MINTKEN AND AYDIN v. GERMANY
Inadmissible
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
1. The applicant in the first case, Mr Markus Mintken, is a German national who was born in 1967 and lives in Mülheim/Ruhr. He was represented before the Court by Mr N. Noch, a lawyer practising in Duisburg. The applicant in the second case, Mr Oktay Aydin, is a Turkish national who was born in 1973 and lives in Bielefeld. He was represented before the Court by Mr E. Ceylan, a lawyer practising in Duisburg. 3. The applicants and another coaccused were involved in call centre businesses. They were arrested on 13 April 2010 and remained in detention until 27 October 2011 when their detention was suspended. On 6 August 2010 both applicants and the other accused were indicted on 47,713 counts of commercial fraud as members of a gang. The Essen Regional Court allowed the charges in a modified form and heard the applicants’ case over 116 days as from 4 October 2010, hearing over 40 witnesses and experts. During the trial, the first applicant filed 82 and the second applicant 24 requests concerning the taking of evidence. 4. In July 2011 the first applicant and his counsel requested the appointment of another counsel. However, the domestic courts dismissed the request and upheld the appointment of counsel for the first applicant. 5. On 18 July 2013 the applicants were convicted. The first applicant was sentenced to three years and nine months’ imprisonment; the second applicant received a five-year prison sentence. All three accused lodged an appeal on points of law. 6. The minutes of the hearing comprised over 3,521 pages. 7. On 12 February 2014 the judgment, which ran to more than 1,243 pages, including 1,019 pages specifying the details of the victims of the alleged fraud, was served on the defence. The Regional Court held that it had been impossible to speed up the proceedings as the three accused and counsel for the accused had made numerous applications, inter alia, 368 requests to hear additional evidence, including applications to call several thousand witnesses. More frequent hearings had not been possible because the court had been confronted on almost every single day of the trial by new applications from the defence requesting termination and adjournment of proceedings, rectification of the transcript, consideration of new documents or other objections to the court’s handling of the case. As a result, the Regional Court saw no unreasonable delay attributable to the court, and no reason to reduce the sentences on that ground. However, in the sentencing of the applicants it took into account, in their favour, that the proceedings had been long. 8. On 12 March 2014 counsel for the three accused submitted their joint grounds for appeal on points of law to the Federal Court of Justice, comprising 411 pages, thus observing the onemonth timelimit prescribed by Article 345 § 1 of the Code of Criminal Procedures (CCP) (Strafprozessordnung) (see domestic law, paragraph 12 below). Their submission included, among others, a complaint that the time to supply the reasons for their appeals on points of law was insufficient. 9. On 14 July 2014 the Federal Prosecutor General made observations on the first applicant’s appeal on points of law to which the first applicant responded on 6 August 2014. The relevant dates in the second applicant’s case were not submitted. 10. On 6 November 2014 the Federal Court of Justice dismissed the applicants’ appeals on points of law as far as conviction and sentencing were concerned, finding them manifestly illfounded without providing further reasons. 11. On 5 February 2015 and 18 February 2015 the Federal Constitutional Court declined to consider the applicants’ constitutional complaints without providing reasons (file nos. 2 BvR 3069/14 and 2 BvR 10/15). 12. The relevant provisions of the CCP concerning reinstatement of proceedings and appeals on points of law, as in force at the relevant time provided: “If a person was prevented from observing a timelimit through no fault of his own, he shall be granted a reinstatement of the proceedings upon application.” “(1) The complainant shall make a statement concerning the extent to which he contests the judgment and is applying for it to be quashed (notices of appeal on law) and shall specify the grounds. (2) The grounds must show whether the judgment is being contested because of violation of a legal norm concerning the proceedings or because of violation of another legal norm. In the former case the facts containing the defect must be indicated.” “Notices of appeal on points of law including the grounds for the appeal shall be submitted to the court whose judgment is being contested no later than one month after expiry of the timelimit for seeking the appellate remedy. If the judgment has not been served by expiry of that timelimit, the timelimit shall start to run upon service thereof.” “The notice of appeal on points of law including the grounds therefor shall be served on the complainant’s opponent if the appeal on points of law and the notices of appeal on points of law were submitted in time and in the prescribed form. The opponent may submit a written response within one week. ...” It is well-established case-law of the criminal courts that the timelimit pursuant to Article 345 § 1 CCP is nonextendable, with the exception of cases in which an admissible request to rectify the judgment is lodged before the end of the timelimit (compare judgment of the Federal Court of Justice of 14 November 1990, file no. 3 StR 310/90). 13. Section 198 of the Court Organisation Act (Gerichtsverfassungsgesetz) provides a remedy for unreasonably long proceedings and reads, as far as relevant, as follows: “(1) Whoever as the result of the unreasonable length of a set of court proceedings experiences a disadvantage as a participant in those proceedings shall be given reasonable compensation. The reasonableness of the length of proceedings shall be assessed in the light of the circumstances of the particular case concerned, in particular the complexity thereof, the importance of what was at stake in the case, and the conduct of the participants and of third persons therein. ... (3) A participant in proceedings shall obtain compensation only if he has complained about the length of the proceedings to the court seized of the case (censure of delay). ... (5) A court action to enforce a claim under subsection (1) can be brought at the earliest six months after the filing of the censure of delay. The court action must be brought no later than six months following entry into final and binding force of the decision ending the proceedings, or following another manner of disposal of the proceedings. ...” Section 199 § 3, second sentence, of the Court Organisation Act, however, limits the leeway for the compensation court regarding unreasonably long criminal proceedings and reads, as far as relevant, as follows: “(3) ... Where the accused in criminal proceedings seeks compensation for excessive length of proceedings, the court of compensation shall be bound, in respect of the assessment of the reasonableness of the length of the proceedings, by a decision given by the criminal court.” 14. On 19 February 1998 the Federal Constitutional Court, in the case of an accused who had unsuccessfully requested the extension of the timelimit under Article 345 § 1 CCP, decided by a panel of three judges not to accept the constitutional complaint for adjudication (file no. 2 BvR 1888/97). It held that, in general, the statutory onemonth timelimit laid down in Article 345 § 1 of the CCP allowed ample time to supply the reasons for an appeal on points of law, even in difficult cases involving economic offences or Nazi crimes. The complainant in that case had not substantiated why, in his individual case, the time available had not been sufficient. The Federal Constitutional Court further found that the complainant had not sufficiently discussed in his complaint whether, in a case in which the reasons for the appeal cannot be drawn up within the statutory timelimit for reasons not attributable to the accused, redress might be found under the provisions governing the reinstatement of proceedings (see Article 44 CCP, paragraph 12 above).