BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF JAHNKE v. GERMANY
(Application
no. 39641/08)
JUDGMENT
STRASBOURG
3 March
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Jahnke v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Boštjan M. Zupančič,
President,
Mark Villiger,
Angelika Nußberger,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 8 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 39641/08) against the
Federal Republic of Germany lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a
German national, Ms Margarethe Jahnke
(“the applicant”),
on 11 August 2008.
- The
applicant was represented by Mr M. Gress, a lawyer practising in
Hannover. The German Government (“the
Government”) were represented by their Agent, Mrs
A. Wittling-Vogel, Ministerialdirigentin,
Federal Ministry of Justice.
- On
2 June 2009 the
President of the Fifth Section decided to communicate
the complaint concerning the length of the proceedings to the
Government. He also invited the Government to explain whether in the
circumstances of the case the applicant had at her disposal an
effective remedy to complain about the length of the proceedings. In
accordance with Protocol 14, the application was assigned to a
Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Stadthagen.
- On
7 June 1999, following the introduction of preliminary investigations
against the applicant on account of money laundering (Geldwäsche),
the Stadthagen District Court ordered the seizure of 40,000 German
marks.
- On 18 December 2001 the Hannover Public Prosecutor
introduced a formal accusation against the applicant and three
others, including her former partner. The applicant was accused of
having committed in 1997 and 1998 by one and the same act
(Tateinheit) money laundering and accessory after the fact
(Begünstigung).
- Thereafter the applicant’s legal counsel, who had
been jointly accused, resisted his exclusion as defence counsel. On
12 August 2002, following decisions of the Hanover Regional Court and
the Celle Court of Appeal (this court had already rendered a similar
judgment in a parallel case in 2001), the Federal Court of Justice
rejected his appeal. A request to the Federal Constitutional Court
for interim protection was also to no avail. On 4 October 2002 the
files were returned to the Hanover Regional Court.
- On 11 November 2002 the applicant’s new legal
counsel requested access to the files, which was granted.
- On 2 December 2002 the Hannover Regional Court decided,
on the basis of the accusation, to open the trial against the
applicant and three co accused.
- By
a letter dated 6 December 2002 the applicant’s lawyer requested
a subsequent hearing pursuant to Article 33(a) of the German Code of
Criminal Procedure (see “Relevant domestic law” below).
- By a letter dated 10 December 2002 the applicant’s
counsel opposed both accusations. As regards the opening of the trial
on account of money laundering, he submitted that at the time of the
offences in question the applicant’s acts were not yet
punishable.
- By further letters dated 6 February 2003, 10 and 24
April 2003, 2 July 2003 and 21 July 2003 he again opposed the
accusation on legal grounds (no fair hearing, no legal ground for the
accusation) and found that, on account of this, the main proceedings
had not yet been validly opened and that therefore no hearing could
be scheduled.
- On 24 July 2003 the Hannover Regional Court separated
the proceedings against three of the then six co-accused, including
those of the applicant. On the same day the court informed the
applicant’s legal counsel that the decision to open the trial
could not be challenged. It also informed him that, even though he
had been heard sufficiently in the meantime, it would decide on his
numerous respective motions.
- On 20 August 2003 the Celle Court of Appeal rejected
the applicant’s appeal against the Regional Court’s
inactivity regarding her motion under Article 33(a) of the Code of
Criminal Procedure.
- Thereafter a new dispute arose on account of the fact
that the applicant’s first legal counsel also wanted to defend
her former partner. The files again had to be transferred to the
Celle Court of Appeal and the Federal Court of Justice. On 5 March
2004, after that court’s decision of 17 December 2003, the
files were returned to the Hannover Regional Court
- On 4 February 2004 the applicant’s (new) legal
counsel again referred to his motion of 6 December 2002 and requested
the court to further the proceedings.
- On 10 September 2007 the Hannover Regional Court again
joined the proceedings. On 13 September 2007 it scheduled five
hearings to take place between 18 October 2007 and 10 January 2008.
On 17 September 2007 the applicant’s legal counsel again
referred to his motion of 6 December 2002. On 27 September 2007 the
Hanover Regional Court cancelled all hearings. On 29 November 2007 it
scheduled four hearings to take place from 17 December 2007 onwards.
- By a decision of 19 December 2007 the Hannover
Regional Court again separated the proceedings against inter alia
the applicant.
- On 7 January 2008 the applicant lodged a
constitutional complaint.
- On 17 April 2008 the Federal Constitutional Court
refused to admit the constitutional complaint as it had been
introduced out of time.
- On 9 January 2009 the Hannover Regional Court, by
reference to the accusation dated 18 December 2001, refused to open
criminal proceedings against the applicant. It found that in so far
as she was accused of money laundering, her acts were not yet
punishable at the relevant time (since the relevant provision of the
German Criminal Code had only been amended thereafter) and that, as
regards the accusation of accessory after the fact, criminal
prosecution was now time-barred.
