ALFES v. GERMANY
Inadmissible
Peer Lorenzen
The applicant, Mr Jörg-Peter Alfes, is a German national who was born in 1947 and lives in Dresden. The applicant is a practising lawyer. Together with several other persons who were shareholders and managing director of a private limited company, the applicant learned in 1992 about the existence of several plots of land on the territory of the former German Democratic Republic (GDR) for which no restitution claim had yet been made. Pursuant to the Resolution of Outstanding Property Issues Act of 23 September 1990, whose aim was to resolve disputes over property in the territory of the GDR in a way that was socially acceptable, the deadline for the registration of such restitution claims was 31 December 1992. The applicant applied for restitution of the above plots of land without revealing that he did not have the authority of the persons who were entitled to restitution and whose names he did not know at the time. He later obtained such authority, predated the forms to a date prior to 31 December 1992 and intended to arrange the assignment of the restitution claim to the private limited company for a price that was considerably below the market value of the plots of land. The Public Prosecutor’s Office commenced investigations for fraud against the applicant in 1995 and filed the indictment on 3 December 1997. On 14 May 2001, the Dresden Regional Court convicted the applicant of abetting attempted fraud in four instances and sentenced him to a fine of 106.000 DEM. The main proceedings had been conducted during the period between 8 February 2001 and 14 May 2001 and concerned the applicant and five other accused persons; the judgment contained 192 pages. On the applicant’s appeal on points of law, the Federal Court of Justice on 9 July 2003 quashed the judgment of the Dresden Regional Court of 14 May 2001 and referred the case back to another division of the Dresden Regional Court. The Federal Court of Justice found that the Dresden Regional Court had not provided sufficient reasoning as to the accuseds’ intent with regard to the unlawfulness of the pecuniary benefit, an element of fraud under German law. Since the German administrative courts at the time had been divided over the issue whether or not the registration for restitution by a representative without authority could be retroactively authorised, the Dresden Regional Court had erroneously inferred from the predated authority forms that the applicant and his co-accused had had the requisite intent. The Federal Court of Justice referred the case back to the Dresden Regional Court in order to establish whether the applicant had acted with contingent intent. Lastly, it found that in case of a subsequent conviction, the Dresden Regional Court when sentencing would have to take into account fact that the proceedings against the applicant had lasted for a considerable time. The length of time would also have to be considered by the Dresden Regional Court in the context of Article 6 § 1 of the Convention. On 12 May 2004, the Dresden Regional Court, after having obtained the consent of the Public Prosecutor’s Office and the applicant, provisionally stayed the proceedings in accordance with section 153a § 2 read in conjunction with section 153a § 1 of the Code of Criminal Procedure (see Relevant domestic law, below) on condition that the applicant paid the amount of 10.000 € to the State treasury. The applicant paid the sum, and on 25 May 2004, the Dresden Regional Court formally discontinued the proceedings. Section 153a of the Code of Criminal Procedure governs the discontinuance of criminal proceedings after the fulfilment of certain conditions by the applicant. According to section 153a § 1 of the Code of Criminal Procedure, the Public Prosecutor’s Office may discontinue criminal proceedings if they concern an offence for which it is not mandatory to impose a sentence of at least one year’s imprisonment (Vergehen), if the defendant’s guilt would be of a minor nature and if the fulfilment of certain conditions or orders by the defendant is suitable to remove the public interest in criminal prosecution. Such conditions notably entail the payment of a sum of money to a non-profit-making organisation or to a treasury. The defendant must consent to discontinuation. Moreover, the court which has jurisdiction to open the main proceedings must also consent unless the case concerns offences which are not subject to an increased minimum penalty and the consequences ensuing from the offence were minor. After the filing of the indictment, the court which has jurisdiction may, according to section 153a § 2 of the Code of Criminal Procedure, decide to discontinue the proceedings under the conditions set out in section 153a § 1 with the consent of both the Public Prosecutor’s Office and the defendant. Once the proceedings have been discontinued, it is not longer open to the parties to take any further steps in the procedure unless the proceedings are resumed, which is only possible if the accused is charged with an offence for which it is mandatory to impose a sentence of at least one year’s imprisonment (Verbrechen).