Heinz-Peter BAUER v Germany - 29035/06 [2010] ECHR 1189 (29 June 2010)

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The European Court of Human Rights (Fifth Section), sitting on
29 June 2010 as a Chamber composed of:

Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Ganna Yudkivska, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant, Mr Heinz-Peter Bauer, is a German national who was born in 1953 and lives in Herzlake. He is represented before the Court by Mr M. Kleine-Cosack, a lawyer practising in Freiburg. The German Government (“the Government”) are represented by their Agent,
Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

The applicant had been practising as a lawyer since 1982 and as a notary since 1986.

On 14 May 2001 the President of the Oldenburg Court of Appeal (Oberlandesgericht) opened formal disciplinary proceedings against him on suspicion of official misconduct involving a large number of failures to honour his notarial duties between January 1997 and April 1999.

Consequently, on 3 July 2001 the President of the Oldenburg Court of Appeal provisionally removed the applicant from the office of notary. Given the nature and seriousness of the alleged misconduct, the President considered that there was a risk that the interests of individuals in need of legal advice would be adversely affected if the applicant continued to pursue his notarial activities. On 6 August 2001 the applicant challenged that decision before the Celle Court of Appeal. On 1 November 2001 that court confirmed his provisional removal from office. On 18 March 2002 the Federal Court of Justice (Bundesgerichtshof) dismissed the applicant's appeal against this decision.

Between 12 September 2001 and 20 November 2002 the President of the Oldenburg Court of Appeal heard twenty-five witnesses.
On 20 November 2002 the applicant was informed that the taking of evidence was terminated and granted a four-weeks' time-limit to submit comments, which was later extended on the applicant's request until
20 January 2003. On 3 February 2003 the report on the preliminary investigations was finalised.

On 18 March 2003 the President of the Oldenburg Court of Appeal finalised the charges and accused the applicant of two hundred thirty four violations of his professional duties, inter alia, of falsely certifying contracts, of creating an appearance of partiality and dependence in certifying a great number of contracts and of assisting in activities with clearly dishonest aims.

On 19 May 2003 the applicant suggested that the disciplinary proceedings be suspended pending criminal investigations.

On 22 May 2003 the President of the Oldenburg Court of Appeal requested the court to decline to suspend the proceedings.

On 24 June 2003 the Celle Court of Appeal stayed the disciplinary proceedings in accordance with Article 17 § 2 of the Lower Saxony Disciplinary Code (see “Relevant domestic law” below) with respect to the then ongoing criminal proceedings concerning the same facts.

In criminal proceedings, on 12 December 2003, the prosecution filed the bill of indictment with the Lübeck District Court (Amtsgericht).

On 11 April 2005 the President of the Oldenburg Court of Appeal requested the Celle Court of Appeal to resume the disciplinary proceedings, arguing that the applicant's ongoing provisional removal from office since
3 July 2001 could infringe the principle of proportionality.

On 12 May 2005 the applicant requested the Celle Court of Appeal to annul its decision regarding his provisional removal from office. He further requested the court not to resume the suspended proceedings.

On 19 May 2005 the Celle Court of Appeal rejected the President's request to resume the proceedings.

On 6 June 2005 the Celle Court of Appeal found for the applicant. It held that, in view of the length of the proceedings (three years and eleven months so far) and the unlikelihood that permanent removal from office would be imposed as a disciplinary penalty, the ongoing provisional removal from office was disproportionate.

On 8 August 2005 the Lübeck District Court convicted the applicant of two counts of abetment to fraud and imposed a fine of 25 euros (EUR) per day for 220 days, taking into account as a mitigating factor that the applicant had lost his office as a notary and hence his source of income.

The applicant continued to practise as a notary until 20 March 2006 when the Federal Court of Justice quashed the Court of Appeal's decision of 6 June 2005. The Federal Court of Justice found that the disciplinary proceedings had not been protracted. The fact that the proceedings came to a standstill on 24 June 2003 had been the result of the Court of Appeal's obligation under Article 17 § 2 of the Lower Saxony Disciplinary Code to suspend the disciplinary proceedings while the criminal proceedings were pending. Even taking into account the considerable duration of the still pending criminal proceedings, the Court of Appeal's refusal to resume the suspended disciplinary proceedings did not yet overstep that court's margin of appreciation. The duration of the proceedings, which had been pending for more than four years and eight months, did not justify as such the conclusion that the continuation of the provisional removal was disproportionate. Given the gravity of his alleged misconduct and the great number of accusations, the applicant's conduct had severely endangered the sound administration of justice. The applicant, who had admitted the facts, continued to maintain that his behaviour had been compatible with his notarial duties. Therefore, it could not be ruled out that he would continue to breach his duties if he was allowed to pursue his official functions as a notary. Finally, the court considered that it was very likely that the disciplinary proceedings would end with the applicant's permanent removal from office.

