NIEDERMEIER v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Jürgen Niedermeier, is a German national who was born in 1953 and lives in Nuremberg. He was represented before the Court by Mr P. Wollenschläger, a lawyer practising in Nuremberg. On 26 August 2002 the applicant was issued with a penal order (Strafbefehl) by the Nuremberg District Court on the ground that, in his capacity as managing director of a limited liability company, he had wilfully omitted to notify the company’s insolvency within the statutory time limit pursuant to sections 64(1) and 84(2) of the Code pertaining to companies with limited liability. He was sentenced to a fine of 75 euros per day for ninety days. Upon the applicant’s objection lodged with the assistance of his lawyer at the time, main proceedings were instituted before the District Court. A hearing was first scheduled for 10 November 2003 and then postponed to 22 June 2004. Even though the applicant was present, the hearing was not opened but discussions only took place between the judge, public prosecutor and the applicant’s counsel at the time. On 10 November 2004 the Nuremberg District Court provisionally stayed the proceedings on an application by the Public Prosecutor’s Office pursuant to Section 154(2) of the Code of Criminal Procedure with reference to separate preliminary proceedings instituted against the applicant on account of different criminal charges. The applicant’s objection against the decision to stay the proceedings was not accepted by the District Court. On 21 December 2004 the Nuremberg-Fürth Regional Court rejected an appeal by the applicant as inadmissible on the ground that the applicant had not been adversely affected by the District Court’s decision. The Regional Court found that a decision to provisionally stay proceedings pursuant to Section 154(2) of the Code of Criminal Procedure would only be to the detriment of the accused in the event his innocence was clearly established and he therefore would have a right to be acquitted. It held that these criteria had not been met in the instant case. On 7 April 2005 the Federal Constitutional Court (Az.: 2 BvR 301/05) declined to consider a constitutional complaint lodged by the applicant on the ground that the decision of the District Court to provisionally stay the proceedings did not constitute a legal detriment for the applicant and that there was no indication that the decision had been arbitrary. It further held that the applicant still benefited from the presumption of innocence and that in general there was no right to demand continuance of criminal proceedings with a view to being acquitted. The decision was served on the applicant’s counsel on 18 April 2005. Section 154(2) of the Code of Criminal Procedure provides for the provisional stay of criminal proceedings in the following terms: “... (2) Once proceedings have been instituted, the court may provisionally stay them at any stage at the request of the Public Prosecutor’s Office. ... (4) If the proceedings were provisionally terminated on account of a penalty or measure of reform and prevention which is to be expected for another offence, the proceedings may be resumed, unless barred by limitation in the meantime, within three months after the judgment imposed for the other offence has entered into force. (5) If the court has provisionally terminated the proceedings, a court order is required for their resumption.”