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FIFTH
SECTION
CASE OF
WETJEN v. GERMANY
(Application
no. 30175/07)
JUDGMENT
STRASBOURG
25
March 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Wetjen v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Karel Jungwiert, President,
Renate
Jaeger,
Mark Villiger, judges,
and Stephen
Phillips, Deputy
Section Registrar,
Having
deliberated in private on 2 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30175/07) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a German national, Mr
Bernd Rüdiger Wetjen (“the applicant”), on 12 July
2007.
- The
applicant was represented by Mr H.-P. Vierhaus, a lawyer practising
in Berlin. The German Government (“the Government”) were
represented by their Agent, Mrs A. Wittling-Vogel,
Ministerialdirigentin, of the Federal Ministry of Justice.
- On
24 October 2008 the President of the Fifth Section decided to give
notice of the application to the Government. The Federal Republic of
Germany having accepted the provisional application of the provisions
of Protocol No. 14 governing the power of three-judge committees to
decide on cases in which there is well-established case-law, it was
decided to assign the application to a Committee. It was also decided
to rule on the admissibility and merits of the application at the
same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Hildesheim.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. The investigation proceedings
- In
January 2000 the Magdeburg Public Prosecutor received two anonymous
reports. The applicant, who acted as a court-appointed liquidator, a
judge and two other liquidators were accused of collaborating to the
detriment of other liquidators and creditors.
- On
31 January 2000 the Magdeburg Public Prosecutor opened preliminary
investigations against the applicant and six other persons. The
applicant was suspected of having granted an undue benefit
(Vorteilsgewährung) and of embezzlement (Unterschlagung).
The investigations concerned, inter alia, the judge's alleged
free stay at the applicant's ski lodge and benefits in connection
with the purchase of two cars and two computers. By a letter dated 7
February 2000 the applicant was informed of the investigations.
- In
the following months, the Magdeburg Public Prosecutor (and also the
Sachsen-Anhalt State Office of Criminal Investigations) questioned
numerous witnesses and public officials of the court – partly,
moreover, with the help of Vienna Interpol –, and searched,
inter alia, the applicant's business premises, seized
documents and computers and requested information from the Credit
Control Company. The applicant and his co-defendants, on their part,
including after the submission of an interim report by the
Sachsen-Anhalt State Office of Criminal Investigations in August
2000, made rather extensive submissions and repeatedly requested
access to the files. The Magdeburg District Court also decided on an
appeal against the search of premises; proceedings against one of the
co-defendants were stayed.
- On
23 October 2000 the applicant requested the public prosecutor not to
close the investigations and announced further submissions, which he
submitted on 5 December 2000. In the meantime, further information on
insolvency proceedings in respect of the applicant over the previous
years had been obtained.
- On
16 January 2001 the Magdeburg Public Prosecutor brought charges
against the applicant, the judge and two more lawyers. The applicant
was accused of having granted undue benefits to a public official,
namely, the accused judge.
2. The interim proceedings (Zwischenverfahren)
- On
23 January 2001 two judges of the Magdeburg Regional Court indicated
possible grounds for bias.
- In
February 2001, and also three times in March 2001, the applicant
requested an extension of the time-limit set. Two of his
co-defendants changed their legal representatives; further access to
the files was also granted.
- In
April 2001 the Magdeburg Public Prosecutor challenged one of the
judges on the grounds of bias. In May 2001 the Magdeburg Regional
Court rejected this request. In June 2001 the Naumburg Court of
Appeal quashed that decision and found that the judge was biased. In
July 2001 two more judges indicated that there were grounds for bias
on their part. In August 2001 the Magdeburg Regional Court decided
that one of the judges was to be excluded on the grounds of bias.
- In
August 2001 it decided to obtain an expert opinion and heard other
witnesses. On 3 September 2001 it commissioned the expert. In October
2001 it further amended its decision. On 13 November 2001 the expert
submitted his report.
- Between
November 2001 and March 2002 a number of memorandums, a report on the
state of the investigations and further submissions by the accused
were obtained.
3. The trial proceedings
a. Proceedings before the Magdeburg Regional Court
and the Naumburg Court of Appeal
- On
12 March 2002 the Magdeburg Regional Court decided to open the trial
against the applicant as regards one offence; it refused to open a
trial against the applicant as regards the five other offences.
