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FIFTH
SECTION
DECISION
Application no.
19488/09
Luis Angel GARCIA CANCIO
against Germany
The
European Court of Human Rights (Fifth Section), sitting on
29 May 2012 as a Chamber composed of:
Dean
Spielmann,
President,
Karel
Jungwiert,
Boštjan
M. Zupančič,
Mark
Villiger,
Ann
Power-Forde,
Angelika
Nußberger,
André
Potocki, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
regard to the above application lodged on 8 April 2009,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
noted that the Government of Spain do not wish to intervene in the
case as a third party,
Having deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Luis Angel Garcia Cancio, is a Spanish national who was
born in 1952 and lives in Madrid. He is represented before the Court
by Ms A. Haucke-D’Aiello, a lawyer practising in Munich.
The
respondent Government were represented by their agent
Mr H. J. Behrens, Ministerialrat, of the
Federal Ministry of Justice.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
1. Pre-trial investigations
- On
5 August 1994 investigations in relation to contraband trade of
cigarettes were instituted by the Lindau Custom Investigation
Office (Zollfahndungsamt). On 15 April 2002 the prosecution
registered the applicant as an accused in these proceedings; on 27
March 2003 he was questioned as an accused.
2. First indictment
- On
30 August 2004 the applicant and several co-accused were charged with
a violation of the Foreign Trade Act (Außenwirtschaftsgesetz)
in conjunction with UN Resolution No. 757 (1992) concerning the
embargo against Serbia and Montenegro (see relevant domestic and
international law below), with regard to a total of 559 shipments of
cigarettes in 1994 and 1995.
- On
1 October 2004 the Augsburg Regional Court asked the
prosecution for clarification regarding its territorial jurisdiction.
On 10 November 2004 the prosecution returned the file to the
Regional Court with additional submissions.
- On
6 July 2005 the prosecution withdrew the first indictment.
3. Second indictment
- On
25 July 2005 the prosecution submitted a new indictment. On 24 August
2005 this indictment was served on the applicant’s counsel.
In September 2005 the Regional Court ordered a translation of
the indictment to be served on the applicant.
- Between
September 2005 and November 2006 the applicant’s counsel
requested nine extensions of time-limits to submit further
observations, which were all granted.
- On
26 June 2007 the Regional Court decided to open the main proceedings
against the applicant and one other co-accused regarding one part of
the indictment.
- On
11 July 2007 the prosecution and the applicant appealed this
decision.
- On
7 August 2007 the Regional Court dismissed the applicant’s
appeal arguing that his right to be heard before the opening of
criminal proceedings was not interfered with.
- On
30 November 2007 the Munich Court of Appeal rejected the appeal of
the prosecution for the most part.
- On
6 May 2008 the Regional Court dismissed the applicant’s motion
for reconsideration.
- On
27 August 2008 the Court of Appeal dismissed the
applicant’s appeal against the decision of the Regional Court
of 7 August 2007.
- On
29 September 2008 the dates of the trial were fixed for 3 and
10 December 2008. On the first day of trial the proceedings
against the applicant, who at that time was imprisoned in Italy, were
disjointed.
- On 25 March
2009 the Regional Court provisionally stayed the proceedings on
request of the prosecution in view of pending criminal proceedings
against the applicant in Switzerland pursuant to Article 154
paragraph 2 of the Code of Criminal Procedure.
4. Constitutional complaint
- On
14 June 2008 the applicant lodged a constitutional complaint against
the decision of the Regional Court of 26 June 2007 to open the main
proceedings against him. He raised the issue of the length of the
proceedings, an alleged lack of fairness of the proceedings and the
infringement on the principle of double-jeopardy.
- On
8 October 2008 the Federal Constitutional Court declared the
complaint inadmissible, finding that the impugned decision was a mere
intermediate decision and thus did not constitute a suitable object
of a constitutional complaint.
5. The creation of a new domestic remedy
- On
7 December 2011 the Government informed the Court that in response to
the pilot judgment Rumpf v. Germany (no. 46344/06, 2 September
2010) a federal Act against Protracted Court Proceedings and Criminal
Investigations had entered into force on 3 December 2011.
- In
December 2011 the Court informed the applicant in the present case
and other applicants in the same position of the enactment of a new
domestic remedy. The Court referred to the case Brusco v. Italy
((dec.),
no. 69789/01, ECHR 2001 IX) and invited him to
inform the Court whether he intended to make use of the new remedy
within the time-limit set by the transitional provision of that Act
(see for details § 36 et seq below).
- By
letter of 29 February 2012 the applicant informed the Court that the
domestic remedy might not apply in his particular case, as the
criminal proceedings were stayed. He suggested that the Court should
invite the German Government to give further explanations on the new
remedy in comparison to the situation in Brusco v. Italy
(dec.), cited above.
