CASE OF KAEMENA AND THONEBOHN v. GERMANY
Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The first applicant, Ms Kaemena, was born in 1967 and is currently detained in Vechta. The second applicant, Mr Thöneböhn, was born in 1968 and is currently detained in Celle. 6. On 9 May 1996 the first and the second applicant were arrested and placed in pre-trial detention on suspicion of having jointly murdered the first applicant’s husband on 2 May 1996. 7. On 5 September 1996 the indictment for murder was preferred against the applicants with the Verden Regional Court. 8. On 21 January 1997 the Verden Regional Court opened the trial against the applicants, who were represented by counsel throughout the proceedings before the domestic courts, and against another co-defendant (M.). 9. On 16 December 1997 the Verden Regional Court convicted the applicants and their co-defendant, who had all denied the charges, of having jointly murdered the first applicant’s husband, who had stood in the way of the applicants’ plan to marry, and sentenced them to life imprisonment. 10. Having heard more than fifty witnesses and at least five experts, having inspected the scene of the crime and having analysed the time and duration of numerous telephone calls between the defendants, the Regional Court concluded that the first applicant had given 20,000 Deutschmarks to M. and had lured her husband to a remote place, where he had been shot by the second applicant and M. acting jointly. 11. The Regional Court found that in view of their considerable involvement in their intimate relationship, in which they had driven each other to commit the offence in question, the applicants’ guilt was not of a particular gravity (Article 57a § 1 of the Criminal Code; see paragraph 45 below). 12. On 17 December 1997 the applicants both lodged an appeal on points of law. They complained, inter alia, that the Regional Court had made a procedural error in that it had based its judgment on a document containing a list of telephone calls they had made without that evidence having been produced at the main hearing. 13. The Public Prosecutor’s Office likewise lodged an appeal on points of law, which it reasoned on 29 May 1998. It contested in particular the Regional Court’s finding that the applicants’ guilt was not of a particular gravity. 14. By a decision of 10 February 1999 the Federal Court of Justice (third senate) dismissed the applicants’ appeal on points of law as manifestly ill-founded. It added that it considered the applicants’ appeal to be inadmissible in so far as they had alleged a procedural error. It argued that the applicants had failed sufficiently to substantiate this complaint. They had not informed the court that in the summons for a witness working for the telephone company who had listed the applicants’ phone calls, the president of the Regional Court had stated that the witness was called to explain the content of the said list of calls. 15. By a judgment delivered on the same day, the Federal Court of Justice, having held a hearing, allowed the prosecution’s appeal on points of law. It quashed the judgment of the Verden Regional Court in so far as the latter had not considered the applicants’ guilt to be of a particular gravity and remitted the case to a different chamber of the Regional Court. 16. By submissions dated 8 and 9 April 1999 respectively the second and the first applicant lodged a constitutional complaint with the Federal Constitutional Court. They notably contested the Federal Court of Justice’s finding that their appeal had been inadmissible in so far as they had alleged a procedural error. 17. On 5 July 2001 the Federal Constitutional Court communicated the constitutional complaints to the Federal Court of Justice and the Federal Public Prosecutor for observations. 18. On 6 December 2001 the Federal Public Prosecutor submitted his observations to the Federal Constitutional Court. On 27 December 2001 the president of the Federal Court of Justice filed the observations of all senates of that court. 19. In January 2002 the Federal Constitutional Court invited the applicants to submit written observations in reply by 30 April 2002. 20. On 20 August 2002 the first applicant and on 14 October 2002 the second applicant lodged observations in reply. Both applicants had previously been informed by the Federal Constitutional Court, at their request, that the court would not take a decision before the end of that year. 21. On 30 March 2004 the Federal Constitutional Court informed the first applicant, at her request, that a decision would probably be taken in the course of the year 2004. 22. On 25 January 2005 the Federal Constitutional Court, sitting as a senate of eight judges, quashed the decision of the Federal Court of Justice of 10 February 1999 and remitted the case to that court (file no. 2 BvR 657/99 and no. 2 BvR 656/99). 