BATUZOV v. GERMANY
Inadmissible
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
The applicant, Mr Andrej Batuzov, is a national of Latvia and Greece who was born in 1964 and lives in Riga. His application was lodged on 24 April 2007. He was represented before the Court by Mr A. Küster and Mr O.Wallasch, lawyers practising in Wiesbaden. On 14 February 2000 the Koblenz District Court issued a warrant of arrest against the applicant on the ground that there was a strong suspicion that he had offered to instigate a third person to commit a murder of a public prosecutor and that he had agreed with a third person to commit a further murder. The warrant was further based on the strong suspicion that he had committed six offences under the Federal Weapons Act. The court found that the applicant was likely to abscond as he had to expect a severe sentence and had family ties in Eastern Europe. On 17 February 2000 the applicant was arrested. On 28 August 2000, 23 April 2001 and 25 July 2001 the Koblenz Court of Appeal ordered that the applicant’s detention on remand was to continue. On 2 November 2000 the Koblenz District Court extended the facts of the warrant of arrest to the suspicion that the applicant had been dealing with drugs (500 kg of cannabis) to a considerable extent (Handeltreiben mit Betäubungsmitteln in nicht geringer Menge). On 29 January 2001 the Koblenz Public Prosecutor’s Office charged the applicant with attempting to instigate a third person to commit a murder and with conspiracy to commit a murder (Verabredung eines Mordes). He was further accused of dealing with drugs to a considerable extent and with five offences under the Federal Narcotics Act. Moreover, he was charged with four offences under the Federal Weapons Act and three counts of human trafficking committed by a gang. Finally he was charged with five counts of forging official documents. The bill of indictment consisted of some 230 pages and named 73 witnesses living in five different countries. On 25 May 2001 the Koblenz Regional Court admitted the indictment without modifications and decided to open the trial against the applicant and two other accused. The trial started on 14 August 2001. On 13 January 2004 the Koblenz Regional Court adapted the warrant of arrest. It found that the applicant was likely to abscond as his son and partner had moved to Lithuania and as he had to expect a severe prison sentence. On 1 September 2004, after the trial had taken place on 156 days, the Koblenz Public Prosecutor’s Office and the applicant came to an agreement. They agreed on a minimum sentence of eight years and six months´ imprisonment and that all other pending criminal proceedings against the applicant were to be terminated. Further, the Prosecutor’s Office agreed to apply for the conditional release of the applicant when he would have served two thirds of his sentence provided that the applicant’s conduct during the detention would be without reproach and that he would not commit any further offences. The agreement was noted in the minutes. On the same day the Koblenz Regional Court sentenced the applicant to eight years and six months´ imprisonment for conspiracy to commit a murder, for drug trafficking with a considerable amount of drugs and for three offences under the Federal Weapons Act. The Koblenz Regional Court took into consideration the length of the criminal proceedings as well as the length of the applicant’s detention on remand as mitigating factors. The applicant was acquitted of the remaining offences he had been accused of. Simultaneously, the Koblenz Regional Court ordered that the applicant’s detention on remand was to continue. On 8 September 2004 the applicant appealed on points of law against the Koblenz Regional Court’s judgment. On 4 May 2005 the complete reasoning of the judgment was taken to the file. On 3 June 2005 the minutes were completed and taken to the file. On 12 May 2005 the applicant appealed against the arrest warrant. On 14 June 2005 the Koblenz Regional Court dismissed the appeal against the arrest warrant. On 23 June 2005 the Koblenz Court of Appeal confirmed this decision. On 19 July 2005 the applicant filed a request for reconsideration (Gegenvorstellung). On 27 July 2005 the Koblenz Court of Appeal dismissed the request. On 6 July 2005 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint against the decision of the Koblenz Court of Appeal, finding it inadmissible due to the applicant’s failure to submit all court decisions. On 14 September 2005 the applicant applied again to the Koblenz Regional Court and requested to lift the warrant of arrest or to suspend its execution. On 29 September 2005 the Koblenz Regional Court ordered that the applicant’s detention on remand was to continue. On 21 November 2005 the Koblenz Court of Appeal dismissed the applicant’s appeal against this decision. On 29 December 2005 the