THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 64387/01 by Reinhold UHL against Germany

The European Court of Human Rights (Third Section), sitting on 6 May 2004 as a Chamber composed of:

Mr I. Cabral Barreto , President , Mr G. Ress , Mr B. Zupančič , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve , Mr K. Traja, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 15 December 2000,

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, Reinhold Uhl, is a German national, who was born in 1934 and lives in Königstein, Germany. He is represented before the Court by Mr Heinrich Mohn, a lawyer practising in Frankfurt/Main.

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

A. Investigations by the Tax Authorities and the Public Prosecutor's Office

On 23 October 1990 a criminal charge was laid against the applicant, accusing him of tax evasion.

On 8 January 1991 the Frankfurt/MainTax Office instituted criminal proceedings against the applicant and informed him accordingly on 10 January 1991. These proceedings were eventually extended to the suspicion of fraud to the detriment of the joint owners of a plot of land and fraudulent breach of trust to the detriment of the city of Königstein by the Frankfurt/Main Public Prosecutor's Office.

On 5 March 1991 the competent public prosecutor at Königstein applied for a search warrant concerning the office of a notary at the Königstein District Court. A (modified) search warrant was issued by the Königstein District Court on 24 April 1991 and the warrant was executed on 14 June 1991, when two documents were seized.

Between 23 August 1991 and 26 March 1992 the Public Prosecutor's Office granted access to the case files to the city of Königstein and the applicant's counsel.

From 26 March 1992 until 23 November 1992 the investigations were stayed by the Public Prosecutor's Office in order to await the outcome of the disciplinary proceedings instituted by the city of Königstein against the applicant. The latter proceedings were then themselves stayed awaiting the outcome of the criminal proceedings.

The hearing of the applicant as an accused by the Public Prosecutor's Office was postponed from 10 February 1993 to 25 June 1993 upon the request of the applicant's counsel.

On 3 January 1994 the Frankfurt/Main Tax Office, after hearing two witnesses, made their closing comments regarding the investigations against the applicant.

On 12 December 1994 the Prosecutor's Office, after having ordered further investigations by the Frankfurt/Main Tax Office, issued an indictment charging the applicant with fraud, tax evasion and fraudulent breach of trust.

B. Court proceedings

On 10 October 1995, following three hearings in September and October 1995, the Frankfurt/Main District Court convicted the applicant of fraud, fraudulent breach of trust and tax evasion in accordance with the indictment. It sentenced him to two years and six months' imprisonment. The District Court found that the applicant had, in his position as head of the municipal building office, deceived the joint owners of real estate as to the value of their property in order to induce them to sell it at a low price to a front man (Strohmann) working for him. He had enriched himself by, again via the front man, offering a part of this property to the municipality for an expansion of the local cemetery. The rest of the property had been sold on the open market.

On 20 May 1996 the Frankfurt/Main Regional Court, following the applicant's appeal and eight trial hearings in April and May 1996, amended the District Court's decision to the effect that it convicted the applicant of fraud and tax evasion and sentenced him to one year and nine months' imprisonment suspended on probation. At the same time, the Regional Court rejected the applicant's request that an expert opinion be prepared on the actual value of the real estate involved, finding that such an opinion was unnecessary, as the Regional Court itself had sufficient knowledge of the matters before it.

On 21 May 1996 the Public Prosecutor's Office, and on 23 May 1996, the applicant appealed against this decision on points of law.

On 6 December 1996 the Frankfurt/Main Court of Appeal received the case files together with the substantiation of the appeal by the Prosecutor's Office and the defence counsel.

On 28 November 1997 the Frankfurt/Main Court of Appeal, following a hearing, set aside the Regional Court's decision. It found that the Regional Court should have ordered that an expert opinion be prepared on the value of the property concerned. The case was remitted to a different chamber of the Frankfurt/Main Regional Court.

On 13 March 1998 the Regional Court ordered that an expert opinion on the value of the real estate concerned be prepared by the architect A.

On 1 October 1998 the Regional Court received the expert opinion.

On 5 May 1999 the applicant, in the first rehearing by the Frankfurt/Main Regional Court, requested that the proceedings be discontinued on account of their excessive length.

On 15 June 1999 the Frankfurt/Main Regional Court, following nine hearings in May and June 1999, again convicted the applicant of fraud and tax evasion and sentenced him to one year and nine months' imprisonment suspended on probation. It found that the length of proceedings did not warrant their discontinuance, as proceedings dealing with economic or tax-related offences were always time-consuming. Considering the complexity of the issues involved, the Regional Court did not find the phase of preliminary investigations or the overall length of proceedings excessively long, in particular as the applicant had not been detained at any time. It also noted that the applicant had himself prolonged the proceedings by lodging an appeal and insisting on an expert opinion. It found that the loss caused by the applicant's fraud, following the expert opinion, had to be assessed to be even higher than presumed by the Regional Court in its first judgment on 20 May 1996. Therefore, the Regional Court considered that, despite the time which had elapsed since then, the sentence imposed by the Regional Court in its first judgment was not to be reduced.

On 17 June 1999 the applicant appealed against this judgment on points of law, again requesting that the proceedings be discontinued because of their excessive length.

On 18 January 2000 the Frankfurt/Main Court of Appeal received the case files together with the applicant's substantiation of the appeal and the observations of the Public Prosecutor's Office.

