Holger Hajo OTTO v Germany - 21425/06 [2009] ECHR 1980 (10 November 2009)

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The European Court of Human Rights (Fifth Section), sitting on 10 November 2009 as a Chamber composed of:

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

Having regard to the observations submitted by the respondent Government at the Court’s request in accordance with Rule 49 § 3 (a) of the Rules of Court,

The applicant, Mr Holger Hajo Otto, is a German national who was born in 1943 and lives in Essen. He was represented before the Court first by Ms Sandra Rakovic, a lawyer practising in Düsseldorf, then by Mr Marc Decker, a lawyer practising in Krefeld.

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

In April 1997, following a complaint lodged in March 1996 and the ensuing police investigations, of which the applicant was aware, the Düsseldorf public prosecutor’s office started a judicial investigation into the activities of the applicant and other persons suspected of fraud and misappropriation of funds. On 23 September 1998 the applicant’s home was searched. On 10 January 2000 the applicant was arrested and remanded in custody. On 23 February 2001 the prosecutor’s office sent the indictment to the Düsseldorf Regional Court, which opened the main proceedings on 26 June 2001. On 8 March 2004, after having held 194 hearings, the Regional Court sentenced the applicant to five years and ten months’ imprisonment for 497 instances of fraud and misappropriation of funds committed between 1991 and 1996. In its reasoning it noted, inter alia, that there had been no unlawful delays in the proceedings, that the investigation had been complex and that the applicant, by his conduct, had been the cause of the delays in the main proceedings.

On 26 July 2005 the Federal Court of Justice declared an appeal on points of law inadmissible in so far as alleged procedural irregularities were concerned, and the remainder of the appeal ill-founded.

On 17 November 2005 a bench of three judges of the Federal Constitutional Court rejected a constitutional appeal lodged by the applicant (no. 2 BvR 1627/05) without giving reasons. The applicant received the decision on 27 November 2005.

The applicant complained in particular about the length of the criminal proceedings against him, Relying on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ...”

The Court notes that the applicant’s home was searched on 23 September 1998, a police investigation – about which the applicant says he knew – having been launched in July 1996. The ensuing criminal proceedings ended on 27 November 2005, when the decision of the Federal Constitutional Court reached the applicant. The proceedings thus lasted at least seven years and a little more than two months, for three levels of jurisdiction.

There is no need for the Court to examine whether the length of the proceedings was reasonable, however, as the application must be dismissed for another reason.

By virtue of Article 35 § 1 of the Convention, the Court may deal only with applications lodged with it within six months from the date on which the final domestic decision was taken. This rule, which reflects the wish of the contracting Parties not to have old decisions challenged after an indefinite period, serves not only the interests of the Government but also legal stability as an intrinsic value (see De Wilde, Ooms and Versyp v. Belgium, 18 November 1970, § 50, Series A no. 12), while also answering the need to leave the applicant time to decide whether to apply to the Court and to prepare his application. This rule also places a time-limit on the supervision provided by the Court and tells both private individuals and State authorities the period beyond which its supervision ceases (see, among others, Kalogeropoulos v. Greece (dec.), no. 28451/02, 10 March 2005, Cenaj v. Greece and Albania (dec.), no. 12049/06, 4 October 2007, and Di Giorgio v. Italy (dec.), no. 35808/03, 29 September 2009). Furthermore, the Court cannot decide not to apply the six-month rule simply because a Government has not submitted a preliminary objection that the application was lodged out of time (Belaousof and Others v. Greece, no. 66296/01, § 38, 27 May 2004).

The Court reiterates that the day on which the final domestic decision is pronounced is not counted in the six-month period referred to in Article 35 § 1 of the Convention. Time starts to run on the date following the date on which the final decision has been pronounced orally in public, or on which the applicant or his representative was informed of it, and expires six calendar months later, regardless of the actual duration of those calendar months (see, mutatis mutandis, K.C.M. v. the Netherlands, no. 21034/92, decision of the Commission of 9 January 1995, Decisions and Reports 80B, p. 87, and Hokkanen v. Finland, no. 25159/94, decision of the Commission of 15 May 1996; see also Nelson v. the United Kingdom, no. 74961/01, §§ 12-13, 1 April 2008).

The Court notes in the instant case that, according to the information contained in the application form, the Federal Constitutional Court’s decision of 17 November 2005, which was the final domestic decision, reached the applicant on 27 November 2005. The six-month period provided for in Article 35 § 1 of the Convention therefore started to run on 28 November 2005 and expired on 27 May 2006. However, the first letter including the application form signed by the applicant’s first lawyer (who also represented him before the domestic courts), dated 25 May 2006, was sent by fax on 29 May 2006, at 8.17 a.m., which date must be considered to be the date on which the present application was lodged (see RůZičková v. Czech Republic (dec.), no. 15630/05, 16 September 2008, and Kadiķis v. Latvia (dec.) (no. 2), no. 62393/00, 25 September 2003). That being so, the applicant lodged his application with the Court more than six months after the date of the final domestic decision.

As the last day of the six-month period, that is, 27 May 2006, fell on a Saturday, and the applicant may well have believed that this meant that the deadline was extended to the next working day, namely Monday 29 May 2006, the Court reiterates that compliance with the six-month deadline was determined using criteria specific to the Convention, not those of each respondent State’s domestic legislation (see Kadiķis, cited above). Furthermore, considering the time-limit provided for in Article 35 § 1 of the Convention, there is no indication in this case that the applicant, who was represented by a lawyer, could not have foreseen that the deadline fell on a weekend and acted accordingly.

It follows that this complaint was lodged out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. The same applies to the other complaints, even assuming that all domestic remedies were exhausted.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Holger Hajo OTTO v Germany - 21425/06 [2009] ECHR 1980 (10 November 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/1980.html Cite as: [2009] ECHR 1980