GARCIA CANCIO v. GERMANY
Inadmissible
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger
1. 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. 3. 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. 4. 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. 5. 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. 6. On 6 July 2005 the prosecution withdrew the first indictment. 7. 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. 8. Between September 2005 and November 2006 the applicant’s counsel requested nine extensions of time-limits to submit further observations, which were all granted. 9. 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. 10. On 11 July 2007 the prosecution and the applicant appealed this decision. 11. 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. 12. On 30 November 2007 the Munich Court of Appeal rejected the appeal of the prosecution for the most part. 13. On 6 May 2008 the Regional Court dismissed the applicant’s motion for reconsideration. 14. On 27 August 2008 the Court of Appeal dismissed the applicant’s appeal against the decision of the Regional Court of 7 August 2007. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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 2001IX) 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). 21. 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. “(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. ...” 22. 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. 23. 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. 24. 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. 25. 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.” 26. 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. 27. The Remedy Act introduces general provisions for civil and criminal cases in sections 198 to 201 of the Courts Constitution Act (Gerichtsverfassungsgesetz, henceforth: CCA). 28. 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. 29. 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. 30. 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 31. 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. 32. 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. 33. 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. 34. Proceedings for compensation are subject to court fees. However, the plaintiff will be reimbursed according to the quota of his success in court. 35. The judgment of the compensation court is subject to appeal on points of law (Revision) only. 36. 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. 37. 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. 38. 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.