Ferdinand HOISCHEN v Germany - 22683/04 [2009] ECHR 371 (3 February 2009)

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The European Court of Human Rights (Fifth Section), sitting on
3 February 2009 as a Chamber composed of:

Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark Villiger,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

The applicant, Mr Ferdinand Hoischen, is a German national who was born in 1949 and lives in Lübeck.

The facts of the case, as submitted by the applicant, may be summarised as follows.

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 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.

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court observes that the applicant was arrested in Sweden on
29 March 2003 following the arrest warrant issued by the German authorities on 26 March 2003. He was extradited to Germany on
12 May 2003 and placed in custody. As the German authorities cannot be held responsible for the period of the applicant’s detention in Sweden
(see, inter alia, Kaszczyniec v. Poland, no. 59526/00, § 41, 22 May 2007), the starting point for calculating the applicant’s length of detention is
12 May 2003.

On 30 March 2006 the Dresden Regional Court pronounced its judgment. The overall length of the applicant’s detention was thus some two years and eleven months.

The Court notes that following the decision of the Federal Constitutional Court of 18 August 2004 the applicant did not lodge a constitutional complaint against the continuation of his detention ordered by the Regional Court on 22 September 2004 and on 8 March 2005 respectively.

The Court reiterates that under the terms of Article 35 § 1 of the Convention it can only deal with the matter after all domestic remedies have been exhausted. The purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had the opportunity to put matters right through their own legal systems (see Selmouni v. France [GC],
no. 25803/94, § 74, ECHR 1999-V, and Estrikh v. Latvia, no. 73819/01, § 92, 18 January 2007). Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law
(see Cardot v. France, judgment of 19 March 1991, Series A no. 200, 18,
§ 34).

Turning to the circumstances of the present case, the Court observes that Article 2 § 2 second sentence of the German Basic Law in conjunction with the Federal Constitutional Court’s established case-law
(see “Relevant domestic law and practice” above) subject the length of detention to strict judicial review with regard to its proportionality and the need to expedite the underlying criminal proceedings. In case of a violation of a detainee’s constitutional rights, the Constitutional Court has, amongst other elements, the power to order a detainee’s release by way of an
interim measure.

In view of the above, the Court considers that the Federal Constitutional Court could have effectively terminated the applicant’s detention in case of a violation of his constitutional rights. It follows that the constitutional complaint has to be regarded as an effective legal remedy against the continuation of the applicant’s detention. There is no indication that the applicant, who was a lawyer and who was represented by counsel throughout the proceedings, was in any way prevented from making use of this remedy.

It follows that the applicant failed to comply with his obligation to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention as regards the period of detention after the
Federal Constitutional Court’s decision of 18 August 2004.

The period covered by the requirement to exhaust domestic remedies therefore started on 12 May 2003 when the applicant was remanded in custody and ended on 18 August 2004 with the decision of the
Federal Constitutional Court. The relevant period of the applicant’s detention was therefore approximately one year and three months.

The Court reiterates that the reasonableness of the length of the detention must be assessed in each case according to the special features and on the basis of the reasons given in the domestic decisions and of the
well-documented facts mentioned by the applicant in his applications for release. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, Dzelili v. Germany, no. 65745/01, § 69, 10 November 2005).

The Court notes the national courts’ findings according to which there was a persistent strong suspicion that the applicant was guilty of numerous counts of fraud and that the continued detention was proportionate because of the serious nature of those crimes. Moreover, there were strong incentives for the applicant to abscond if released. In particular, he risked losing his licence to practise as a lawyer if convicted and he had good (financial and personal) connections to the United States and the
Caribbean states as well as an excellent command of English. Furthermore, under German law the proceedings would have had to be discontinued if
the suspect had been released and had failed to attend trial
(see “Relevant Domestic Law” above) with the consequent possibility that the offences would become statute-barred.

The Court further notes that the applicant was finally convicted of fraud on 119 counts and sentenced to seven years and ten months’ imprisonment. It therefore accepts the domestic courts’ findings that there were persistent plausible reasons to suspect that the applicant had committed the crimes charged for and that those crimes were of a serious nature.

As to the danger of the applicant’s absconding, the Court reiterates that the possibility of a severe sentence alone is not sufficient after a certain lapse of time to justify continued detention (see Dzelili, cited above, § 73). In the instant case, however, according to the national authorities the applicant’s detention was justified by the fact that the applicant had strong bonds to the U.S. and other Caribbean States, that he spoke English and that he had access to funds of several million US dollars abroad which would have made it easy for him to escape to those states in order to evade criminal proceedings in Germany and a possible conviction.

Therefore the Court is satisfied that the grounds given for the applicant’s detention were “relevant“ and “sufficient” to justify holding him in custody for the relevant period.

It remains to be ascertained whether the investigative authorities displayed “special diligence” in the conduct of the proceedings.

The Court takes the view that the underlying proceedings were of considerable complexity. They concerned serious charges of large-scale fraud against the applicant and two co-defendants, necessitated several inquiries by way of rogatory letters abroad and involved hearing many witnesses, some of whom had to be heard abroad. The complexity of the case was not least evidenced by the comprehensive reasons given both in the indictment (287 pages) and the judgment (211 pages) ordering the applicant’s conviction.

Having regard to authorities’ conduct of the proceedings, the Court firstly notes that no significant periods of inactivity occurred on the part of the prosecution authorities. Thus, the prosecution prepared the indictment within less than two months after the voluminous case file had been sent to it by the Saxony Office of Criminal Investigations on 25 May 2004. In the period following the applicant’s detention on 12 May 2003 the investigation authorities heard evidence from numerous witnesses, some of them abroad, and from the co-defendants. They examined a large number of documentary and other items of evidence. A significant amount of evidence was obtained abroad following time-consuming procedures involving legal assistance from several more states. Furthermore, the taking of evidence gave rise to a series of new findings which gave the authorities new leads for their enquiries. Thus, the investigations revealed new indications of the applicant’s participation in 6,554 further cases of fraud. For an indictment of these offences the authorities had to seek legal assistance from the Swedish Government, which inevitably prolonged the proceedings.

In addition, the Court observes that the length of the
applicant’s detention was examined carefully several times by the domestic courts which gave detailed reasons for their findings that the applicant’s right to expeditious proceedings had not been violated.

In the light of these various factors, notably the exceptional volume of the investigations and the extensive taking of evidence necessitated,
the Court is satisfied that the investigations were conducted with the necessary special diligence. It therefore concludes that the length of the applicant’s detention was not excessive within the meaning of Article 5 § 3 of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Ferdinand HOISCHEN v Germany - 22683/04 [2009] ECHR 371 (3 February 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/371.html Cite as: [2009] ECHR 371