CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 3 mars 2011

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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 1.     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. 2.     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. 3.     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 4.     The applicant was born in 1951 and lives in Stadthagen. 5.     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. 6.     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 ). 7.     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. 8.     On 11 November 2002 the applicant’s new legal counsel requested access to the files, which was granted. 9.     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. 10.     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). 11.     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. 12.     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. 13.     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. 14.     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. 15.     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 16.     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. 17.     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. 18.     By a decision of 19 December 2007 the Hannover Regional Court again separated the proceedings against inter alia the applicant. 19.     On 7 January 2008 the applicant lodged a constitutional complaint. 20.     On 17 April 2008 the Federal Constitutional Court refused to admit the constitutional complaint as it had been introduced out of time. 21.     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 22.     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 ...” 23.     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. 24.     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 25.     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. 26.     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. 27.     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. 28.     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 29.     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) 30.     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). 31.     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. 32.     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. 33.     There has accordingly been a breach of Article 6 § 1 of the Convention. II.     ARTICLE 13 OF THE CONVENTION 34.     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.” 35.     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. 36.     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. 37.     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 38.     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. 39.     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 40.     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.” 41.     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 1.     Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the complaints inadmissible;   2.     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