HOISCHEN v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Ferdinand Hoischen, is a German national who was born in 1949 and lives in Lübeck. On 26 March 2003 the Dresden District Court issued a warrant of arrest against the applicant, as he was suspected of having obtained with two co-suspected 82 million United States dollars (USD) from more than 6,000 investors. Referring to the evidence obtained during the investigations, the District Court found that the applicant was strongly suspected of 202 counts of fraud and of 50 counts of breach of trust. Furthermore, it found that the applicant had fled to or was hiding in Sweden within the meaning of section 112 § 2 no. 1 of the Code of Civil Procedure (see “Relevant domestic law” below). On the basis of that warrant, the applicant was arrested in his habitual residence in Sweden on 29 March 2003. On 12 May 2003 he was extradited to Germany and remanded in custody. On 13 May 2003 the German authorities presented the arrest warrant of 26 March 2003 to the applicant. On 5 November 2003 the Dresden District Court issued a new arrest warrant adapted to the recent results of the investigations charging the applicant with, inter alia, 6,554 counts of fraud. That arrest warrant was not executed. It was issued with a view to gaining the approval of the Swedish Government for the applicant’s extradition in respect of further charges against him which had not been the object of the initial warrant of 26 March 2003. Accordingly, on 11 November 2003 the Saxony Ministry of Justice requested the Swedish Government to approve the applicant’s extradition also concerning the further charges specified in the arrest warrant of 5 November 2003. On 10 November 2003 the applicant’s case files were sent to the Dresden Court of Appeal with a view to seeking a decision on an extension of the applicant’s detention. On 26 November 2003 the Dresden Court of Appeal upheld the arrest warrant of 26 March 2003. Based on the investigations and in particular on documentary evidence and on evidence given by the co-suspected and several witnesses, the court held that the applicant was under strong suspicion of having committed fraud in numerous cases. It found that there was now a risk of the applicant’s absconding within the meaning of section 112 § 2 no. 2 of the Code of Civil Procedure (see “Relevant domestic law” below). In particular, he was charged with serious offences and risked not only incurring a lengthy prison sentence but also losing his licence to practise as a lawyer. Furthermore there was a strong incentive to abscond as he had good connections with the United States and Caribbean states and an excellent command of English. The court also pointed out that the detention had been proportionate, as the instant proceedings, which concerned large-scale fraud, were extraordinarily complex. Given the constant new findings of the investigation authorities it was necessary to investigate a further 6,554 cases of possible fraud. Thus, the investigations required, amongst other elements, the hearing of numerous witnesses, who were in fact heard without any delays. It was also necessary to evaluate the computers, CD-ROMs, discs and numerous other documents seized in Sweden, Switzerland and the Caribbean. Furthermore, the investigation authorities had requested the authorities of several states for legal assistance to obtain further documents. One of those very time-consuming procedures was still pending. On 2 March 2004 the Dresden Court of Appeal remanded the applicant in custody for a further period, holding that the strong suspicion and a risk that he would abscond persisted. His very good command of English and his close connections with the USA and the Caribbean provided him with the realistic opportunity to move to one of these countries with his family and to evade the proceedings. Furthermore the possible consequences for the exercise of his profession gave a strong incitement to abscond which could not be countered by any alternative measures such as conditions or guarantees. It also pointed out that the proceedings had been conducted with the required diligence, given that since 26 November 2003 numerous witnesses had had to be identified and heard (also abroad), that the Swedish State had been asked for legal assistance on 11 November 2003, that on 14 November 2003 the investigating authorities had received a report concerning data seized on the Caribbean island of St. Vincent and that the co-suspected had had to be reheard several times. On 2 April 2004 the applicant lodged a constitutional complaint against the Court of Appeal’s decision with the Saxony Constitutional Court. On 22 April 2004 the Constitutional Court rejected the applicant’s constitutional complaint as being unfounded. It confirmed the Court of Appeal’s findings that the applicant’s bonds with non-European countries and the legal consequences of his conviction had been sufficient to justify the risk of his absconding. Furthermore the Court of Appeal did not violate the applicant’s right to expeditious proceedings as guaranteed by Article 16 § 1 of the Constitution of the Free State of Saxony (see “Relevant domestic law” below). The Court of Appeal had convincingly held that the investigations had been extraordinarily complex given the existence of 30 files