He nevertheless requested that his
application before this Court be maintained while the proceedings
according to the new remedy were pending. Lastly, he doubted that the
costs for the proceedings before this Court would be reimbursable as
damages in the domestic proceedings.
B. Relevant domestic and international law
1. Section 34 (4) of the Foreign Trade Act
“(4) A prison sentence of no less than
two years shall be imposed on anyone who violates a statutory order
... which serves the implementation of an economic sanction imposed
by the Security Council of the United Nations in accordance with
Chapter VII of the United Nations Charter. ...”
- In
2006 the statutory range of punishment (Strafrahmen) provided
for in section 34 (4) was reduced to an imprisonment from six months
up to five years.
2. United Nations Security Council Resolutions
- United
Nations Security Council Resolution 757 (1992) of 30 May 1992
demanded that all Member States should prevent the sale of all
products and commodities to the Federal Republic of Yugoslavia
(Serbia and Montenegro), except for humanitarian causes.
- With
United Nations Security Council Resolution 1022 (1995) of 22 November
1995 the measures imposed by, inter alia, resolution 757 were
suspended with immediate effect.
3. Section 154 of the Code of Criminal Procedure
- Section
154 of the Code of Criminal Procedure provides for the provisional
stay of criminal proceedings in the following terms:
“...
(2) Once proceedings have been instituted,
the court may provisionally stay them at any stage at the request of
the Public Prosecutor’s Office.
...
(4) If the proceedings have been
provisionally terminated on account of a penalty or measure of reform
and prevention which is to be expected for another offence, the
proceedings may be resumed, unless barred by limitation in the
meantime, within three months after the judgment imposed for the
other offence has entered into force.
(5) If the court has provisionally terminated
the proceedings, a court order is required for their resumption.”
4. The Act on Protracted Court Proceedings and Criminal
Investigations
- The
Act on Protracted Court Proceedings and Criminal Investigations
(Gesetz über den Rechtsschutz bei überlangen
Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren,
henceforth: the Remedy Act) was published in the Federal Law
Gazette - Part I, 2011, page 2302 et seq. - on 2 December 2011 and
entered into force the next day.
a. Relevant features of the remedy
- The
Remedy Act introduces general provisions for civil and criminal cases
in sections 198 to 201 of the Courts Constitution Act
(Gerichtsverfassungsgesetz, henceforth: CCA).
- The
new remedy combines an instrument to expedite the proceedings, an
objection to delay (Verzögerungsrüge), which has to
be raised before the court whose proceedings are allegedly unduly
delayed (henceforth: trial court), with a subsequent compensation
claim to be lodged at the Court of Appeal (henceforth: compensation
court), see section 198 paragraph 1 and 3 CCA.
- According
to section 198 paragraph 1 CCA a party to proceedings
(Verfahrensbeteiligter) who suffers a disadvantage from
protracted proceedings is entitled to adequate compensation. The
amount depends on the length of the individual case taking into
account its difficulty and importance as well as the conduct of the
parties and relevant third persons. A compensation award is not
dependent on the determination of fault.
- The
compensation is awarded in monetary form, if other forms of
compensation for lengthy proceedings are not appropiate, see section
198 paragraph 4 and section 199 CCA. The compensation for one
year of protraction amounts to 1,200 euros. If this amount is not
equitable due to the circumstances of the case, the court may allow
for a higher or lower sum.
- A
prior objection to delay before the trial court is a prerequisite for
a subsequent compensation claim. The action for compensation may not
be lodged with a compensation court until six months after the
objection had been raised, see section 198 paragraph 5 CCA. The
compensation claim must at the latest be lodged within six months of
the final judicial decision of the trial court.
- For
protracted criminal proceedings or investigations the Remedy Act
stipulates in section 199 CCA special provisions, as criminal courts
and the prosecution have already established a standard practice
compensating for unreasonable length which this Court considered to
be in line with the requirements of Articles 6 § 1 and 13 of the
Convention (see Kaemena and Thöneböhn v. Germany,
nos. 45749/06 and 51115/06, § 87, 22 January 2009). In
criminal cases the courts may either afford compensation by declaring
that a specified part of the sentence had to be considered as having
already been served or they may terminate proceedings with the
consent of the prosecution.
- In
circumstances where the criminal trial court cannot compensate for
the excessive length of proceedings, e.g. in cases of acquittal or
discontinuance of proceedings for other reasons than length (see
Ommer v. Germany (no. 1), no. 10597/03, § 67 et
seq., 13 November 2008), the provisions of section 198 CCA apply (see
official motivation of the draft law: record of Bundestag 17/3802
page 24) and redress will be granted by monetary compensation.
- Proceedings
for compensation are subject to court fees. However, the plaintiff
will be reimbursed according to the quota of his success in court.
- The
judgment of the compensation court is subject to appeal on points of
law (Revision) only.
b. Transitional provision
- According
to its Article 23 the Remedy Act applies to pending as well as to
terminated proceedings whose duration may still become or have
already become the subject of a complaint with this Court.
