SCHMELZER v. GERMANY
Inadmissible
Antonio Pastor Ridruejo
The applicant is a German national, born in 1925 and living in Heidesheim (Germany). The respondent Government are represented by their Agent Mr K. Stoltenberg, Ministerialdirigent, of the Federal Ministry of Justice. On 31 January 1994 the Bingen District Court (Amtsgericht) convicted the applicant, a recidivist offender, of having driven a motor vehicle without a driving licence and, having regard to his preceding conviction of such offences, it fixed a global sentence of one year’s imprisonment. The execution of the sentence was suspended until 3 May 1998. The court further ordered that the applicant should not be issued a driving licence before 3 November 1995. The applicant’s appeal was dismissed by the Mainz Regional Court (Landgericht) on 14 November 1994. On 20 November 1994 the applicant left Heidesheim and moved to the Netherlands, where he officially took residence in Brummen. On 14 June 1995 he was issued a Dutch driving licence. On 1 July 1995 he moved back to Germany and took residence at his previous address in Heidesheim. On 16 March 1997 the applicant was stopped by the police when driving a car. Having only the Dutch driving licence, criminal proceedings were commenced against the applicant on the suspicion of having driven a motor vehicle without a valid driving licence. In these proceedings, he was assisted by defence counsel. By indictment of 30 June 1997, the Mainz Public Prosecutor’s Office (Staatsanwaltschaft) charged the applicant of having driven a motor vehicle without a valid driving licence. It further requested the competent Bingen District Court to seize the car in question as there were strong reasons to assume that it was liable to forfeiture and to consider the question of a resale (Notveräusserung). On 16 July 1997 the Bingen District Court issued a warrant to search the applicant’s premises and his cars and to seize the applicant’s car with the registration number MZ-E6605. The court found that there was a strong suspicion that on 16 March 1997 the applicant had driven this car without a valid driving licence. In this respect the court considered that, following his conviction of driving without licence in 1994, he should not have been issued a new one before November 1997. When stopped, he had shown a Dutch driving licence, passed in the Netherlands in June 1995. This licence was, according to the court, not valid in Germany as, at the relevant time, though not having been registered in Heidesheim between 20 November 1974 and 1 July 1975, he had in fact been living there. The car was to be seized as object used when committing the offence, liable to forfeiture on account of his recidivism. The measures were carried out on 17 July 1997. On 25 September 1997 the Public Prosecutor’s Office informed the applicant that, taking into account the costs of storage and the value of the car, its resale was envisaged. The applicant’s representative objected on 17 October 1997. On 2 December 1997 the Bingen District Court committed the applicant for trial. Subsequently, it ordered an opinion as to the value of the car. On 23 December 1997 the District Court ordered the sale of the seized car under section 111 lit. l (1) of the Code of Criminal Procedure (Strafprozessordnung), as the costs of storage by far exceeded its value. In this respect, the court had regard to the opinion of a technical expert according to which the remaining value was zero, whereas at the relevant time the costs amounted to more than 800 DEM and were increasing at a daily rate of DM 5. On 5 January 1998, upon the applicant’s objection, the District Court suspended the resale. On 13 January 1998 the Mainz Regional Court (Landgericht) dismissed the applicant’s appeal, confirming the District’s Court reasoning. It added that in assessing the value of the car, objective criteria were relevant and not the applicant’s subjective impression. On 6 February 1998 the trial opened before the Bingen District Court. Having heard the applicant, an expert and several witnesses, the competent judge proposed to adjourn the proceedings in order to conduct further investigations. The same day, a decision to stay the proceedings provisionally, pursuant to section 154 of the Code of Criminal Procedure, was issued. On 9 February 1998 the District Court ordered the seizure of the applicant’s bank statements to investigate whether he had stayed for a longer period in the Netherlands and issued checks there. The same day, the court ordered that the resale of the car be continued, as the suspicion against the applicant had not been dissipated at the hearing of 6 February 1998. The applicant’s assertion that he had repeatedly returned to Heidesheim in order to fetch his mail was not convincing. On 11 February 1998 the bailiff was instructed to proceed to the resale. Upon the applicant’s objection, the resale procedure was suspended pending the outcome of these proceedings. On 2 March 1998 the Mainz Regional Court dismissed the