with more than 12,000 pages and 46 files of related files and the necessity to ask several states for legal assistance. On 25 May 2004 the Saxony Office of Criminal Investigations (Landeskriminalamt) submitted its final report as to the investigations. On 9 June 2004 the Dresden Court of Appeal upheld the arrest warrant. Referring to the reasons stated in its previous decisions and taking account of the new evidence obtained, it held that the applicant was still strongly suspected of numerous counts of fraud. In view of his personal contacts to the U.S. and the Caribbean and given that it was very likely that he had further funds of several million US dollars, the danger of his absconding persisted. It also found that the exceptional circumstances in the instant case warranted a further extension of the applicant’s detention given in particular the extraordinary complexity of the investigations, the high number of aggrieved parties and the extensive evidence seized. It further observed that since 2 March 2004 the investigating authorities had received substantial documentary evidence in English, translations of which had been prepared between March and May 2004. Furthermore the authorities commissioned a further expert report on data received in March 2004, heard numerous further witnesses and reheard both co-suspects. The evidence obtained gave constantly new leads for enquiries. Therefore it was impossible to speed up the taking of evidence. For the same reasons the employment of further staff could not have contributed to a faster termination of the investigations. In these circumstances the authorities had complied with the obligation to conduct the proceedings speedily. Finally, it pointed out that following the submission of the final report of the Office of Criminal Investigations, the prosecution would now proceed with the elaboration of the indictment concerning the charges covered by the first extradition request as there had still been no reaction from the Swedish Government concerning the request for legal assistance. On 13 July 2004 the applicant lodged a constitutional complaint with the Saxony Constitutional Court complaining that the continuation of his detention was disproportionate, that the arrest warrant of 26 March 2003 was based on wrong information and that he had been discriminated against on grounds of his domicile in Sweden when compared to the co-defendants. On 15 July 2004 the Dresden Public Prosecutor’s Office severed the investigations in so far as they were not covered by the arrest warrant of 26 March 2003. In so far as they were covered by the warrant, the prosecution filed a bill of indictment with the Dresden Regional Court. The applicant was charged with 116 counts of fraud. The reasons for the applicant’s indictment were set out on 287 pages. On 10 August 2004 the Saxony Constitutional Court rejected the applicant’s constitutional complaint. As to the alleged discrimination, it declared the complaint inadmissible as the applicant had failed to substantiate his allegation. As to the lawfulness of the applicant’s detention, the court found that the Court of Appeal had convincingly held already, on 2 March 2004, that the applicant had been strongly suspected of numerous counts of fraud. Furthermore, the latter court comprehensively argued that the special conditions for continued detention as required by section 121 § 1 of the Code of Criminal Procedure (see “Relevant domestic law” below) had been fulfilled. In this connection, it was unobjectionable that the Court of Appeal had referred to the extraordinary complexity of the case, the high number of victims involved and the amount of documents to be examined. Furthermore, after 2 March 2004 a substantial number of new evidence had to be taken. Finally, the Constitutional Court was bound by the findings of the Court of Appeal that it had been impossible to time the taking of evidence in a more concentrated way and that the investigations could not have been finished earlier if more staff members had dealt with the applicant’s case. On 18 August 2004 the Federal Constitutional Court, without stating further reasons, refused to admit the applicant’s constitutional complaint about the length of his detention. On 6 September 2004 the Dresden Regional Court replaced the arrest warrant of 26 March 2003 with a new warrant, which took into account the recent results of investigations. Referring to the evidence obtained during the investigation it found that the applicant was strongly suspected of 161 counts of fraud. Under the given circumstances and with regard to the heavy sentence which might be imposed, there was a persistent risk that he would abscond. Furthermore, it decided to open the trial against the applicant and other persons. On 22 September 2004 the Dresden Court of Appeal again ordered the applicant’s continued detention. On 23 February 2005 the applicant lodged a request for review of his detention order (Haftprüfung) (see “Relevant domestic law” below), with the Dresden Regional Court. On 8 March 2005 the Regional Court upheld the arrest warrant, arguing that the strong suspicion and the risk of the applicant’s absconding would persist. On 30 March 2005 the Dresden Court of Appeal dismissed the applicant’s appeal, and on 11 April 2005 it rejected his objection (Gegenvorstellung). Between 4 November 2004 and 30 March 2006 the Dresden Regional Court held eighty-nine hearings, during which the applicant, represented by two counsel, lodged numerous requests to obtain further evidence. With fifty-four decisions altogether the Regional Court rejected these requests as being irrelevant or unnecessary. On 30 March 2006 the Dresden Regional Court convicted the applicant of 119 offences of fraud and sentenced him to seven years and ten months’ imprisonment. The Regional Court set out the reasons for the applicant’s conviction on 211 pages. In establishing the relevant facts, the Regional Court had regard to documentary evidence, to the confessions of the two co-accused, the statements of numerous other witnesses and the applicant’s own statements. The court considered the length of the applicant’s pre-trial detention a mitigating factor. On 24 May 2007 the Federal Court of Justice dismissed an appeal by the applicant on points of law. On 30 June 2007 the applicant lodged a constitutional complaint with the Federal Constitutional Court in which he complained about the refusal of his numerous requests to obtain further evidence. On 14 August 2007 the Federal Constitutional Court refused to admit his constitutional complaint without giving any further reasons. Article 2 § 2 of the German Basic Law (Grundgesetz) and Article 16 § 1 of the Constitution of the Free State of Saxony provide as follows: “Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.” According to the German Federal Constitutional Court’s well-established case-law, pre-trial detention is only permissible under exceptional circumstances, having special regard to the presumption of innocence. The domestic authorities constantly have to weigh the public interest in criminal prosecution against the individual’s right to liberty. The length of the detention has to be proportionate to the likely penalty, if the individual is convicted. Furthermore, the prosecution authorities and criminal courts are required to expedite proceedings by taking all feasible steps swiftly to terminate the investigations and to reach a judicial decision. In case of an avoidable delay in the criminal proceedings, continued pre-trial detention can generally not be justified (see, most recently, the decision of the Second Chamber of the Second Senate dated 11 June 2008, no. 2 BvR 806/08, with further references). Article 2 § 1 of the German Basic Law (and Article 16 § 1 of the Constitution of the Free State of Saxony) in conjunction with the principle of the rule of law guarantees the right to expeditious proceedings. According to the settled case-law of the Federal Court of Justice (see, decision of 21 July 1994, no. 1 StR 396/94, decision of 26 June 1996, no. 3 StR 199/95) and of the Federal Constitutional Court (see, among others, decision of 24 December 1983, no. 2 BvR 121/83, and decision of 19 April 1993, no. 2 BvR 1487/90), the consequence of the excessive length of criminal proceedings must be either a reduction of the sentence or even the discontinuation of the proceedings. Pursuant to recent decisions of the Federal Constitutional Court, that principle applies to the criminal courts as well as to the Public Prosecutor’s Office (see decision of 25 July 2003, no. 153/03, Reports of Chamber Decisions (BVerfGK) no. 1, pp. 269 et seq.; decision of 21 January 2004, no. 2 BvR 1471/03, Reports of Chamber Decisions (BVerfGK) no. 2, pp. 239 et seq.; and decision of 21 June 2006, nos. 2 BvR 750/06, 752/06 and 761/06). Sections 112 et seq. of the Code of Criminal Procedure (Strafprozessordnung) concern detention during judicial proceedings. Pursuant to section 112 § 1 of the Code, a defendant may be detained during judicial proceedings if there is a strong suspicion that he has committed a criminal offence and if there are grounds for arresting him. Grounds for arrest will exist where certain facts warrant the conclusion that the suspect has fled or is hiding (section 112 § 2 no. 1) or that there is a risk of his absconding (section 112 § 2 no. 2). Section 121 § 1 of the Code provides that as long as a judgment imposing a prison sentence has not been given, detention pending trial for the same offence shall only be executed for a period exceeding six months if the particular difficulty or the unusual extent of the investigations or a different important reason do not yet permit pronouncement of the judgment and justify continued detention. Under section 117 § 1 of the Code, remand prisoners may ask at any time for judicial review (Haftprüfung) of the decision to issue an arrest warrant or for the warrant to be suspended. The calculation of the six-month period does not include any period of detention served abroad with a view to the detainee’s extradition. According to section 121 § 3 of the Code the running of the six-month period is suspended as soon as the files are lodged with the Court of Appeal. According to section 205 of the Code, the trial court may, by order, provisionally terminate the proceedings if the absence of the indicted accused or other personal impediment would prevent the holding of the main hearing for a considerable time. That provision must be seen in connection with section 230 § 1 of the Code according to which no trial shall be held in respect of an absent person.