- On
13 March 2002 the Magdeburg Public Prosecutor lodged an appeal
against that decision in the part refusing to open proceedings. In
May 2002, when the reasoning was complete and the accused had made
further submissions, the files were transferred to the Naumburg Court
of Appeal.
- On
21 June 2002 that court considered that a trial should also be opened
as regards three of the other offences. It also decided that the main
hearing was to be held before the Stendal Regional Court.
b. Proceedings before the Stendal Regional Court and
the Federal Court of Justice
- In
July 2002 and September 2002 the applicant appointed two new legal
counsel – both were also granted access to the files.
Hereinafter, the parties agreed that hearings should take place as of
mid January 2003.
- In
February 2003 the Magdeburg Public Prosecutor laid new charges with
the Stendal Regional Court against the applicant and the judge.
- Between
5 March 2003 and 14 May 2003 eleven hearings took place. More than 20
witnesses and also experts were heard. On 3 April 2003 the
Stendal Regional Court acquitted one of the lawyers.
- On
14 May 2003 it convicted the judge of tax evasion and acquitted the
applicant and the co-defendants of all other charges. The written
judgment, comprising 59 pages, was sent to the parties in July 2003.
- On
18 August 2003 the Magdeburg Public Prosecutor appealed. In October,
following submissions by the accused, the files were transferred to
the Federal Court of Justice.
- On
25 February 2004 the Federal Court of Justice quashed the judgment in
the part acquitting the applicant and the others of the offences of
granting an undue benefit and of taking a bribe (Bestechlichkeit)
and remitted the case to the Dessau Regional Court.
c. Renewed proceedings before the Dessau Regional
Court and the Federal Court of Justice
- In
April 2004 the Dessau Regional Court received the files. In July 2004
the court and the parties agreed upon the dates of the hearings. In
September 2004 the witnesses to be heard and the experts to be
involved were designated.
- Between
October 2004 and January 2005 altogether eleven hearings took place –
five of them in January – and more than 20 witnesses were
heard. Initially, the applicant had requested the court not to hold
more than one hearing per week.
- On
19 January 2005 the Dessau Regional Court convicted the applicant of
two counts of granting undue benefit and the judge of two counts of
taking a bribe. Shortly afterwards, the applicant's legal counsel
ceased taking instructions from the applicant; his newly appointed
lawyer then requested access to the files. On 2 March 2005 the Dessau
Regional Court submitted the written judgment.
- On
6 April 2005 the applicant, as one of his co-defendants had already
done, lodged an appeal on points of law (comprising more than a
hundred pages); he also appointed another legal counsel; proceedings
against one of his co-defendants were stayed.
- In
May 2005 the Magdeburg Public Prosecutor decided not to file further
submissions and transferred the files to the Naumburg Regional Court.
In June the applicant filed further observations; in July 2005 he
again requested access to the files. On 8 September 2005, following a
remittal of the files on account of a reputedly missing approval, the
General Public Prosecutor made his submissions.
- On
12 January 2006 the Federal Court of Justice quashed the judgment and
remitted the case to the Halle Regional Court. It found that it could
not be established that the applicant and his co-defendant had
intentionally collaborated. On 8 March 2006 the court delivered the
written judgment.
d. Renewed proceedings before the Halle Regional
Court
- In
March 2006 the Halle Regional Court contacted the parties' legal
representatives in order to arrange the hearings. In June 2006 the
case was assigned to the Halle Public Prosecutor; in July 2006 the
Halle Public Prosecutor informed the court thereof. In September
2006, at the applicant's renewed request, the Halle Regional Court
decided that three judges and two lay judges should decide upon the
case.
- From
22 September 2006 to 19 October 2006 seven hearings took place. On 19
October 2006 one of the lay judges died. On 25 October 2006 the Halle
Regional Court therefore cancelled all further hearings.
- On
13 November 2006, after having been granted access to the files, the
applicant requested that the proceedings be stayed on account of
their excessive length pursuant to section 206 (a) of the Code of
Criminal Procedure, which presupposes a procedural impediment. On 13
December 2006, following submissions by all the parties, the Halle
Regional Court rejected this request as unfounded.
- By
a letter dated 16 January 2007 the applicant lodged a constitutional
complaint against the refusal. The same day, the Halle Regional Court
decided that another chamber should decide on the case.