23. In its leading decision (running to 45 pages), the Federal Constitutional Court examined the constitutionality of the requirements set forth in the case-law of the Federal Court of Justice which an appellant has to satisfy in order to lodge an admissible appeal on points of law about a procedural error. The Federal Constitutional Court found that as a rule, these requirements did not violate the individuals’ right to effective legal protection. However, in the applicants’ case, having regard to the entirety of their submissions made, the Federal Court of Justice had over-stretched the said requirements by requesting information also about a witness’s summons as such, and had therefore breached the applicants’ right to effective legal protection. 24. The Federal Constitutional Court’s decision was served on the applicants’ counsel on 25 May 2005. 25. In their submissions dated 18 July 2005 to the Federal Court of Justice the applicants, contesting the Federal Public Prosecutor’s view, argued, in particular, that the proceedings had lasted unreasonably long. They requested the court to find a violation of Article 6 § 1 of the Convention (the first applicant argued that there had also been a breach of Article 5 § 3 of the Convention) and to mitigate the length of their prison term in compensation. 26. On 28 September 2005 the execution of the arrest warrant against the first applicant was suspended and she remained at liberty until 23 February 2006. 27. The hearing fixed for 1 December 2005 had to be cancelled as the first applicant’s counsel were unavailable. 28. On 15 December 2005 the second applicant suffered a heart attack. 29. Having held a hearing on 12 January 2006, the Federal Court of Justice (third senate) dismissed the applicants’ appeal on points of law by judgment of 7 February 2006. It found that the applicants’ complaint that the Regional Court had made a procedural error in using the telephone lists in evidence was ill-founded because the time and duration of the telephone calls in question had been confirmed by different witnesses who had been confronted at the hearing with the data contained in the telephone list. 30. Moreover, the Federal Court of Justice found that the length of the proceedings did not warrant a mitigation of the applicants’ sentence of life imprisonment. 31. The lapse of time since its decision of 10 February 1999 was not automatically attributable to the judicial authorities only because the Federal Constitutional Court had subsequently quashed that decision. It argued that, as a rule, the fact that a decision was quashed and the case remitted to the lower court did not entail a violation of the right to have one’s case heard within a reasonable time, but was a necessary consequence of the possibility to rectify mistakes on appeal. Only delays caused by decisions which disclosed a flagrant breach of the law could therefore be considered as having delayed the proceedings contrary to the rule of law. As in the present case its decision of 10 February 1999 did not disclose such a flagrant breach of the law, there had not been a delay which was attributable to the judicial authorities since then. 32. Moreover, the Federal Court of Justice considered that it could leave open the question whether the Federal Constitutional Court had failed to treat the applicants’ constitutional complaints without undue delay. Even assuming that there had been such a delay, the applicants could not claim redress therefor. Pursuant to Article 211 of the Criminal Code (see paragraph 43 below) a person acting with criminal responsibility who was found guilty of murder had to be sentenced to life imprisonment. The court further left open whether an exception to this rule had to be made in exceptional cases in which there had been an extreme delay, as this was not the case in the proceedings against the applicants. As their convictions and their sentence had been final according to the provisions of the Code of Criminal Procedure already on 10 February 1999, the uncertainty arising from the applicants’ mere hope that the Federal Constitutional Court would allow their constitutional complaints did not entail a strain which necessitated compensation. In these circumstances, there was no reason for a mere declaration that there had been a violation of the Convention. 33. The judgment was served on the applicants’ counsels on 9 March 2006. 34. In April 2006 the applicants lodged a constitutional complaint with the Federal Constitutional Court against the judgment of the Federal Court of Justice of 7 February 2006. Invoking their right to liberty and to be heard within a reasonable time, they argued in particular that due to the excessive delays in the proceedings, in particular between 10 February 1999 and 7 February 2006, their sentences of life imprisonment should have been reduced to fixed terms of imprisonment. 35. On 21 June 2006 the Federal Constitutional Court, sitting as a panel of three judges, declined to consider the applicants’ constitutional complaints (file no. 2 BvR 750/06 and no. 2 BvR 752/06) as these were manifestly ill-founded. 36. Even though the Federal Constitutional Court was not convinced that the duration of proceedings before it could be added to the length of criminal proceedings, as it was not part of the ordinary system of legal remedies, it left this question open. It found that it was not necessary to examine whether there had been undue delays contrary to the rule of law in the proceedings before it or before the Federal Court of Justice. 