By way of a separate decision, also issued on 20 March 2006, the Federal Court of Justice rejected the President of the Court of Appeal's complaint against the refusal to resume the disciplinary proceedings as inadmissible. The court considered, however, that the length of the proceedings obliged the Court of Appeal to observe special diligence. It considered that the disciplinary proceedings had to be resumed without awaiting the outcome of the criminal proceedings if the latter proceedings on the applicant's appeal were not terminated by the end of May 2006.

On 22 May 2006 the Federal Constitutional Court (Bundesverfassungsgericht) refused to admit the applicant's constitutional complaint against the Federal Court of Justice's decision on his provisional removal from office as there had been no appearance of a violation of the applicant's fundamental rights.

On 30 June 2006 the Celle Court of Appeal ordered the continuation of the disciplinary proceedings.

On 9 July 2007 following a hearing, the Celle Court of Appeal decided to permanently remove the applicant from office as he had been found guilty of misconduct, partly through negligence and partly intentional, which involved numerous failures to comply with his professional obligations between January 1997 and January 2000.

The reasoned judgment with a volume of 153 pages was submitted to the court's registry on 26 July 2007.

On 25 September 2007 the Lübeck Regional Court (Landgericht), in the criminal proceedings, upon the applicant's appeal, modified the criminal sentence imposed by the Lübeck District Court, and issued a formal admonishment (Verwarnung) to the applicant while reserving its right to impose a fine. The court considered as mitigating factors that the delays in the criminal proceedings – even taking into account the thorough examination of the facts and the necessity to hear extensive evidence in the first instance proceedings – fell within the judiciary's responsibility.

On 16 September 2008 the applicant, in order to avoid losing his license to practice as a lawyer, filed a request that he be permanently removed from notary office; the request was granted on 31 December 2008.

Therefore, on 23 March 2009 the Federal Court of Justice discontinued the proceedings in accordance with Articles 64, 76 and 85 of the Federal Disciplinary Code as in force at the material time (see “Relevant domestic law” below).

Section 96 of the Federal Notaries Act in conjunction with Article 17 § 2 of the Lower Saxony Disciplinary Code provides that if criminal proceedings are brought against a notary, disciplinary proceedings instituted on account of the same facts shall be suspended until such time as the criminal proceedings have been concluded. The factual finding of a final judgment in criminal proceedings is binding on the disciplinary panel (Article 18 § 2).

Section 96 of the Federal Notaries Act in conjunction with Article 91 of the Lower Saxony Disciplinary Code provides that the authority which institutes disciplinary proceedings against a notary can provisionally remove the latter from office as soon as formal disciplinary proceedings are opened.

According to section 108 of the Federal Notaries Act in conjunction with Articles 64, 76 and 85 of the Federal Disciplinary Code, as in force at the material time, the Federal Court of Justice discontinues the disciplinary proceedings if the notary has resigned or has been dismissed.

Relying on Article 1 of Protocol No. 1 in conjunction with Article 6 § 1 of the Convention, the applicant complained that his provisional removal from office violated his property rights, given in particular that the disciplinary proceedings and his removal from office lasted an unreasonably long time.

He further complained under Article 1 of Protocol no. 1 that the domestic courts had wrongly assumed that there was a risk that he would continue to breach his duties if allowed to practice as a notary.

The applicant complained about his provisional removal from his office as a notary. He relied on Article 1 of Protocol no. 1 in conjunction with Article 6 § 1 of the Convention, which, insofar as relevant, read as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

The applicant complained, in particular, about the Federal Court of Justice's decision of 20 March 2006 confirming his provisional removal from office. According to the applicant, his continued removal from office was disproportionate having particular regard to the excessive length of the disciplinary proceedings.

According to the Court's constant case-law, any negative repercussions on an applicant's property right caused by the excessive length of proceedings may be analysed exclusively as a consequence of a violation of Article 6 § 1 of the Convention and taken into account for the award of just satisfaction in case of a violation of that Article (see, among other authorities, Dumas v. France (dec.), no. 53425/99, 30 April 2002; Capestrani v. Italy (dec.), no. 46617/99, 27 January 2005 and Bekiari and Others v. Greece, no. 28264/07, § 12, 2 April 2009).

It follows that this complaint falls to be examined under Article 6 § 1 of the Convention, taken on its own.

The Court observes that the proceedings, insofar as relevant for the instant complaint, began on 3 July 2001, when the President of the Oldenbourg Court of Appeal ordered the applicant's provisional removal from notary office and ended on 6 June 2005, when the Celle Court of Appeal lifted the provisional removal from office. A second period of time during which the applicant was prevented from practicing as a notary began on 20 March 2006, when the Federal Court of Justice quashed the decision given by the Celle Court of Appeal and ended on 22 May 2006 when the Federal Constitutional Court refused to admit the applicant's complaint. As regards the further period of time which elapsed until the termination of the disciplinary proceedings in March 2009, the Court notes that this period of time could not be relevant for the proceedings on the applicant's request to lift his provisional removal from office, which was terminated in May 2006. The proceedings, insofar as relevant, therefore lasted approximately five years.

