Decision on whether criminal proceedings must be reopened following a friendly settlement before the European Court of Human Rights

Press Release No. 16/2019 of 01 March 2019

Order of 13 February 2019
2 BvR 2136/17

In respect to the reopening of criminal proceedings concluded by final judgment, constitutional law does not require that the binding effect of a final judgment (Rechtskraft) be lifted in the event that the European Court of Human Rights (ECtHR) issues a judgment in parallel proceedings concerning other applicants finding a violation of the European Convention on Human Rights (ECHR). Similarly, a friendly settlement reached in proceedings before the ECtHR cannot be considered to constitute a finding of a violation of the ECHR or of its Protocols within the meaning of § 359 no. 6 of the Code of Criminal Procedure (Strafprozessordnung – StPO); this also holds true for cases where the settlement facilitated by the ECtHR relied on a previous judgment against Germany in a similar case. This is what the Third Chamber of the Second Senate of the Federal Constitutional Court decided in an order published today, not admitting for decision a constitutional complaint lodged by a complainant who had entered into a friendly settlement with the Federal Republic of Germany after challenging his criminal conviction by way of individual application to the ECtHR.

Facts of the case:

The complainant had been convicted of drug charges and sentenced to two years and two months in prison by the competent Local Court. The Regional Court dismissed the complainant’s appeal on points of fact and law (Berufung) pursuant to § 329(1) StPO, in the version in force until 24 July 2015, given that only his court-appointed defence counsel was present at the appeal hearing, but not the complainant himself. Neither his application to reinstate the procedural status quo ante (Wiedereinsetzung) nor his appeal on points of law (Revision) were successful; his constitutional complaint challenging these decisions was not admitted for decision. The complainant then lodged an individual application to the ECtHR. By decision of 24 January 2017, the ECtHR struck the proceedings out of its list of cases, after the Federal Government and the complainant had reached a friendly settlement pursuant to Art. 39 ECHR whereby Germany agreed to make a payment to the complainant in the amount of EUR 7,000 together with any costs or expenses incurred; the settlement was reached in light of a judgment by the ECtHR finding a violation in a similar case (Neziraj v. Germany, no. 30804/07). Following this, the complainant applied for a reopening of his criminal proceedings, which had been concluded by final judgment, seeking to be acquitted; both his application and subsequent complaint in the reopening proceedings were rejected.

Key considerations of the Chamber:

1. The refusal to reopen criminal proceedings does not violate the complainant’s right to effective legal protection under Art. 2(1) of the Basic Law (Grundgesetz – GG) in conjunction with the principle of the rule of law.

a) The legal possibility of reopening proceedings concluded by final judgment exemplifies the conflict arising between substantive justice and legal certainty. By allowing this possibility, the principle of legal certainty is lifted for the sake of the precept of substantive justice. Yet the principle of legal certainty demands that its lifting be limited to a narrowly restricted number of exceptional grounds. In respect of the reopening of proceedings before German courts following a finding by the ECtHR of a violation in the challenged proceedings, the case-law of the Federal Constitutional Court does not recognise a constitutional obligation to impute to a judgment of the ECtHR holding a decision by a German court in violation of the ECHR the effect of cancelling the binding force of the challenged final decision. In this regard, the principle of the rule of law does not require allowing proceedings to be reopened, even in cases where a finding by the ECtHR establishes a violation of the ECHR. Even after the enactment of § 359 no. 6 StPO in 1998, whose legislative materials expressly stated that this provision was not meant to recognise any constitutional obligation to this effect, but merely served to ensure the openness of domestic law to the ECHR, the Federal Constitutional Court affirmed this approach.

b) Based on these standards, the refusal to reopen proceedings in the present case is not objectionable under constitutional law. In finding that the requirements of § 359 no. 6 StPO were not satisfied, neither the Local Court nor the Regional Court failed to recognise the constitutional significance attached to the procedure for reopening proceedings.

aa) Regarding the principle of legal certainty, it should be noted that § 359 no. 6 StPO constitutes the introduction by the federal legislature of a new ground in criminal procedure for reopening criminal proceedings. According to this provision, a reopening of proceedings concluded by final judgment is admissible for the benefit of the convicted person where the ECtHR has held that there has been a violation of the ECHR or of its Protocols and the final domestic judgment in question was based on that violation.