37. Even assuming such delays, a reduction of the applicants’ sentences was excluded because in cases of murder, the sentence of life imprisonment was mandatory according to Article 211 of the Criminal Code. Therefore, a violation of the right to be heard within a reasonable time could not, as a rule, lead to a mitigation of this sentence. The court reiterated that the unreasonable duration of criminal proceedings could reduce an offender’s guilt and could, in exceptional cases, even warrant compensation by dispensing with punishment or by discontinuing the proceedings. However, Article 211 of the Criminal Code did not authorise the courts to consider any aspects reducing a murderer’s guilt such as the excessive duration of the proceedings against him or her. This finding was confirmed by Article 78 § 2 of the Criminal Code (see paragraph 44 below). By ruling that murder was not subject to the statute of limitations, the legislator showed that even long delays between the commission and the conviction of this offence should not be taken into consideration as a mitigating factor. 38. The Federal Constitutional Court found that it could be left open whether in cases in which decades had passed between the commission of the offence and the murderer’s final conviction a mitigation of the sentence of life imprisonment was necessary for reasons of proportionality. Even assuming that there had been unreasonable delays in the present proceedings after the Federal Court of Justice’s decision of 10 February 1999, these had not been so long as to justify a mitigation of the mandatory life sentence prescribed by law for murder. 39. The court, disagreeing with the applicants, further found that the rights of a murderer were not less protected than those of other offenders. Unreasonable delays during the proceedings before the criminal courts could, for example, lead to his or her release from detention pending trial. 40. The decision was served on the applicants’ counsel on 5 July 2006. 41. On 6 November 2006 the Verden Regional Court resumed the proceedings concerning the question whether the applicants’ guilt was of a particular gravity, which it had suspended at the applicants’ request. 42. In its judgment delivered on 15 December 2006 the Verden Regional Court found that, having regard to the circumstances in which the murder had been committed, the applicants’ guilt was not of a particular gravity (Article 57a § 1 of the Criminal Code). 43. Under Article 211 of the Criminal Code, the intentional killing of a person is to be qualified as murder if certain aggravating elements are present. A murderer is notably a person who kills another out of cupidity or other base motives (Article 211 § 2). Murder is punishable by life imprisonment (Article 211 § 1). 44. Murder is not subject to the statute of limitations (Article 78 § 2 of the Criminal Code). 45. A declaration by the sentencing court which imposed a life sentence that the offender’s guilt was of particular gravity has a bearing on a subsequent decision of the court dealing with the execution of sentences as to whether or not to suspend the remainder of the offender’s prison sentence on probation. Pursuant to Article 57a § 1 of the Criminal Code, that court suspends the remainder of a life sentence on probation if the convicted person has served fifteen years of his or her sentence, provided that this can be justified in the interests of public safety and provided that the particular gravity of the offender’s guilt does not warrant the continued execution of the sentence. 46. Article 49 and Article 51 of the Criminal Code contain rules on the fixing of sentences. Pursuant to Article 49 § 1 no. 1 of the Criminal Code, the courts are to reduce a life sentence to a term of imprisonment of not less than three years if the mitigation of the penalty under this provision is either prescribed or authorised by law. Article 51 § 1 of the Criminal Code prescribes that the time a convicted offender has spent in detention pending trial for the offence at issue in the proceedings shall, as a rule, be deducted from the term of imprisonment imposed on him. If a period of time spent in detention abroad is to be deducted from the sentence, the court shall determine the period to be deducted at its discretion (Article 51 § 4 of the Criminal Code). 47. According to the settled case-law of the Federal Constitutional Court, which is applied by the criminal courts, Article 2 § 1 of the Basic Law, read in conjunction with the principle of the rule of law as enshrined in Article 20 § 3 of the Basic Law, guarantees the right to expeditious criminal proceedings (see, inter alia, that court’s judgment of 24 November 1983, no. 2 BvR 121/83, § 3; and decision of 5 February 2003, nos. 2 BvR 327/02, 2 BvR 328/02 and 2 BvR 1473/02, § 33). Moreover, penalties imposed on a defendant have to comply with the constitutional right to liberty guaranteed by Article 2 § 2 of the Basic Law, read in conjunction with the principle of proportionality enshrined in the rule of law (see, inter alia, the Federal Constitutional Court’s decision of 5 February 2003, nos. 2 BvR 327/02, 2 BvR 328/02 and 2 BvR 1473/02, § 58; and decision of 21 January 2004, no. 2 BvR 1471/03, § 28). 