II. RELEVANT DOMESTIC LAW
A. Section 33a of the Code of Criminal Procedure
In reads as follows: “If the court,
in a decision detrimental to a participant, used facts or evidentiary
conclusions in respect of which he has not yet been heard and if he
is not entitled to lodge a complaint against this decision or to any
other legal remedy, the court shall give this participant a
subsequent hearing, as far as the detriment still exists, either of
proprio motu
or upon an application, and decide upon an application. The court may
amend its decision without an application.”
B. Section 153 of the Code of Criminal Procedure
Section 153 of the Code of Criminal
Procedure provides that the public prosecution or the courts may
discontinue the proceedings at any stage if the perpetrator’s
culpability is considered to be insignificant and if there is no
public interest in the prosecution.
C. Section 206a of the Code of Criminal Procedure
According to this provision, the court may
terminate the proceedings by an order made outside the main hearing
where a procedural impediment arises after the main proceedings have
been opened.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, 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
Government, referring to the criteria established by the Court,
submitted that the case had been complex since proceedings against
the applicant’s former partner and altogether four further
persons had been joined on account of their direct connection. They
conceded that the criminal proceedings constituted a particular
strain for the applicant and that, between February 2004 and
September 2007, the court failed to further the proceedings. In their
view, however, a period of 15 months was clearly attributable to the
applicant.
- The
period to be taken into consideration began in June 1999 with the
introduction of criminal investigations against the applicant and
ended on 9 January 2009 when the Hannover Regional Court refused to
open criminal proceedings against the applicant. The proceedings thus
lasted for some 9 years and 7 months at one level of jurisdiction.
A. Admissibility
- The
Government argued that, in so far as the offence accessory after the
fact was concerned, the applicant’s complaint was inadmissible
for non exhaustion of domestic remedies. In their view, the
applicant could have requested the court to stay the proceedings
pursuant to section 153 § 2 of the German Code of Criminal
Procedure (see “Relevant domestic law” above). They
further submitted that, after the proceedings had lasted several
years, a motion for the termination of the proceedings pursuant to
section 206a of the Code of Criminal Procedure (see “Relevant
domestic law” above) should have been made.
- The
applicant contested this view, arguing in particular that it would be
artificial to distinguish between the two accusations which were the
result of one and the same legal act. She submitted that under
section 153 § 2 of the Code of Criminal Procedure
proceedings could only be stayed as a whole and only at the request
of the public prosecutor.
- The
Court finds that in the present case, in view of the fact that the
length of the proceedings regarding money laundering would not have
been affected had the applicant requested to stay the proceedings
regarding accessory after the fact, it need not rule on the question
whether, in the instant case, the mentioned means were to be
qualified as effective remedies to complain about the length of the
proceedings. The Court therefore rejects the Governments’
objection.
- The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
- 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 (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II)
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
For, while the Court accepts that the proceedings at issue, which
were linked to those of the applicant’s co-accused, were of
some complexity and while it agrees with the Government that the
applicant caused delays of at least 15 months, it nonetheless finds
that this does not justify the overall duration of the proceedings
which were pending for more than eight years before the Hanover
Regional Court alone and were not furthered at all for a period of
three and a half years.
- Having
regard to its case-law on the subject and the foregoing
considerations, the Court therefore considers that in the instant
case the length of the proceedings was excessive and failed to meet
the “reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. ARTICLE 13 OF THE CONVENTION
-
The Court further invited the Government to
explain whether, in the circumstances of the case, the applicant had
at her disposal an effective remedy to complain about the length of
the proceedings as required by Article 13 of the Convention
which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government conceded that the applicant did not have at her disposal
an effective remedy affording redress for the unreasonable length of
the criminal proceedings. They however pointed out that the Ministry
of Justice was in the process of elaborating a draft bill for the
implementation of a domestic remedy in this respect.
- The
Court has already held that in cases in which criminal proceedings
against an applicant are discontinued, German law does not provide
for an effective remedy to provide redress for the protracted length
of the proceedings (see Ommer v. Germany (no. 2), no.
26073/03, § 64, 13 November 2008). It takes note of the
Government’s submissions according to which the elaboration of
a solution in this respect is under way.
- In
view of the fact that the situation nonetheless has not been remedied
yet, the Court finds that there has been a violation of Article 13 of
the Convention.
III. REMAINDER OF THE APPLICANT’S COMPLAINTS
- The
applicant, once more relying on Article 6 § 1 and 13 of the
Convention, also complained that the Hannover Regional Court had not
taken a formal decision on her request for a subsequent hearing, as
foreseen in section 33(a) of the Code of Criminal Procedure. She also
complained under Article 7 of the Convention that at the relevant
time her acts were not yet punishable as money laundering.
- The
Court, having regard to all the material in its possession, finds
that these complaints do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application is manifestly
ill-founded and must be rejected pursuant to Article 35 §§
3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award her any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
complaints inadmissible;
- Holds that there has been a violation of Article
6 § 1 and Article 13 of the Convention;
Done in English, and notified in writing on 3 March 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Boštjan M. Zupančič
Deputy
Registrar President
