MARCHITAN v. GERMANY
Inadmissible
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicants, Mr Georghe Marchitan and Mrs Anastasia Marchitan, are Moldovan nationals who were born in 1948 and 1950 respectively and live in Coscalia. They are represented before the Court by Mr V. Iordachi, a lawyer practising in Chisinau. The applicants’ son Eugen Marchitan was born in 1983. On 23 March 2004 he was remanded in custody by the Aschaffenburg Police on the suspicion of burglary. He was transferred to the Aschaffenburg prison where he was placed in a single cell. The next morning, at 6.18 a.m., he was found dead in his cell, strangled with his shoelaces. Following a police investigation, in which neither the applicants nor apparently the Moldovan consular authorities were involved, the German authorities concluded on the basis of a post-mortem that the applicants’ son had committed suicide and discontinued the criminal investigation into his death. On 26 May 2004 the German authorities informed the Moldovan consular authorities in a note verbale about the outcome of the proceedings. On 11 July 2005 counsel for the applicants requested that the criminal investigation into their son’s death be reopened. On 22 September 2005 the Aschaffenburg Public Prosecutor refused on the grounds that the applicants had not identified a specific suspect responsible for their son’s death. Upon counsel’s motion for reconsideration the criminal proceedings against an unidentified suspect were reopened and, on 12 January 2006, again discontinued. On 28 April 2006 the Bamberg Prosecutor General refused the applicants’ request to order that the investigation be reopened. On 14 August 2006 the Bamberg Court of Appeal dismissed as inadmissible the applicants’ request for a decision concerning the discontinuance of the criminal investigation into their son’s death. The Court of Appeal held that the applicants had failed to name an individual suspect in respect of the alleged manslaughter as required by the relevant provisions of the Code of Criminal Procedure and noted as “merely supplementary” that the applicants had failed to provide all the facts and pieces of evidence as required by law (compare “Relevant domestic law and practice” below). The decision was served on the applicants’ German counsel on 21 November 2006. If a criminal investigation offers sufficient reasons for preferring public charges, the Public Prosecutor shall prefer them by submitting a bill of indictment to the competent court (Article 170(1) of the Code of Criminal Procedure). In all other cases the Public Prosecutor shall terminate the proceedings (Article 170(2) of the Code of Criminal Procedure). An aggrieved party may not prefer public charges concerning felonies and serious misdemeanours. If the Public Prosecutor orders a criminal investigation to be discontinued the aggrieved party may, however, complain to the Prosecutor General within two weeks (Article 172(1) of the Code of Criminal Procedure). If the Prosecutor General dismisses the complaint, the aggrieved party may apply for a decision of the Court of Appeal ordering the Public Prosecutor to prefer charges (Article 175 of the Code of Criminal Procedure) by a bill of indictment that must include the indicted person, the criminal offence with which the person is charged, the time and place of its commission, its elements of crime and the statutory elements which are to applied (Article 200(1) of the Code of Criminal Procedure). The application for such a decision by the Court of Appeal must contain all the information in a comprehensive manner needed by the Court of Appeal to assess whether criminal charges ought to be preferred. The Court of Appeal decides on the basis of the application without consulting the investigation file. According to the case-law of the Courts of Appeal an application that the Public Prosecutor be ordered to prefer public charges must contain the name of a specific suspect. Only exceptionally may the Public Prosecutor be ordered to open criminal proceedings against unknown persons (see Zweibrücken Court of Appeal, no. 1 Ws 424/79, 5 February 1980). Article 1 § 1 of the Basic Law reads as follows: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” Article 2(2), in so far as relevant, provides that every person shall have the right to life and physical integrity. The Federal Constitutional Court has, inter alia, jurisdiction to hear constitutional complaints, which may be filed by any person alleging that one of his basic rights has been infringed by a public authority (Article 93(1) (4a) of the Basic Law, and Article 90(1) of the Act on the Federal Constitutional Court). A constitutional complaint is, as far as relevant here, only admissible after the exhaustion of all other legal remedies (Article 90(2) of the Federal Constitutional Court Act). The complaints before the Federal Constitutional Court must therefore have been presented – at least in substance – to the relevant courts in conformity with the applicable formal requirements. The Federal Constitutional Court has on several occasions quashed decisions of Courts of Appeal dismissing applications that criminal proceedings be continued on the grounds that a too formalistic handling of the admissibility criteria had resulted in a violation of the applicants’ right of access to a court (see Federal Constitutional Court, no. 2 BvR 877/89, decision of 16 April 1992; no. 2 BvR 1201/98, decision of 18 February 1999; no. 2 BvR 1339/98, decision of 29 November 1999; no. 2 BvR 1659/01, decision of 6 June 2003; no. 2 BvR 967/07, decision of 4 September 2008).