48. As the legislator did not lay down any rules on the consequences of a violation of the right to expeditious proceedings, the criminal courts and the prosecution authorities are, as a rule, called upon to draw the necessary conclusions from undue delay in the proceedings. They may discontinue the proceedings pursuant to Articles 153 and 153a of the Code of Criminal Procedure, limit criminal prosecution pursuant to Articles 154 and 154a of the Code of Criminal Procedure, terminate the proceedings either by dispensing with a penalty or by a warning with sentence reserved (Verwarnung mit Strafvorbehalt) or take the proceedings’ length into account as a mitigating factor when fixing the penalty (see Federal Constitutional Court, judgment of 24 November 1983, no. 2 BvR 121/83, §§ 4-5; and decision of 21 January 2004, no. 2 BvR 1471/03, §§ 31-32). 49. If there was a violation of the right to expeditious proceedings, the criminal courts, in their judgments, expressly had to determine the extent of the delays and their cause. If redress was afforded by a mitigation of the penalty, the courts then had to fix the extent of the compensation granted by indicating the penalty which they would have imposed without the delay and by fixing the penalty mitigated because of the delays. Only the latter, mitigated penalty appeared in the operative part of the judgment (see, inter alia, Federal Constitutional Court, decision of 7 March 1997, no. 2 BvR 2173/96, Neue Zeitschrift für Strafrecht (NStZ) 1997, p. 591; Federal Court of Justice, decision of 21 December 1998, no. 3 StR 561/98, NJW 1999, pp. 1198-1199 with further references). 50. In its decision of 17 January 2008 the Federal Court of Justice, sitting as Grand Senate for Criminal Matters, reversed its previous case-law on the way in which compensation should be granted for excessive delays in criminal proceedings (file no. GSSt 1/07). 51. The Federal Court of Justice held that in cases in which criminal proceedings had been excessively delayed, the criminal courts should no longer directly reduce the penalty imposed on the convicted person (so-called mitigation of penalty approach – Strafabschlagslösung), but should instead state in the operative part of the judgment that a specified part of the penalty imposed was to be considered as having been executed (so-called “execution approach” – Vollstreckungslösung). 52. The Federal Court of Justice considered that in certain cases, mitigating the penalty in order to compensate for the excessive length of proceedings, which was called for by the Basic Law and the Convention, was not compatible with the provisions of the Criminal Code and of the Code of Criminal Procedure. Notably in cases in which compensation could be granted only by reducing a minimum penalty prescribed by law, the “mitigation of penalty approach” could not be reconciled with the provisions of the Criminal Code. For instance, it was not possible under the provisions of that Code to dispense with imposing a mandatory life sentence in order to compensate for the undue duration of proceedings. 53. By contrast, the “execution approach”, which could be derived from the principle of compensation enshrined in the Convention and from Article 51 §§ 1 and 4 of the Criminal Code (see paragraph 46 above) and which was compatible with Articles 6 and 13 of the Convention, made it possible to afford compensation in all cases of excessive duration of proceedings. It allowed the criminal courts both to impose the minimum sentence prescribed by law and nevertheless to afford compensation by declaring that a fixed part of that penalty had to be considered as already executed. In the case of a life sentence, for instance, the courts could afford compensation by declaring that a part of the minimum sentence to be served (see Article 57a § 1 of the Criminal Code, paragraph 45 above) had to be considered as having been served. Moreover, by separating the fixing of the penalty in accordance with the defendant’s guilt and the granting of compensation, the penalty maintained its function with respect to other provisions of criminal law (concerning, for instance, probation or preventive detention) and provisions concerning civil servants and foreigners. 54. When applying the “execution approach”, the criminal courts first had to determine the extent and causes of undue delays in the proceedings. In fixing the sentence in accordance with the defendant’s guilt, they had to take into consideration as a mitigating factor that a long lapse of time between the offence and the judgment in general reduced the necessity to punish the offender. Moreover, the undue duration of the proceedings could play a role in that the defendant was subjected to a greater burden as a result of lengthy proceedings. In a furtherthen had to determine which part of the penalty was to be considered as having already been executed in order to compensate the defendant for the delay caused by the State authorities and courts contrary to the rule of law. Both the penalty and the part of it which had to be considered as executed had to be taken up in the operative part of the judgment.