Information Note on the Court’s case-law 245

November 2020

Gröning v. Germany (dec.) - 71591/17

Decision 20.10.2020 [Section V]

Article 6

Criminal proceedings

Article 6-1

Reasonable time

Two sets of non-consecutive criminal proceedings treated as separate when assessing length, as uncertainty for accused was removed despite failure to notify discontinuation of the first set: inadmissible

Facts – The applicant ha d served in the Auschwitz extermination camp as a member of the SS, in a unit which administered the victims’ belongings. In 1977, the Frankfurt public prosecutor’s office had initiated a criminal investigation concerning the applicant and other persons on suspicion of aiding and abetting murder, in connection with their presence in the camp, and with the applicant being interviewed the following year. In March 1985, the office discontinued the investigation, although the applicant was not formally notified . In 2013, the Hannover public prosecutor’s office initiated an investigation concerning the applicant on suspicion of aiding and abetting murder in connection with his presence at the camp, questioning him in 2014. He was convicted and appealed unsuccessf ully.

The applicant argued before the Court that the length of the criminal proceedings had been excessive.

Law – Article 6 § 1

(a) Period to be taken into consideration – The applicant’s questioning as an accused marked the point at which the proceedin gs started. It was, however, in dispute whether the questioning in 1978 or the questioning in 2014 was decisive. This depended on whether the proceedings were regarded as two separate sets of proceedings or as one single set of proceedings.

Lack of notification of the discontinuation decision – In cases where an applicant had been entitled under domestic law to be served ex officio with a written copy of the decision to discontinue, the Court had found that the relevant criminal proceedings l asted until the moment that the decision had been communicated to the person concerned (see Nakhmanovich v. Russia, 55669/00 , 2 March 2006, and Borzhonov v. Russia , 18274/04 , 22 January 2009).

However, unlike in the present case, the applicants in those cases had been left in a state of complete uncertainty. In contrast, there were no reasons to believe that the applicant in the present case would not have obtained the discontinuation decision in writing if he had enquired about the state of the proceedings or if he had requested the discontinuation decision once apprised of its existence, or of information pointi ng to the absence of an intention to prosecute him. For such notification it had also been immaterial whether the reasons for the discontinuation had been given in full, as the applicant would only have been informed of the decision as such.

In another cas e, it had been sufficient that the Minister of Justice had informed the applicant that he would not be prosecuted ( X v. the Netherlands , 9433/81 , 11 December 1981). Elsewhere, a trial judge’s order to leave the charges on the file had been considered to have ended the criminal proceedings for the purposes of Article 6 of the Convention ( Withey v. the United Kingdom (dec.) 59493/00, Information Note 56 ).

The discontinuation decision taken in 1985, which had not been formally communicated to the applicant, had not ended the running of the period that had started in January 1978. Nevertheless, having regard to the circumstances of the present case and the underlying aim of Article 6, namely, to remove uncertainty concerning the legal position of an accused, the failure to comply with the domestic provisions on notification did not preclude that the uncertainty was removed by other means.

Removal of uncertainty by other means – While both investigations had concerned the applicant’s role in the functioning of the camp, they had been conducted by different public prosecutors’ offices and quite a lengthy period had elapsed between them.

Further, remark s had been made by the senior public prosecutor in charge of the prior proceedings about the applicant’s role as a witness for the prosecution. The applicant had trusted in the senior public prosecutor’s remarks: he had known that he was no longer charged with a criminal offence, but was only of interest as a witness in the prosecution. Since it was impossible to establish the exact date of those remarks, the Court concluded in favour of the applicant that he ceased to be affected as a result of the charges levelled against him by the end of 1985, at the latest. Accordingly, the first period to be taken into consideration had ended at that moment.

The Court therefore distinguished between two sets of criminal proceedings against the applicant. The first one had begun in January 1978 and ended in December 1985 at the latest. The second one had begun in February 2014 and ended in September 2016, the date of the Federal Court of Justice’s decision to reject the applicant’s appeal.

(b) Complaint regarding the le ngth of the first set of criminal proceedings – This part of the application, concerning the first set of criminal proceedings, was inadmissible for failure to comply with the six-month time-limit.

(c) Complaint regarding the length of the second set of c riminal proceedings – The Court noted the complexity of the criminal proceedings against the applicant, given the large number of very serious charges and the difficulties encountered on account of the lengthy period that had elapsed since the commission o f the acts concerned. In such cases much archive research was generally required in order to obtain documentary evidence of the allegations and sensitive and careful handling of surviving witness testimony was required. The applicant’s role in the function ing of the extermination camp had also involved sensitive and intricate questions of a historical and legal nature. This was illustrated by the evolving domestic case law, culminating in the landmark decision of the Munich Regional Court in 2011, according to which contributing to the functioning of an extermination camp was to be classified as aiding and abetting murder.

However, the second set of proceedings had lasted only from 17 February 2014 to 20 September 2016. There were no indications that the aut horities’ conduct had caused any delays in the proceedings. Taking into account all the relevant factual and legal elements of the present case, and especially the criminal charges of aiding and abetting 300,000 counts of murder, the duration of the procee dings had clearly not been excessive and the reasonable time requirement had not been breached.

Conclusion : inadmissible (manifestly ill-founded).

(See also X v. Germany, 6946/75 , 6 July 1976)

© Co uncil of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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