On 24 March 2000 the Frankfurt/Main Court of Appeal confirmed the Regional Court's decision and dismissed his request to discontinue the proceedings on account of their allegedly excessive length.

On 2 May 2000 the applicant lodged a constitutional complaint consisting of eight pages with the Federal Constitutional Court in which he complained about the allegedly excessive length of the proceedings before the German criminal courts, referring in particular to the delays caused by the Prosecutor's Office and the Frankfurt/Main Regional Court and Court of Appeal. The applicant asserted that due to the delays in the proceedings, he had been suspended from office and his pension benefits had been reduced. He also complained about a loss of reputation.

On 5 June 2000 (decision served on 15 June 2000) the Federal Constitutional Court refused to entertain the applicant's constitutional complaint. It found that the applicant had failed sufficiently to substantiate his complaint. He failed to produce the written submissions of the Public Prosecutor's Office to the Court of Appeal, substantiating their appeal on points of law, from which the Federal Constitutional Court could have drawn further conclusions as to whether the applicant had himself sufficiently substantiated his appeal before the Court of Appeal.

Furthermore, insofar as the applicant complained about the delays in the proceedings, he had in particular not specified which delays he considered to be attributable to the judicial organs and had not placed such delays in relation to the overall length of the proceedings. The Federal Constitutional Court also found that the applicant had failed to assess the seriousness of the criminal offences concerned, the complexity of the object of the proceedings, and the extent to which he has suffered damage on account of the length of the proceedings.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention about the length of the criminal proceedings against him.

THE LAW

The applicant's complaint relates to the length of the criminal proceedings against him. He relies on Article 6 § 1 of the Convention 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 ...”

a) The Government contend that the applicant did not exhaust all domestic remedies as required by Article 35 § 1 of the Convention. They point out that the Federal Constitutional Court refused to admit the applicant's constitutional complaint because the applicant failed sufficiently to substantiate his complaint, which therefore was inadmissible.

The applicant contests these submissions. He maintains that the Federal Constitutional Court arbitrarily refused to entertain his adequately substantiated constitutional complaint and claims that this decision may not exclude his access to the Court in Strasbourg.

The Court reiterates that, whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 18, § 34; Janssen v. Germany, no. 23959/94, Commission decision of 9 September 1998; Elçi and others v. Turkey, nos. 23145/93 and 25091/94, § 604, 13 November 2003).

The Court notes that the applicant, in his submissions to the Federal Constitutional Court, set out on eight pages the various stages of the criminal proceedings against him, pointing out which delays in the proceedings he considered to be excessive, and specifying the personal and financial damage allegedly caused to him by the proceedings' length. The Court therefore considers that the applicant has raised the substance of his complaint before the Federal Constitutional Court.

Moreover, the Court recalls that non-exhaustion of domestic remedies cannot be held against the applicant if, in spite of the latter's failure to observe the forms prescribed by law, the competent authority has nevertheless examined the substance of the appeal (see, among other authorities, Skalka v. Poland (dec.), no. 43425/98, 3 October 2002).

The Court notes in this respect that the Federal Constitutional Court, by enumerating certain aspects concerning the length of the criminal proceedings against the applicant which the latter should have addressed in more detail, in fact partly dealt with the substance of the applicant's complaint.

Therefore, the Court considers that the applicant has exhausted domestic remedies as required by Article 35 § 1 of the Convention.

b) As regards the length of the criminal proceedings against the applicant, the Government submit that in the present case the proceedings did not last unreasonably long. The case was to a certain extent complex, which is shown by the extensive case files and the facts that the Frankfurt/Main Regional Court, before reaching its second judgment in 1999, still needed nine days to hear the case and that the judgments of the Frankfurt/Main Regional Court are correspondingly long (30 and 20 pages respectively). Considering the significance of the case for the applicant, the Government point out that his case did not need to be handled in a particularly speedy manner, as the applicant had not been detained at any time during the proceedings.

Moreover, according to the Government each of the various stages of the criminal proceedings lasted for an appropriate length of time. In particular, the duration of the preliminary investigations was still reasonable, because three different offices, namely the Public Prosecutor's Office, the Frankfurt/Main Tax Office and the city of Königstein, were involved in the proceedings. Furthermore, the main witness for the prosecution was not available until the end of 1992. The applicant himself had caused a delay of six months in the preliminary investigations by requesting his examination to be postponed. Considering the fact that the Frankfurt/Main Regional Court, after its judgment of 1996 had been set aside, had to commission an expert opinion and needed several consecutive days to hear the applicant's case, the period during which the case was pending before the Regional Court in 1998/1999 is to be considered as appropriate.

In the applicant's view the “reasonable time” requirement laid down in Article 6 § 1 of the Convention has not been complied with. His case was not of a complex nature, as only ten witnesses had to be questioned during the trial and as he was the only person accused. He submits that the delays in the proceedings were entirely attributable to the conduct of the judicial authorities. He claims in particular that the duration of the preliminary proceedings, the proceedings before the Frankfurt/Main Court of Appeal before reaching their first judgment in 1997 and the proceedings before the Frankfurt/Main Regional Court rehearing the case in 1998/1999 were excessive. For the applicant, a civil servant, the case was of great significance, because he was suspended from office during the time the criminal proceedings were pending, his salary was reduced and he suffered from a loss of reputation.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant's conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

Declares the application admissible, without prejudicing the merits of the case.

Vincent Berger Ireneu Cabral Barreto Registrar President