FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 22448/07 by Georghe MARCHITAN and Anastasia MARCHITAN against Germany

The European Court of Human Rights (Fifth Section), sitting on 19 January 2010 as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger, Karel Jungwiert , Rait Maruste , Mark Villiger , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 18 May 2007,

Having deliberated, decides as follows:

THE FACTS

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.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

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.

B. Relevant domestic law and practice

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).

COMPLAINTS

The applicants complained under Article 2 of the Convention that the German authorities failed to take the necessary steps to prevent their son ’ s suicide in custody and to conduct a serious investigation into the circumstances of their son ’ s death. They further complained under Article 3 of the Convention that they were only informed about their son ’ s detention and death after a considerable period of time.

THE LAW

1. The applicants complained under Article 2 of the Convention about their son ’ s suicide in a German prison and the investigation into the circumstances of his death.

Article 2 reads as follows:

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

The Court notes that the applicants did not lodge a constitutional complaint to the Federal Constitutional Court and provided no explanation why they had not done so. The Court reiterates that a constitutional complaint to the Federal Constitutional Court is, as a general rule, an effective and accessible legal remedy (compare T.A. and Others v. Germany ( dec. ), no. 44911/98, 19 January 1999 , and, e contrario , Sürmeli v. Germany [GC], no. 75529/01, § 103 et seq. , ECHR 2006 ‑ VII; and Herbst v. Germany , no. 20027/02, § 64 et seq. , 11 January 2007, for the exception of complaints under Articles 6 § 1 and 13 about the excessive length of civil proceedings ). I n view of the seriousness of the complaint and being mindful that Article 35 must be applied to reflect the practical realities of the applicant ’ s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see Hilal v. the United Kingdom ( dec. ), no. 45276/99, 8 February 2000) , the Court deems it nevertheless appropriate to consider whether the applicants complied with the requirement to properly exhaust domestic remedies (Article 35 §§ 1 and 4 of the Convention).

The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. That rule is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 ‑ V ). However, an applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case-law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail. The existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see NA. v. the United Kingdom , no. 25904/07, § 89, 17 July 2008) .

The Court will accordingly consider whether a constitutional complaint against the Court of Appeal ’ s decision would have been bound to fail. In doing so, the Court takes into account the personal circumstances of the applicants as well as the general legal context of the Contracting State in which the legal remedies in question operate (compare, mutatis mutandis , Akdivar and Others v. Turkey , 16 September 1996, § 68, Reports of Judgments and Decisions 1996 ‑ IV) .

As regards the personal circumstances of the applicants, the Court observes that they were represented by a German lawyer before the Court of Appeal and that it would have been thus possible for them to lodge a constitutional complaint in compliance with the procedural requirements under German law.

As regards the legal context in which a constitutional complaint would have operated in the applicants ’ case, the Court first notes that the decision to dismiss as inadmissible the applicants ’ request for a decision may have resulted in a constitutional complaint being declared inadmissible by the Federal Constitutional Court for non-exhaustion of legal remedies. The Court further notes that the Federal Constitutional Court quashed decisions of Courts of Appeal dismissing a request for a decision in which a too formalistic handling of the admissibility criteria had resulted in a violation of the applicants ’ right of access to a court.

The Court reiterates in this regard that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Court ’ s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention. This applies in particular to the interpretation by courts of rules of a procedural nature (see Christodoulou v. Greece , no. 514/07 , § 20, 16 July 2009). T he Court may accordingly not substitute itself for the Federal Constitutional Court and is therefore not in a position to exclude the possibility that the Federal Constitutional Court would have accepted the applicants ’ constitutional complaint for adjudication in view of a too formalistic application of the admissibility criteria by the Court of Appeal.

It follows that despite doubts as to the prospects of success of a constitutional complaint in the circumstances of the present case, the Court cannot conclude that such a complaint would have been bound to fail.

In view of these considerations, and absent special circumstances absolving the applicants from the requirement to properly exhaust domestic remedies, i t follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicants further complained under Article 3 about the time it took for them to be informed about their son ’ s death.

Article 3 reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court notes that the applicants did not lodge a constitutional complaint. For the same reasons as stated above as regards the complaint under Article 2, it follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court by a majority

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President