FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 25510/94 by M. C. against Germany

The European Court of Human Rights ( Fourth Section ), sitting on 18 May 2000 as a Chamber composed of

Mr A. Pastor Ridruejo, President , Mr G. Ress, Mr L. Caflisch, Mr J. Makarczyk, Mr V. Butkevych, Mr J. Hedigan, Mrs S. Botoucharova, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 10 August 1994 and registered on 28 October 1994,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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 is a Turkish citizen of Kurdish origin, born in 1961 and living in Aachen .  He is represented by Mr Hofmann , a lawyer practising in Aachen .

On 6 June 1985 the applicant was issued with a penal order ( Strafbefehl ) by the Aachen District Court ( Amtsgericht ) for having entered the territory of Germany illegally, i.e. without a visa.  The applicant was fined 20 day rates in the amount of 5 DM each.

Upon the applicant’s objection ( Einspruch ), trial proceedings were instituted before the District Court. In these and the following proceedings, the applicant was represented by his defence counsel, Mr Hofmann . At a hearing before the District Court on 17 January 1986, the applicant's counsel declared that asylum proceedings were pending. The court decided to adjourn the case sine die .

On 13 February 1987, in the resumed proceedings, the District Court convicted the applicant of having illegally entered the Federal Republic of Germany. The applicant was sentenced to a fine of 20-day rates in the amount of 5 DM each.

On 13 November 1987 the Cologne Court of Appeal ( Oberlandesgericht ), upon the applicant’s appeal on points of law ( Revision ), quashed the judgment of 13 February 1987 and sent the case back for a new trial.

On 16 November 1992 the District Court acquitted the applicant, who had in the meantime been recognised as a refugee, and imposed the costs of the proceedings on the Treasury. The District Court decided furthermore that it would deal with the applicant’s claim for compensation under the Act on Compensation for Criminal Prosecution Matters ( Gesetz über die Entschädigung für Strafverfolgungsmassnahmen ) in separate proceedings. The judgment was served on the applicant on 11 December 1992.

On 3 March 1993 the District Court dismissed the applicant’s compensation claim.

On 15 July 1993 the Aachen Regional Court rejected the applicant’s appeal. It found that the Act on Compensation for Criminal Prosecution Matters provided compensation only and exclusively for damages resulting from conviction or other criminal prosecution measures enumerated in Section 2 of the Compensation Act. Compensation in respect of an excessive length of criminal proceedings was not comprised. Neither did the Convention provide for such a right. Moreover, the conditions for claiming compensation of the applicant’s provisional arrest were not met.

The applicant then lodged a constitutional complaint ( Verfassungsbeschwerde ), which was rejected by a group of three judges of the Federal Constitutional Court on 28 February 1994.

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 under Article 6 § 1 of the Convention relates to the length of criminal proceedings.

The Government maintains that the applicant did not submit his application within a period of six months, as required under Article 35 § 1 of the Convention. According to them, this period started to run on 16 November 1992 when the Aachen District Court acquitted the applicant. In this context, they explain that the applicant was not required to lodge a constitutional complaint with the Federal Constitutional Court as, given the low amount of the fine initially imposed and his subsequent acquittal, such a complaint would have been without prospect of success. They further submit that the compensation proceedings instituted by the applicant could not cover the question of the alleged excessive length of the criminal proceedings and did not, therefore, affect the running of the period of six months.

The applicant argues that by claiming compensation before the Aachen District Court and the Regional Court and lodging a complaint with the Federal Constitutional Court, he exhausted the remedies as required under the Convention.

The Court recalls that, pursuant to Article 35 § 1 of the Convention, it may only deal with a matter “within a period of six months from the date on which the final decision was taken”.

The Court must determine the date of the “final decision” in the present case.

The Court notes that the applicant was acquitted by the Aachen District Court on 16 November 1992. He subsequently pursued court proceedings claiming damages for, inter alia , the allegedly excessive length of the criminal proceedings.

An action for damages may be relevant for the purposes of Article 35 § 1, formerly Article 26, of the Convention, but the only remedies which that Article requires to be exhausted are those that relate to the breaches alleged and at the same time are avalaible and sufficient (see the Vernillo v. France judgment of 20 February 1991, Series A n° 191, p. 12, § 27, with further references; Application no. 14992/89, Kemmache v. France, DR 66, 247(250)).

Section 2 of the Act on Compensation for Prosecution Matters enumerates exhaustively the prosecution measures that give rise to compensation. An excessive length of criminal proceedings is not included amongst these measures. The compensation proceedings instituted by the applicant cannot, therefore, be regarded as an effective remedy regarding the length of the criminal proceedings against him. Accordingly, the decision of the Federal Constitutional Court of 28 February 1994, rejecting his complaint about the refusal of compensation, cannot be taken into consideration in determining the final decision within the meaning of Article 35 § 1.

Assuming that the applicant was not required to lodge a constitutional complaint with the Federal Constitutional Court following his acquittal, the Court finds that the last decision regarding his case was given by the Aachen District Court on 16 November 1992 and served on 11 December 1992, whereas his application was only submitted on 10 August 1994 which is more than six months later.

It follows that the application is inadmissible for non-compliance with the six months’ rule set out in Article 35 § 1 of the Convention, and that it must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Antonio Pastor Ridruejo Registrar President