention.

The Court recalls that the presumption of innocence is infringed if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty. The scope of Article 6 § 2 is not therefore limited to pending criminal proceedings but extends to judicial decisions taken after prosecution has been discontinued (see, among other authorities, Minelli v. Switzerland , judgment of 25 March 1983, Series A no. 62; Englert v. Germany , judgment of 25 August 1987, Series A no. 123-B ; and Nölkenbockhoff v. Germany , judgment of 25 August 1987, Series A no. 123-C).

In addition, the Court observes that, according to its settled case-law, neither Article 6 § 2 n or any other provision of the Convention gives a person “charged with a criminal offence” a right to reimbursement of his costs or a right to compensation for lawful detention on remand where proceedings against him are discontinued ( see Dinares Peñalver v. Spain ( dec. ), no. 44301/98, 23 March 2000; see also Englert and Sekanina , cited above, p. 54, § 36, and pp. 13-14, § 25, respectively, Hibbert v. the Netherlands (dec.), no. 38087/97, 26 January 1999; and Del Latte v. the Netherlands , no. 4760/98, § 30, 9 November 2004) ). Merely refusing compensation does not therefore in itself infringe the presumption of innocence ( see , mutatis mutandis , Nölkenbockhoff and Minelli , cited above, p. 79, § 36, and p. 17, §§ 34-35, respectively ).

The Court distinguished between decisions which describe a “state of suspicion” and decisions which contain a “finding of guilt”. It considered that in cases of discontinuation without acquittal only the second category is incompatible with Article 6 § 2 of the Convention (see, among other authorities, Lutz v. Germany , judgment of 25 August 1987, Series A 123, p. 25, § 62 and Del Latte , cited above, § 31).

T urning to the present case, t he Court notes that the conclusion of the criminal proceedings has not resulted in a decision on the merits of the accusation. As regards the reasons stated by the Regional Court for rejecting the applicant ’ s compensation claim, in accordance with Section 5 § 2, first sentence, of the Act on Compensation for Prosecution Measures , the Court notes that the contested decision was based on factual circumstances known to the judicial authorities at the time when issuing the warrant of arrest. They concerned in particular the applicant ’ s conduct previous to the sinking of the ship. The Court finds that the Regional Court confined itself in substance to noting that the applicant had acted with gross negligence and was thus responsible for the prosecution measures taken against him. This conclusion did not contain any finding of guilt . Moreover, the refusal to award the applicant compensation for the prosecution measures taken against him does not amount to a penalty or a measure that can be equated with a penalty (see Nölkenbockhoff, cited above, pp. 55, 56, § 40). The competent court did not impose any sanction on him but merely refused to order that compensation be paid out of public funds.

The Court, therefore, cannot find that the Regional Court ’ s decision on the applicant ’ s requests for compensation offended the presumption of innocence guaranteed by Article 6 § 2 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention. Accordingly, the application of Article 29 § 3 of the Convention to the case should be discontinued.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President