Federal Constitutional Court quashed the decision of the Koblenz Court of Appeal and remitted the case to that court. It stated that the detention on remand violated the applicant’s constitutional right to liberty as the courts had failed to adhere to the principle to hear cases more speedily in which the accused is detained (Beschleunigungsgebot in Haftsachen). The Federal Constitutional Court scrutinized the various stages of the applicant’s trial that had taken place so far. It had regard to the fixing of the hearing schedule by the Koblenz Regional Court and found that the conduct of one hearing per week only contradicted the case-law of the Koblenz Court of Appeal in similar voluminous cases which disclosed that two hearings per week had to be conducted. The Federal Constitutional Court found that the scheduling of the trial alone was likely to constitute a violation of the constitutional principle to have one’s case heard more speedily. The Federal Constitutional Court evaluated the further delays that had occurred after the pronouncement of the verdict as a whole. It noted, inter alia, that the Regional Court had taken the reasoning of its judgment to the case file only after 35 weeks had passed since its pronunciation. It attributed a further delay of six weeks to the judicial authorities as the applicant was notified of the judgment only after this period. The Federal Constitutional Court stated that the Koblenz Court of Appeal had therefore failed to strike a fair balance between the applicant’s right to liberty under Article 2 § 2 second sentence of the German Basic Law on the one hand and the state’s duty to prosecute crimes on the other hand. Referring to the case of Erdem v. Germany (no. 38321/97, ECHR 2001VII (extracts)) the Federal Constitutional Court argued that the more the detention on remand lasted the more reasoning it required. It stressed, inter alia, that the applicant’s detention on remand had lasted already more than two thirds of the sentence imposed on him and that the Koblenz Prosecutor’s Office had agreed to favour his release when 2/3 of the sentence had been executed. It further ordered the Koblenz Court of Appeal to reconsider the applicant’s appeal. Simultaneously it stressed that the established breaches of the principle to more speedily hear cases in which the accused is detained did not justify a further detention on remand. On 3 January 2006 the Koblenz Court of Appeal quashed the decision of the Koblenz Regional Court dated 29 September 2005. The applicant was released. On 17 July 2005 counsel filed the reasons for the applicant’s appeal. On 22 July 2005 the Regional Court sent the case file to the Koblenz Prosecutor’s Office. However, some parts of the case file had not been attached by mistake and were sent later on demand of the Public Prosecutor’s Office. On 4 August 2005 the Public Prosecutor received the missing parts of the case file. On 20 September 2005 the Koblenz Public Prosecutor finished his observations on the applicant’s appeal on points of law (Revisionsgegenerklärung). On 24 September 2005 the case file was sent to the Federal Public Prosecutor General. On 2 November 2005 the case file was sent to the Koblenz Regional Court in order to rectify errors in the minutes. The Koblenz Regional Court returned the case file on 11 November 2005. On 24 April 2006 the Federal Court of Justice confirmed the judgment of the Koblenz Regional Court as to the conviction. Simultaneously, it reduced the cumulative sentence imposed on the applicant from eight years and six months to eight years and two months of imprisonment. The remainder of the applicant’s appeal was dismissed The Federal Court of Justice found that the law enforcement authorities had violated Article 6 § 1 of the Convention by unreasonably delaying the criminal proceedings against the applicant. It referred in so far to the judgment of the Federal Constitutional Court dated 29 December 2005. The Federal Court of Justice also stressed that the main proceedings before the Regional Court had lasted very long. It noted that although the Regional Court had taken account of the length in its fixing of the sentence it could not have considered any delays which had occurred after the pronouncement of the verdict. In order to compensate for the delay in the proceedings, the Federal Court of Justice reduced each separate sentence imposed on the applicant for one month and the cumulative sentence for four months. The applicant lodged a constitutional complaint against the judgment of the Federal Court of Justice. On 27 September 2006 the Federal Constitutional Court found that the constitutional complaint was inadmissible and refused to admit it for consideration. The Federal Constitutional Court found that the applicant had failed to challenge the length of the proceedings before the Federal Court of Justice in a sufficient manner.