THIRD SECTION

DECISION

Application no. 3737/17 Heinz Heinrich PIROTH against Germany

The European Court of Human Rights (Third Section), sitting on 21 September 2021 as a Committee composed of:

Georgios A. Serghides, President, Anja Seibert-Fohr, Frédéric Krenc, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to the above application lodged on 10 January 2017,

Having regard to the decision to give notice to the German Government (“the Government”) of the complaint under Article 5 § 3 of the Convention and to declare the remainder of the application inadmissible,

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

1. The applicant, Mr Heinz Heinrich Piroth, is a German national, who was born in 1952 and is detained in Wöllstein. He was represented before the Court by Mr U. Sommer, a lawyer practising in Cologne.

2. The German Government (“the Government”) were represented by their Agents, Ms K. Behr, Mr H.-J. Behrens and Ms N. Wenzel, of the Federal Ministry of Justice and Consumer Protection.

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

4. On 14 August 2012 the applicant was arrested. He was suspected of having committed more than 1,200 counts of joint serious fraud by selling worthless shares of the Swiss NicStic stock corporation to more than 500 persons, causing damage of more than 19 million euros (EUR).

5 . The Stuttgart District and Regional Court and Court of Appeal subsequently reviewed the applicant’s detention at regular intervals. All courts found that there was a strong suspicion of fraud against the applicant and a risk of flight. They noted that in view of his previous convictions of fraud and the current charges, the applicant had to expect a long prison sentence if convicted. He was getting divorced, his children were of age and his employing company was insolvent. He had absconded to the United States of America in the course of previous criminal proceedings against him. In the present proceedings, he had notified the authorities of having moved to Spain while he continued living in Germany without a registered address. His state of health (he suffered notably from hypertension and diabetes) would not prevent him from fleeing. Therefore, a suspension of the warrant on bail was not sufficient to secure his presence at the trial.

6. In the proceedings at issue, the Stuttgart Regional Court, on 7 November 2016, dismissed a fresh request made by the applicant to quash or suspend the execution of the order for his detention on remand.

7. On 21 November 2016 the Stuttgart Court of Appeal dismissed the applicant’s appeal. It confirmed the Regional Court’s findings that, having regard to the concrete state of evidence in the criminal proceedings against the applicant before that court, there remained a strong suspicion of fraud against the applicant. Furthermore, there was still a risk that the applicant would abscond if released. The applicant had to expect a long term of imprisonment. He did not have strong social ties in Germany which would sufficiently limit the risk of flight.

8 . Furthermore, the applicant’s continued detention was still proportionate. In particular, the Regional Court had not unduly delayed the criminal proceedings against him. The facts at issue in the proceedings were particularly complex and necessitated international legal assistance. Hearings repeatedly had to be shortened to take account of the applicant’s inability to stand trial for a whole day on health grounds. The applicant and his co-accused had further made extensive use of their procedural rights to request evidence to be taken or make statements.

9. On 15 December 2016 the Federal Constitutional Court (file no. 2 BvR 2514/16) declined to consider the applicant’s constitutional complaint against the decisions of 7 and 21 November 2016, in which he had complained about the unreasonable duration of his detention.

10 . On 26 July 2013 the Stuttgart Regional Court started the trial against the applicant and B. on charges of fraud in more than 1,200 cases. On 4 February 2014 the trial had to be stopped due to the pregnancy of the judge rapporteur.

11 . On 25 March 2014 the court started the trial anew. It held hearings on 197 days, in which it questioned some 75 witnesses and one expert. It further heard 14 witnesses in Switzerland following mutual assistance, examined some 750 documents and regularly consulted psychiatric experts on the applicant’s fitness for trial.

12 . On 7 March 2017 the Stuttgart Regional Court convicted the applicant of seven counts of fraud, committed jointly with B., having caused damage of some 15 million euros (EUR) to more than 500 purchasers of worthless shares. It sentenced the applicant to eleven years and six months’ imprisonment. The court further held that seven months of the applicant’s sentence were to be considered as having been served owing to the unreasonable length of the proceedings in breach of Article 6 § 1 of the Convention.

13 . The Regional Court found that there had been undue delays of some eleven months in the investigation proceedings prior to the applicant’s arrest. Moreover, the fact that the trial had to restart was imputable to the court and had led to a further delay of eight months. The court stated that it had taken into consideration when reducing the sentence that during the delay of eight months in the court proceedings, the applicant had been in detention on remand.

14. On 2 April 2019 the Regional Court, following a remittal of the case in this respect, fixed the applicant’s sentence anew, at nine years and ten months’ imprisonment. The reduction of the sentence due to the length of the proceedings was upheld. The judgment subsequently became final.