The provision thus requires a finding by the ECtHR establishing a violation of the ECHR or of its Protocols. The wording of the provision does not unequivocally indicate that such a finding must be issued specifically in the case of the convicted person who seeks a reopening of the criminal proceedings against them. However, the legislative history shows that the legislature intended to make the reopening of proceedings contingent upon a finding by the ECtHR of an actual violation of the Convention in the convicted person’s specific case. In this respect, the legislature made a conscious decision to limit the reopening of proceedings to decisions inter partes. It was thus not objectionable under constitutional law for the regular courts to assume, as they did in the present case, that a finding establishing a violation of the Convention would only satisfy this provision if issued in individual application proceedings that the complainant himself had brought before the ECtHR.

Moreover, there is no fault in the determination by the regular courts that no such finding by the ECtHR had been issued in the complainant’s case. The documents furnished by the complainant show that at the time of the friendly settlement, the ECtHR proceedings were still at a stage where even the admissibility of his individual application had yet to be conclusively established. The only definitive fact established at that time was that neither a single judge nor a three-judge Committee had declared the complainant’s application inadmissible from the outset. While the ECtHR gave notice of this case to the Federal Republic of Germany, inviting its observations, this does not rule out that the competent Chamber of the Court might at a later stage have declared the application inadmissible or ill-founded, due, for instance, to conclusions drawn from the received observations.

Ultimately, neither the ECtHR’s encouragement to reach a friendly settlement with mere general reference to its case-law and practice; nor the Court’s specific reference to Neziraj v. Germany in the notice inviting the respondent’s observations; nor the Court’s finding in the complainant’s case that the settlement was based on respect for human rights can lead to the conclusion that the ECtHR (implicitly) arrived at a finding that the Convention was violated in the complainant’s case. Rather, a friendly settlement pursuant to Art. 39 ECHR specifically allows the respondent state to avoid a finding that it had violated the Convention. In this regard, acknowledgment by the respondent state that there had been a violation of the ECHR is neither required nor typically provided. Similarly, the Court, by issuing a decision pursuant to Art. 39(3) ECHR, does not make any determination regarding the alleged violation. In a similar fashion, the payment of EUR 7,000 made by the Federal Republic of Germany to the complainant at the recommendation of the ECtHR involves neither the acknowledgment of a violation nor any such finding by the Court. It follows that there was no finding of a violation within the meaning of § 359 no. 6 StPO in the complainant’s case.

Furthermore, for the purposes of § 359 no. 6 StPO, it is not constitutionally required that, contrary to the wording and legislative history of the provision itself, a friendly settlement reached between the complainant and the Federal Republic of Germany and accepted by the ECtHR be accorded the same status as a finding of a violation of the ECHR. Even in cases where the ECtHR does indeed find a violation, it is not required under constitutional law to impute to the ECtHR’s judgment the effect of cancelling the binding force of a final decision rendered by German courts; therefore, a constitutional requirement of this nature certainly does not arise in cases where the ECtHR did not even find a violation. This also holds true for cases like the present one in which the ECtHR has suggested a friendly settlement in light of and in reference to a previous finding of a violation of the ECHR by the Federal Republic of Germany in essentially similar prior proceedings involving a different applicant. In this respect, it must also be taken into account that an applicant agreeing to a friendly settlement in accordance with Art. 39 ECHR does so voluntarily.

bb) Even when interpreting the balancing of conflicting rule-of-law requirements, which § 359 no. 6 StPO aims to achieve, in conformity with the ECHR, it is not necessary that the case at hand be treated equally to cases in which the ECtHR did find a violation. It is true that in its recent case-law, the ECtHR emphasises that it considers the possibility, provided for under domestic law, of reopening criminal proceedings concluded by final judgment to represent an appropriate form of redressing an – established – violation. However, this does not change the fact that it is, in principle, for the Contracting Parties to decide how to redress a violation of the Convention, and that they must discharge this obligation with the means available within their domestic legal system. This is reflected in Art. 41 ECHR, which provides that just satisfaction for the consequences of a violation be afforded to the injured party in cases where the domestic law allows only partial reparation to be made.

2. The challenged decisions also do not violate the complainant’s right under Art. 103(1) GG, which is a right equivalent to a fundamental right (grundrechtsgleiches Recht). It is clear that the Regional Court manifestly took the complainant’s submission into account, without agreeing with his legal view. Based on the applicable constitutional standards, this does not constitute a violation of the right to be heard.