BERGER v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Joachim Berger, is a German national who was born in 1956 and lives in Singen. He is represented before the Court by Mr O. Berg, a lawyer practising in Strasbourg. The respondent Government are represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. In March 1996 the applicant was first questioned by the police on suspicion of three counts of abetting economic subsidy fraud. The indictment was issued on 15 September 1999. On 16 May 2002 the Mühlhausen Regional Court opened the main proceedings. On 6 June 2005 the Mühlhausen Regional Court informed the applicant that it intended to terminate the proceedings in accordance with Article 206a of the Code of Criminal Procedure as it considered that the length of proceedings precluded their continuation (see “Relevant domestic law” below). On 12 June 2005 the applicant gave his consent to that discontinuation. On 16 June 2005 the prosecutor’s office submitted that it would contest such termination of the proceedings. However, it suggested discontinuing the proceedings in accordance with Article 153 of the Code of Criminal Procedure (see “Relevant domestic law” below). On 23 June 2005 the Regional Court discontinued the proceedings in accordance with Article 153 of the Code of Criminal Procedure after the applicant’s lawyer had agreed to the proposed termination of the proceedings on the same day. On the same day the sitting judge of the Regional Court instructed the court’s registry to formally serve the discontinuation order on the applicant’s defence counsel and to informally transmit a copy of that decision to the applicant together with other documents, such as the submissions of the Public Prosecutor’s Office of 16 June 2005. On 24 June 2005 the applicant’s defence counsel acknowledged receipt of the court’s decision of 23 June 2005. On an unspecified date the applicant received the Regional Court’s letter of 23 June 2005; however, it is disputed between the parties whether that letter contained the court’s decision to discontinue the proceedings. Between 24 June 2005 and 27 July 2005 the applicant addressed further letters to the Regional Court requesting the court to comply with its obligation to proceed speedily. On 12 November 2007 the Court requested that the applicant provide information as to whether the proceedings had been discontinued in the meantime. On 26 November 2007 the applicant replied that he had not received any information about the discontinuation of the proceedings and that he did not know whether a discontinuation was imminent or intended. Therefore, on 22 January 2008 the Court decided to communicate the application to the respondent Government concerning the length of the proceedings. Under Article 206a of the Code of Criminal Procedure, the court may terminate the proceedings by an order made outside the main hearing should a procedural impediment arise after the main proceedings have started. Thus the length of proceedings may preclude their continuation if, in exceptional circumstances, redress for the length of proceedings cannot be granted in a decision on the merits. Article 153 of the Code of Criminal Procedure governs the discontinuation of criminal proceedings on the ground of insignificance. During the investigation proceedings the Public Prosecutor’s Office may discontinue the criminal proceedings if they concern an offence that does not carry a sentence of at least one year’s imprisonment (Vergehen), if the defendant’s guilt is of a minor nature and if there is no public interest in criminal prosecution. The court which has jurisdiction to open the main proceedings must consent to discontinuing the proceedings unless they concern offences which are not subject to an increased minimum penalty and the consequences ensuing from the offence were minor (Article 153 § 1). If the indictment has already been preferred with the court the latter may discontinue the proceedings at any stage under the conditions set out in Article 153 § 1 with the consent of both the public prosecutor’s office and the defendant (Article 153 § 2).