According to the Government, the conduct of the State authorities did not exhibit a violation of the “reasonable time” requirement within the meaning of Article 6 § 1 of the Convention. The disciplinary proceedings dealt with extensive and both factually and legally complex material. As regarded the applicant's provisional removal from office, the Government considered that Article 6 was inapplicable because this was a temporary measure which did not anticipate a final decision. In any event, the length of these proceedings had not been excessive.

Following submissions of the written complaint, the formal disciplinary proceedings needed to be suspended for the period between June 2003 and June 2006 due to the parallel criminal proceedings against the applicant. This suspension was mandatory and did not leave any discretion to the disciplinary court. Lastly, the criminal proceedings, which were determinative for the suspension of the disciplinary proceedings, were concluded in an appropriate period of time, taking into account the scope of the issue and the difficulties involved.

The Government further pointed out that it had been the applicant who expressly encouraged the suspension of the proceedings and continued to speak against their continuation in the further course of the proceedings. While his provisional removal from office imposed a burden on the applicant, it had to be taken into account that a notarial administrator had been appointed and that the applicant was allowed to continue to appear as a lawyer and notary.

According to the applicant, the length of the disciplinary proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. Neither from a factual nor a legal point of view the subject matter could be considered as extensive and complex.
The authorities and responsible departments had simply been inactive over long periods of time. The number of the charges brought out against him and the extent of the allegation paper could not justify the length of the proceedings, as the allegations included false charges or those which were later found to be inapplicable. Of the originally two hundred thirty four individual cases the applicant was charged of, ultimately twenty six cases remained.

The applicant further considered that he could not be held accountable for the length of the proceedings, as the authorities were obliged to expedite the proceedings notwithstanding his own motions, in particular in proceedings where the provisional removal from office was ordered.
He further alleged that the length of the criminal proceedings had been excessive and that it would have been possible to resume the disciplinary proceedings before the termination of the criminal proceedings.

The applicant further pointed out that during his provisional removal from office he suffered a complete loss of income from the occupation as a notary, which was fully claimed by the notary administrator, while remaining obliged to pay insurance fees and contribute to the notary's association.

The applicant lastly considered that the length of the proceedings was owed to the fact that the disciplinary proceedings for notaries were organised in an excessively complex and inefficient way.

The Court does not find it necessary to determine whether Article 6 § 1 is applicable on the disciplinary proceedings carried out against the applicant, as, in any event, the complaint has to be declared inadmissible for the following reasons:

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender
v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

The Court considers that the present proceedings were of a considerable legal and factual complexity, as is demonstrated by the number of individual cases (two hundred thirty four) the applicant was charged of and by the extent of the case-files to be examined by the disciplinary authorities and by the courts. The fact that the applicant was, in the end, only sentenced based on a smaller amount of offences does not call in question the overall complexity of the subject matter.

As to the applicant's own conduct, the Court observes that the applicant, on 19 May 2003, requested the Celle Court of Appeal to suspend the proceedings with regard to the criminal investigations and, on 12 May 2005, opposed the President of the Oldenbourg Court of Appeal's motion to resume the proceedings. The proceedings were resumed on the
30 June 2006. It follows that the disciplinary proceedings had been suspended for three years and one month. The Court further observes that the applicant, on several occasions, requested the extension of time-limits to submit his observations.

With regard to the conduct of the national courts, the Court underlines that it may be reasonable for them to await the outcome of parallel proceedings as a measure of procedural efficiency as long as this decision is proportionate having regard to the special circumstances of the case (see, inter alia, Kirsten v. Germany, no. 19124/02, § 42, 15 February 2007).
In the present case, having regard to the applicant's own stance on this issue during the disciplinary proceedings and to the fact that the factual finding of a criminal judgment is binding on the disciplinary authorities, the Court accepts that the suspension may be regarded as justified by considerations of procedural efficiency. As regards the remainder of the relevant time, which amounted to approximately two years, the Court does not find that the domestic authorities failed adequately to expedite the proceedings, taking into account the complexity of the subject matter and the extent of material to be examined.

Having regard to these considerations, the Court, while fully appreciating that the length of the disciplinary proceedings, even taking into account the fact that the applicant was allowed to continue practicing as a notary between 6 May 2005 and 20 March 2006, imposed a heavy burden on the applicant, does not consider that the length of the proceedings were in breach of the “reasonable time” requirement within the meaning of
Article 6 § 1.

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.

Relying on Article 1 of Protocol no. 1, the applicant further complained that the domestic courts, when ordering his provisional removal from office, had wrongly assumed that there was a risk of his re-offending if allowed to practice as a notary.

However, 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 also this part of the application is 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 >> Heinz-Peter BAUER v Germany - 29035/06 [2010] ECHR 1189 (29 June 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/1189.html Cite as: [2010] ECHR 1189