Information Note on the Court’s case-law 230

June 2019

Chiarello v. Germany - 497/17

Judgment 20.6.2019 [Section V]

Article 34

Victim

Three months of suspended prison sentence declared as served following acknowledgment that criminal proceedings had been excessively long: loss of victim status

Facts – The applicant, a prison officer, was convicted for taking bribes and sentenced to a sus pended prison sentence of eight months. The domestic court declared as “served” three months of the prison sentence, owing to delays in the criminal proceedings.

Law – Article 6 § 1: The Government argued that in so far as the domestic courts had already f ound a delay in the proceedings, the excessively long duration of the proceedings had already been acknowledged and redressed. The issue of whether the applicant had been deprived of his status as a victim within the meaning of Article 34 was closely linke d to the question raised with respect to his complaint under Article 6 § 1 about the length of the proceedings and, as such, was joined to the merits.

The criminal proceedings had lasted eight years and five months at four levels of jurisdiction, with one remittal from the Court of Appeal to the Regional Court. Concerning the reasonableness of that period, the Court firstly noted that the applicant’s case was not particularly complex. However, it involved seven co-defendants, all represented by defence coun sel, and comprehensive taking of evidence, which included recordings of telecommunication surveillance. The large number of co-defendants and the amount of evidence contributed to the long period between the indictment and the first hearing. That period ha d been prolonged by an appeal lodged by one co-defendant against a refusal to appoint a particular lawyer. While that delay could not be attributed to the applicant’s conduct, nor could it be held against the Government. The applicant had not been remanded in custody at any time and a severe sentence had not been at stake. However, the proceedings had had considerable social implications for the applicant, as his employment as a civil servant was at stake.

Having regard to the course of the proceedings, the only period of prolonged inactivity had been between 30 January 2013 and 11 February 2015, which had been acknowledged by the Regional Court in its judgment and by the Government. Leaving aside that period, in the light of those various factors, the overa ll duration of the proceedings had not been excessive and could still be considered reasonable within the meaning of Article 6 § 1.

A decision or measure favourable to the applicant was not in principle sufficient to deprive him of his status as a “victim” of a violation of a Convention right unless the national authorities had acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention. In cases concerning a breach of Article 6 § 1 due to the excessive length of criminal proceedings, the Court had repeatedly found that redress could notably be granted by adequately reducing the prison sentence of the person found guilty of an offence in an express and measurable manner or by discontinuing the criminal proceedi ngs on account of their excessive length. The Court had further accepted in other length-of-proceedings cases that monetary compensation could constitute redress for excessively lengthy proceedings.

The Regional Court had expressly acknowledged that the cr iminal proceedings had been excessively long. The applicant had not been rewarded any monetary compensation, nor had the criminal proceedings been discontinued due to their unreasonable length. The question therefore remained as to whether the applicant’s prison sentence had been reduced in an express and measureable manner.

Three months of the applicant’s prison sentence had been declared as having been served. The sentence had been suspended and the compensation would only be awarded if the suspension wer e revoked. It was thus conditional as the applicant would profit from the reduction of the prison sentence only in case he recommitted a criminal offence within the probation period. In the Court’s view that form of compensation was, nevertheless, not theo retical, but mitigated the threat of imprisonment, which was inherent in a conditional prison sentence, reducing it from eight to five months, and thus in an express and measurable manner. For that finding it was immaterial that the reduction did not affec t the ancillary consequences of the conditional prison sentence.

In those circumstances declaring three months of the applicant’s suspended prison sentence as having been served constituted sufficient and adequate redress.

Conclusion : no violation (unanimously).

(See also Scordino v. Italy (no. 1) [GC], 36813/97, 29 March 2006, Information Note 85 ; Ommer v. Germany (no. 1) , 10597/03 , 13 November 2008; Ščensnovičius v. Lithuania , 62663/13 , 10 July 2018; and Malkov v. Estonia , 31407/07 , 4 February 2010)

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

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