- In
pending proceedings the objection to delay (Verzögerungsrüge)
should be raised without delay when the Remedy Act entered into
force.
In these cases the objection preserves a subsequent
compensation claim even for the past.
- For
terminated proceedings whose duration may still become or have
already become the subject of a complaint with this Court it is not
necessary to raise the objection prior to filing a compensation
claim. The claim based on Article 23 of the Act has to be lodged with
the competent court on 3 June 2012 at the latest.
COMPLAINTS
- The
applicant complained under Article 6 § 1 of the Convention about
the length of the criminal proceedings and investigations against
him.
- He
further complained under Article 6 § 1 of the Convention that
the proceedings against him were not fair, in particular that the
indictment lacked sufficient clarity, that important documents were
provided too late, and that the proceedings against him violated the
principle of ne bis in idem.
THE LAW
A. Alleged violation of Article 6 § 1 of the Convention on
account of the length of proceedings
- The
Court will first determine whether the applicant complied with the
rule of exhaustion of domestic remedies set out in Article 35 of the
Convention, which provides, in so far as relevant:
“1. The Court may only deal with the
matter after all domestic remedies have been exhausted, according to
the generally recognised rules of international law, and within a
period of six months from the date on which the final decision was
taken.”
1. General principles
- The
Court reiterates that the purpose of the exhaustion rule is to afford
the Contracting States the opportunity of preventing or putting right
– usually through the courts – 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 until they have had the opportunity to
put matters right through their own legal system. That rule is based
on the assumption, reflected in Article 13 of the Convention –
with which it has close affinity – that there is an effective
remedy available in respect of the alleged breach in the domestic
system.
In this way, it is an important aspect of the principle
that the machinery of protection established by the Convention is
subsidiary to the national systems safeguarding human rights, (see
Akdivar and Others v. Turkey, 16 September 1996, §
65, Reports of Judgments and Decisions 1996 IV; and
Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 et
al., § 69, ECHR 2010 ...).
- Nevertheless,
the only remedies which Article 35 of the Convention requires to be
used are those that relate to the breaches alleged and at the same
time are available and sufficient. The existence of such remedies
must be sufficiently certain not only in theory but also in practice,
failing which they will lack the requisite accessibility and
effectiveness (see Akdivar and Others, cited above, § 66,
and Dalia v. France, 19 February 1998, § 38, Reports
1998 I). In addition, according to the “generally
recognised principles of international law”, there may be
special circumstances which absolve the applicant from the obligation
to exhaust the domestic remedies at his disposal (see Van
Oosterwijck v. Belgium, 6 November 1980, § 36, Series A no.
40, A, and Akdivar and Others, cited above, § 67).
- An
assessment of whether domestic remedies have been exhausted is
normally carried out with reference to the date on which the
application was lodged with the Court. However, this rule is subject
to exceptions, which may be justified by the particular circumstances
of each case (see Brusco, cited above and Fakhretdinov
and others v. Russia (dec.), nos. 26716/09, 67576/09 and
7698/10, 23 September 2010).
2. Application to the present case
- The
Court notes at the outset that the applicant declared that he would
bring proceedings according to sections 198 and 199 CCA within the
time-line set out in Article 23 of the Remedy Act. He doubted,
however, that his application would be admitted due to the fact that
the Augsburg Regional Court did not rule on the length of proceedings
and investigations.
- The
Court does not see any reason to doubt the applicant’s
entitlement to lodge a compensation claim with the competent domestic
court pursuant to Article 23 of the Remedy Act. The German legislator
explicitly pointed out in the official reasoning of the draft law
that for criminal cases where redress for excessive length of
proceedings cannot be granted in the established way (see above §
32), the provisions on monetary compensation become applicable.
- In
view of this element, the Court accepts that the Remedy Act was
enacted to address the issue of excessive length of domestic
proceedings in an effective and meaningful manner, taking account of
the Convention requirements. At this stage, the Court does not see
any reason to believe that the new remedy would not afford the
applicant the opportunity to obtain adequate and sufficient
compensation for his grievances or that it would offer no reasonable
prospect of success.
- The
Court’s position may be subject to review in the future
depending, on the domestic courts’ capacity to establish
consistent case-law under the Remedy Act in line with the Convention
requirements (see Korenjak, cited above, § 73).
- Therefore,
the Court finds that the applicant’s complaint is premature.
- It
follows that this complaint must be rejected under Article 35 §§
1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. The remainder of the applicant’s complaints
-
The Court has examined the remainder of the applicant’s
complaint as submitted by him. However, having regard to all the
material in its possession, the Court finds that, even assuming
exhaustion of domestic remedies in all respects, 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 the remainder of the application must be rejected as
manifestly ill-founded, pursuant to Article 35 §§ 3(a) and
4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Dean Spielmann Registrar President