- On
6 February 2007 the Federal Constitutional Court refused to admit the
case for adjudication as being inadmissible on the ground that the
decision under section 206 (a) of the Code of Criminal Procedure was
an interlocutory decision which could not be challenged.
- On
4 April 2007, following further submissions, the Halle Regional Court
rejected the applicant's objection (Gegenvorstellung) against
the refusal to stay the proceedings.
- In
June 2007 – the applicant had twice requested the court to
schedule a hearing – it turned out that hearings could only be
scheduled as of 12 September 2007. Thereafter, the applicant and his
co-defendant were granted access to the files. The applicant's
request to appoint a supplementary judge was rejected on 18 October
2007. A further appeal was to no avail.
- Between
25 October 2007 and 17 March 2008 15 hearings took place. More than
20 witnesses were heard and expert reports were obtained.
- On
17 March 2008 the Halle Regional Court acquitted the applicant and
the co-defendants of both charges. It also found that he was entitled
to compensation on the merits on account of the searches and the
seizures and also ordered that the Treasury bear the costs of the
proceedings and the applicant's necessary expenses.
- On
9 June 2008 the judgment became final, the Halle Public Prosecutor
having withdrawn an appeal on points of law.
- On
5 November 2008 the applicant requested the Halle Regional Court to
cover the costs of his legal representation in the amount of
EUR 61,388.27.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which 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
Government contested that argument.
- The
period to be taken into consideration began on 7 February 2000 when
the applicant was informed about the criminal investigations against
him. The proceedings ended on 9 June 2008 when the Halle Public
Prosecutor withdrew the appeal against the decision of the Halle
Regional Court of 17 March 2008 acquitting the applicant of all
charges. The proceedings thus lasted for about eight years and four
months, at the investigation stage and at three levels of
jurisdiction, including two remittals.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case. In
particular, it finds that, in view of the importance of the case to
the applicant and in spite of its complexity and the difficulties it
involved not least on account of the fact that it was borderline, the
national courts – in particular the Halle Regional Court
following the second remittal of the case – failed to conduct
the proceedings diligently.
- Having
regard to its case-law on the subject, the Court therefore considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
-
The applicant complained that he had not had an effective remedy at
his disposal to complain about the length of the proceedings. He
alleged a violation of Article 13 of the Convention, which reads
as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government acknowledged that the applicant did not have at his
disposal an effective remedy. They pointed out, however, that the
present situation had also been taken into account in the
“compensation package” which was currently being prepared
at the Federal Ministry of Justice.
- The
Court notes that this complaint is linked to the one examined above
and therefore must likewise be declared admissible.
- The
Court has already held that there is no effective remedy under German
law capable of affording redress for the unreasonable length of
criminal proceedings in cases like the present one, in which the
suspect could not be found guilty of the essential offences he had
been accused of (see, mutatis mutandis, Ommer v. Allemagne
(no. 1), no. 10597/03, § 75, 13 November 2008, and
Ommer v. Allemagne (no. 2), no. 26073/03, §§ 56-64,
13 November 2008). It takes note of the Government's submissions
according to which the legislative procedure to introduce a new
remedy is still under way.
- Accordingly,
the Court considers that the applicants did not have an effective
remedy within the meaning of Article 13 of the Convention which
could have expedited the proceedings or provided adequate redress for
delays that had already occurred.
- There
has therefore been a violation of Article 13 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 2,440,000 euros (EUR) in respect of pecuniary
damage on account of loss of profits – or, in the event that
only delays of at least one year and three months would be recognised
as exceeding the reasonable time requirement, the sum of EUR 590,000.
He submitted that due to the criminal proceedings he had no longer
been appointed by the Magdeburg District Court as liquidator on the
same regular basis. While by 1999 he had been appointed (on average)
in 41 insolvency proceedings per year, their number had amounted to
only eight in 2000 and 2001 and to only three in 2003; thereafter, he
had not been appointed at all. In support of his claims the applicant
submitted a list of his appointments between 1999 and 2008 by five
different courts. Without submitting further evidence, he also
declared that, on average, he made a profit of EUR 10,000 to EUR
20,000 per case. In respect of EUR 100,000 of the sum claimed, the
applicant submitted that, in 2006, his request with the Hannover
District Court to be put on the list of liquidators eligible for
singular proceedings was refused on account of the still pending
criminal proceedings.