THE LAW

15. The applicant complained that the length of his detention on remand had been excessive and that he should have been released. He relied on Article 5 of the Convention which, in so far as relevant, provides:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

16. In the Government’s submission, the length of the applicant’s detention on remand, which had been based on a risk of flight, had either not been excessive or the applicant had lost his status as a victim of a breach of Article 5 § 3 for the purposes of Article 34 by the considerable mitigation of his sentence.

17. The applicant argued that the duration of his detention at issue had been clearly unreasonable; his release should have been ordered. The mitigation of his sentence in the Regional Court’s judgment had not afforded sufficient redress for a breach of his rights under Article 5.

18. The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, KudÅ‚a v. Poland [GC], no. 30210/96, §§ 110-11, ECHR 2000 ‑ XI; McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006 ‑ X; and Idalov v. Russia [GC], no. 5826/03, §§ 139-40, 22 May 2012).

19. The period to be considered started on 14 August 2012 when the applicant was arrested and ended, for the purposes of Article 5 § 3 (see Labita v. Italy [GC], no. 26772/95, § 147, ECHR 2000 ‑ IV), on 7 March 2017 when the Stuttgart Regional Court convicted the applicant at first instance. It thus lasted for four years, six months and 23 days.

20. Throughout the applicant’s detention on remand, a reasonable suspicion persisted that the applicant committed serious acts of fraud by selling worthless shares to more than 500 persons.

21. The Court further observes that the domestic courts considered that there was a risk of flight if the applicant were released. In the proceedings at issue, they based this risk on elements relating specifically to the applicant, namely his lack of strong social ties in Germany, in addition to the long term of imprisonment he had to expect. The relevant facts in this regard had been set out by the domestic courts in detail in previous decisions on the continuation of the applicant’s pre-trial detention (see paragraph 5 above) and had not changed since then. The courts had equally found that in view of these elements, as well as the fact that the applicant had absconded and settled abroad in previous proceedings and had no longer been registered as residing in Germany in the present proceedings, a suspension of the warrant on bail was not sufficient to secure the applicant’s presence at the trial (see ibid. ); there had not been any change in the circumstances in this regard either. The Court therefore concludes that the domestic courts gave relevant and sufficient grounds for the applicant’s detention on remand and sufficiently considered alternative measures of ensuring his appearance at the trial.

22 . As to whether the domestic courts displayed “special diligence” in the conduct of the proceedings, the Court notes that the proceedings had been very complex as shown notably by the extent to which evidence had to be taken, partly abroad (see paragraphs 8 and 11 above). Moreover, owing to the applicant’s state of health, hearings could not last very long (see paragraph 8 above). Nevertheless, having regard notably to the delay of eight months caused by the necessary restart of the trial (see paragraph 22 above) attributable to the domestic authorities, the Court considers that the proceedings had not been conducted with the necessary special diligence.

23. As to whether the applicant lost his status as a victim of a breach of Article 5 § 3 (see for the relevant principles in this regard, inter alia , Dzelili v. Germany , no. 65745/01, § 83, 10 November 2005, with further references), the Court observes that the Regional Court, in its judgment convicting the applicant, expressly acknowledged that the length of the proceedings had been unreasonable. While the court only referred to Article 6 § 1 in this regard, it must be considered to have recognised at least in substance also a breach of Article 5 § 3 in that it took into account that part of the delay in the proceedings had occurred while the applicant had been in detention on remand (see paragraphs 12-13 above).

24. As for the redress afforded to the applicant for the breach of Article 5 § 3, the Regional Court explicitly took into consideration in the reduction of the applicant’s sentence by seven months that during a delay of eight months in the proceedings, the applicant had been detained on remand (see paragraph 13 above). While it may have been preferable for the court to state the extent to which the sentence was reduced as a result of the acknowledged breaches of Articles 6 § 1 and 5 § 3 separately in order to avoid uncertainties, it is nevertheless clear that the express reduction of the sentence by seven months included redress for a breach of Article 5 § 3 (see, a contrario , Dzelili , cited above, §§ 85 and 52-58). Having regard to the extent of the delays attributable to the authorities in the complex proceedings at issue (see paragraph 22 above), the Court further considers that the total reduction of the sentence by seven months can be considered as adequate for redressing the breach of Article 5 § 3 in addition to the acknowledged breach of Article 6 § 1.

25. Consequently, the applicant has lost his status as a victim of a breach of Article 5 § 3, for the purposes of Article 34. It follows that the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 14 October 2021. nature_p_1}              {signature_p_2}

Olga Chernishova Georgios A. Serghides Deputy Registrar President