CASE OF WETJEN v. GERMANY
Violation of Art. 6-1;Violation of Art. 13
Karel Jungwiert;Mark Villiger;Renate Jaeger
4. The applicant was born in 1951 and lives in Hildesheim. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. On 23 January 2001 two judges of the Magdeburg Regional Court indicated possible grounds for bias. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. In February 2003 the Magdeburg Public Prosecutor laid new charges with the Stendal Regional Court against the applicant and the judge. 21. 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. 22. 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. 23. 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. 24. 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. 25. 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. 26. 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. 27. 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. 28. 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. 29. 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. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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. 35. 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. 36. On 4 April 2007, following further submissions, the Halle Regional Court rejected the applicant's objection (Gegenvorstellung) against the refusal to stay the proceedings. 37. 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. 38. Between 25 October 2007 and 17 March 2008 15 hearings took place. More than 20 witnesses were heard and expert reports were obtained. 39. 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. 40. On 9 June 2008 the judgment became final, the Halle Public Prosecutor having withdrawn an appeal on points of law. 41. 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.