- The
Government contested the damages claimed. In their view, they were
based on mere speculation and lacked the required substantiation and
proof. In support of their view, they presented different numbers as
regards the proceedings the applicant had been assigned to and
emphasised that he had not indicated the number of proceedings in
which he had been appointed again after his acquittal. They also
submitted that he failed to further substantiate the alleged gains in
the amount of EUR 10,000 to 20,000 per case, which, moreover, were
gains of the civil law association he belonged to. Finally, they
pointed out that, in view of the fact that the applicant never lodged
a claim against his non-appointment, as foreseen in section 23 of the
Introductory Act to the Judiciary Act, his claims for losses in any
event lacked the required causal link and submitted that the
applicant had filed a claim for public liability which was still
pending before the national courts.
- The
Court finds that, even assuming the applicant's figures concerning
his appointments by the Magdeburg District Court were correct, he
thereby did not demonstrate that he would have made the profits
claimed had the criminal proceedings been conducted more speedily.
The applicant failed to present to the court a comprehensive overview
of all his assignments before, during and after his criminal
proceedings and his respective profits – which might have
allowed it to assess the possible impact of the criminal proceedings
on his gains and the number of appointments by the Magdeburg District
Court. In any event, there are also other possible explanations for
the decrease. In this respect, the court also notes that, according
to the statistics submitted by the applicant, he had been appointed
by other courts during the relevant period. It also observes that,
under German law, there is no right to be (re-)appointed as
liquidator – the decision to entrust a liquidator with a case
rests with the national courts – and that the applicant never
challenged the decisions not to appoint him in a particular case.
Under these circumstances, the Court finds that the losses claimed by
the applicant indeed remain speculative. This also applies insofar as
he claimed EUR 100,000 on account of the fact that, in 2006, the
Hannover District Court refused to put him on the list of liquidators
eligible for singular cases as a causal link with the length of the
proceedings cannot be established. The Court therefore dismisses the
applicant's claims for pecuniary damage.
- The
applicant did not claim any compensation for non-pecuniary damage.
Accordingly, there is no call to award him any sum on that account
for the violations found.
B. Costs and expenses
- The
applicant, relying on documentary evidence, claimed a total of EUR
373,022.98 corresponding to the fees of the lawyers he appointed in
the proceedings before the domestic courts (this sum does not include
the costs in the amount of EUR 61,388.27 claimed by the applicant at
the national level). In addition, he claimed costs for legal
representation in the amount of EUR 6,165.84 incurred for the request
to stay the proceedings, of EUR 15,927.50 incurred for lodging the
constitutional complaint and of EUR 9,078.50 incurred in the
proceedings before this Court.
- The
Government contested these claims. With respect to the costs of the
proceedings in the domestic courts, they argued that there was no
causal link between the length of those proceedings and the costs
claimed, which, in any event, were excessive, given that they were
five to seven times as high as the costs to be accorded by law. As
regards the costs claimed for the constitutional complaint, they
pointed out that this was not an effective remedy and, in the present
case, moreover, had been clearly inadmissible.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the Court, having
regard to the material before it, considers that it is not in a
position to calculate the exact amount of additional costs accrued
because of the length of the proceedings only. However, seeing that
in length-of-proceedings cases the protracted examination of a case
beyond a “reasonable time” involves an increase in the
applicant's costs (see, among other authorities, Maurer v.
Austria, no. 50110/99, § 27, 17 January 2002;
Sürmeli v. Germany [GC], no. 75529/01, § 148),
the Court, having regard to the sums awarded in similar cases, awards
the applicant EUR 5,000 under this head, plus any tax that may be
chargeable. As regards the costs claimed for the request to stay the
proceedings, the Court considers it reasonable to award the sum of
EUR 2,000 plus any tax that may be chargeable. It dismisses the
applicant's claim for costs incurred for lodging a constitutional
complaint. As to the costs incurred in the proceedings before this
Court, the Court, having regard to its case-law and making its own
assessment, awards the applicant EUR 2,000, plus any tax that
may be chargeable.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 9,000 (nine thousand euros), plus any tax that may be chargeable
to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 25 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Karel Jungwiert
Deputy Registrar President
