Resolution CM/ ResDH (2010)52 [1]

Execution of the judgment of the European Court of Human Rights

Kaemena and Thöneböhn against Germany

(Application Nos. 45749/06 and 51115/06 , judgment of 22 January 2009, final on 22 April 2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the excessive length of criminal proceedings in particular before the Federal Constitutional Court (violation of Article 6, paragraph 1) and lack of an effective remedy in this respect (violation of Article 13) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of the case.

Appendix to Resolution CM/ ResDH (2010)52

Information about the measures to comply with the judgment in the case of

Kaemena and Thöneböhn against Germany

Introductory case summary

The case concerns the excessive length of criminal proceedings against the applicants (violation of Article 6§1).

The applicants were convicted of murder in joint criminal proceedings, which began on 9/05/1996 and ended on 5/07/2006 with the judgment imposing a life sentence. The proceedings thus lasted 10 years and almost 2 months. The European Court found that substantial periods of delay occurred while the case was pending before the Federal Constitutional Court (more than 6 years and one month) (§§ 62 and 64 of the judgment).

Moreover, the European Court considered that, in the particular circumstances of their case, the applicants had not had at their disposal an effective remedy capable of affording redress for a violation of the reasonable-time requirement (violation of Article 13).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

6 000 EUR

8 000 EUR

14 000 EUR

Paid on 20/07/2009

b) Individual measures

The proceedings are closed. The European Court awarded the applicants just satisfaction in respect of non-pecuniary damage sustained. Consequently, no other individual measure was considered necessary.

II. General measures

1) Violation of Article 6§1 : The German authorities submitted that the violation resulted from the particular workload of the Federal Constitutional Court at the material time, which in the meantime had been redressed by establishing an additional registry and recruiting additional legal officers. Moreover, a simplified procedure had been introduced, according to which decisions are taken by a chamber composed of three judges (§§ 93b, c and d of the Federal Constitutional Court Act).

2) Violation of Article 13 : By a decision of 17/01/2008 the Federal Court of Justice changed its case-law, affording redress for excessive length of proceedings in cases in which a mandatory life sentence is imposed in such a way that a specified part of the life sentence - which is enforced for at least fifteen years - had to be considered as having been served (so called “execution approach”, “ Vollstreckungslösung ”; §§ 50-54, 76 and 86 of the judgment). The European Court welcomed this reversal of case-law (§ 87 of the judgment), which, however, was not applicable to the applicants as it was introduced after their conviction.

3) Publication and dissemination: The European Court ’ s judgment has been transmitted to the courts directly concerned and to the Ministries of Justice of the Länder . It was published in various law journals ( Strafverteidiger , 10/2009, p. 561; and Newsletter Menschenrechte 1/2009, p. 26). The judgment will also be included in the Ministry of Justice ’ s Report of the case-law of the European Court for Human Rights and the execution of its judgments in proceedings against the Republic of Germany in 2009 .

All judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice ( www.bmj.de , Menschenrechte , EGMR) which provides a direct link to the European Court ’ s website for judgments in German ( www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch/ ).

III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Germany has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 3 June 2010 at the 1086th meeting of the Ministers’ Deputies