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| The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database. | |
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| Please cite the abstract as follows: | |
| Abstract of the Federal Constitutional Court’s Order of 21 December 2022, 2 BvR 378/20 [CODICES] |
Second Senate
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1b. This right is of particular importance for offences in which the victims were in some special way being taken care of by the state and the state has a specific duty of care and custody. Here, prosecution authorities have a special duty of care when conducting investigations and making determinations regarding criminal prosecution.
2a. The constitutional obligation of effective prosecution applies to the actions of all prosecution authorities. This obligation, however, does not always require that a criminal case be brought before the courts. In many cases, it will be sufficient if the investigating authority actually uses its powers and the means available to it in terms of personnel and equipment in accordance with an appropriate use of resources in order to clarify the facts of the case and secure the evidence. The fulfilment of the obligation to effectively prosecute is subject to judicial review.
2b. It is constitutionally unobjectionable to interpret the substantiation requirements of § 172.3 of the Code of Criminal Procedure to require that an application to compel criminal proceedings outline the course of the investigation, the content of the challenged findings and the reasons for their incorrectness, and contain a description of the facts that is comprehensible without regard to other material and that, assuming probable cause, justifies the filing of public criminal prosecution proceedings from a substantive and a formal point of view.
2c. Substantiation requirements must not be interpreted overly strictly, but they also must fulfil the purpose of the law. If an applicant seeks to substantiate their application with extensive material from the investigation files, they must then communicate, in accordance with conclusiveness test that is implicitly provided for in this provision, the essential content of the evidence that they are presenting or quoting. | |
Summary:I. The applicant’s brother died due to burns suffered while in a police custody cell in 2005. In 2012, a police squad leader was convicted of involuntary manslaughter in connection with this incident.
In April 2017, the local public prosecution office initiated investigations against two other police officers for murder. The public prosecution office in Halle, which was in charge of further investigations, ultimately declined to investigate additional individuals or further investigate the cause of death, concluding that such investigations would be unsuccessful. A third public prosecution office in Naumburg was directed by the Ministry of Justice and Equality for Saxony-Anhalt to assume the duties of the Halle public prosecution office and, if necessary, initiate further investigations. The results of the inquiry by the Naumburg public prosecution office were summarised in a 218-page report dated 17 October 2018.
According to the report, the files relating to the incident were reviewed chronologically from the beginning of the investigations to their end, and the evidence had been compared and evaluated in an open-ended manner. The conclusions in the files were considered only after review of all the files and the conclusions were compared both with the findings of the Naumberg public prosecution office as well as submissions made by the applicant and an independent organisation to determine whether there were any effective counterarguments. The report concluded that there were no provable indications that could entirely rule out that the ignition of the fire was due to the actions of the deceased and that only a third party could have been responsible, which was a prerequisite for additional criminal prosecutions. An appeal of decision of the public prosecution office in Halle not to initiate any further investigations was rejected by the Naumberg public prosecution office, with reference to this report.
The applicant applied to the Higher Regional Court for to compel further proceedings; the application was denied as inadmissible. The applicant submitted a constitutional complaint claiming a violation of the right to effective criminal prosecution and effective legal protection as well as the right to be heard and the prohibition against arbitrary decisions.
II. The Federal Constitutional Court declined to admit the complaint for decision based on the following considerations:
The applicant’s right to effective criminal prosecution under the first sentence of Article 2.2 and the second sentence of Article 1.1 in conjunction with Article 6.1 of the Basic Law was not violated. As the brother of the deceased, he is entitled to effective criminal prosecution, but the order of the Higher Regional Court sufficiently takes this into account. The order does not interpret the requirements for the existence of sufficient suspicion of the crime in an overly strict manner. The Higher Regional Court dealt in detail with the results of the investigation and the applicant’s objections and concluded that there was no reasonable suspicion against any specific additional individual.
Similarly, the order did not violate the prohibition of arbitrariness under Article 3.3 of the Basic Law, as it assessed the evidence regarding criminal liability in detail and in a manner that is not constitutionally objectionable, and its conclusions were based on factual reasons.
Insofar as the applicant contends that the Higher Regional Court violated his right to effective legal protection under Article 19.4 of the Basic Law by applying the substantiation requirements of § 172.3 of the Code of Criminal Procedure in an overly strict manner, this contention is also unsuccessful. The substantiation requirements are necessary to prevent a selective and possibly misleading presentation of the investigation results. Here, the applicant referenced a number of theses from certain factual experts, but failed to communicate the essential content of these experts’ opinions. The order also pointed out that there is no description of which police officers are said to have set the fire and what evidence should be used to prove this.
The applicant’s right to be heard under Article 103.1 of the Basic Law was not violated, as it is not ascertainable that his submissions were disregarded. Rather, his complaint is limited to the argument that the Higher Regional Court did not attach the correct importance to his submissions in terms of substantive law. However, Article 103.1 of the Basic Law does not oblige a court to accept the applicant’s legal opinion.
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