applicant’s appeal against the decision of 9 February 1998. The Regional Court confirmed the reasons advanced by the District Court. It also found that the resale could be continued irrespective of the provisional discontinuation of the trial. It considered that the reference to section 154 had been erroneous. Section 154 provided that, upon the prosecutor’s request, proceedings could be provisionally stayed where the penalty to be expected in the case of a conviction was almost negligible in comparison with a penalty for another offence. However, the Prosecutor’s Office had not made such a request. Rather, the correct interpretation of the decision at issue was that the District Court had adjourned the proceedings sine die for the purpose of further investigations, which it had ordered the same day. The car was sold on 20 March 1998 for 100 DEM, paid to the Justizkasse. On 27 March 1998 the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant's constitutional complaint (Verfassungsbeschwerde). On 18 May 1998, in the context of another set of criminal proceedings pending before the Mainz Regional Court, the applicant was sentenced to two years and six months’ imprisonment. He was found guilty of, inter alia, several offences in connection with having illegally run a dump for dangerous waste, offences under the Firearms Act and twelve counts of driving without licence, committed between November 1994 and April 1996. On 9 July 1998 the Mainz Public Prosecutor’s Office, referring to the applicant’s conviction of 18 May 1998, requested that the proceedings before the Bingen District Court be provisionally stayed pursuant to section 154 § 2 of the Code of Criminal Procedure. On 15 July 1998 the proceedings were provisionally stayed. In the meantime, on 21 April 1998, the Mainz-Bingen District Administrative Authority (Kreisverwaltung), having regard to the Dutch driving licence obtained in June 1995, issued the applicant a German driving licence. According to section 21(1) lit. 1 of the Road Traffic Act (Strassen-verkehrsgesetz), driving a motor vehicle without the requisite licence is a criminal offence punishable with imprisonment not exceeding one year or with a fine. In such cases, the motor vehicle to which the offence relates may be confiscated if the perpetrator drove the vehicle although, inter alia, his driving licence had been withdrawn (section 21(3)(1)). Driving a motor vehicle with a foreign driving licence is governed by section 4 of the Regulations on International Road Traffic (Verordnung über den internationalen Kraftfahrverkehr). According to its paragraph 1 lit. b, a person with a driving licence issued in a Member State of the European Communities is entitled to drive a motor vehicle in Germany if not permanently resident there. According to paragraph 2 lit. a are excepted from this general rule persons who had their permanent residence in Germany at the time when the foreign licence was issued. Persons have their permanent residence where they effectively live for a period of at least 185 days. Section 74 of the Code of Criminal Procedure, as in force at the material time, provided for the confiscation of objects generated by or used or intended for use in the commission of preparation of a criminal offence. Such confiscation was only permissible if, inter alia, the perpetrator owned the object in question (section 74(1) lit. 1). According to section 74b of the Code of Criminal Procedure, as in force at the material time, confiscation of an object under, inter alia, section 74(1) lit.1 should not be ordered if disproportionate to the importance of the offence in question. Confiscation may also be ordered in cases where, for factual reasons, no specific person can be prosecuted or convicted or where the court discontinues the proceedings under provisions granting the prosecutor’s office or the court discretion for doing so (section 76 a of the Code of Criminal Procedure). According to section 111 b, as in force at the material time, objects may be seized pursuant to section 111c, if there are compelling reasons to assume that the conditions for their forfeiture or confiscation are met. Section 111 c provides that the confiscation of movable assets is effected in taking them into public custody or indicating the seizure by seal or in some other way (section 111 c(1)); that objects so seized may be resold before a final judgment inter alia if the cost of storage is excessively expensive or difficult, the proceeds being substituted for the object in question (section 111 l (1)). Section 154 of the Code of Criminal Procedure provides that the public prosecutor may decide not to prosecute where the penalty to be expected if a conviction is secured is almost negligible in comparison with a penalty imposed on the defendant - or which he must expect to be imposed - for another offence (section 154(1)). Once the proceedings have been instituted, the court may provisionally stay them at any stage on an application by the public prosecutor (section 154(2)).