KALETSCH proti Německu

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31890/06
by Frank KALETSCH
against Germany

The European Court of Human Rights (Fifth Section), sitting on 23 June 2009 as a Chamber composed of:

Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Renate Jaeger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 2 August 2006,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Frank Kaletsch, is a German national who was born in 1966 and lives in Fernwald-Annerod. He was represented before the Court by Mr J. Pauly, a lawyer practising in Frankfurt/Main.

A. The circumstances of the case

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

1. Background to the case

In 1991 the applicant was convicted of drug trafficking and sentenced to four years’ imprisonment. On 16 June 1993 the remainder of the sentence was suspended and the applicant released on probation.

As of 12 November 1993 the police investigated the applicant, suspecting a violation of the Narcotics Act (Betäubungsmittelgesetz) because of chemical purchases by the applicant on a large scale.

2. Pre-trial investigations

On 16 November 1993 the Gieβen District Court issued a search warrant relating to the applicant’s parents’ house, where he was then living, and ordered telephone surveillance measures. The court based its decisions on the suspicion of a violation of the Narcotics Act on the ground that the chemicals purchased by the applicant could be used to manufacture narcotics covered by the Narcotics Act.

In file notes dated 14 March 1994, 11 April 1994 and 26 May 1994 the investigators observed that it seemed that the applicant wanted to use the chemicals to manufacture new designer drugs not covered by the Narcotics Act. It was further observed that the new designer drugs might, however, fall within the scope of the Medicines Act (Arzneimittelgesetz) and its penal provisions.

On 19 July 1994 the applicant was arrested and subsequently remanded into custody.

On 19 and 20 July 1994 the house of the applicant’s parents was searched with the applicant’s consent on the basis of the search warrant issued on 16 November 1993. Chemicals found in the course of the search were seized with the applicant’s consent.

The applicant was questioned on 19 July 1994 and accused of a violation of the Narcotics Act. He remained silent and instead referred to a protective letter (Schutzschrift) he was carrying with him at the time of his arrest, in which he claimed that the use of the chemicals was purely for scientific purposes. In this letter he stated inter alia:

“2) Medicinal Products of the Medicines Act are o n l y those substances and preparations which are authorised as medicinal products or registered or are exempted from the need for authorisation or registration by ordinance (section 2 (4) Medicines Act) ...”

On 20 July 1994, after having heard the applicant, the Gieβen District Court issued an arrest warrant. The applicant remained in pre-trial custody until 31 October 1994, when the enforcement of the arrest warrant was suspended. On 7 March 1995 the arrest warrant was rescinded.

The pre-trial investigations were closed on 6 September 1994.

3. Intermediate proceedings (Zwischenverfahren)

On 6 February 1995 the applicant was charged with two violations of the Medicines Act and two violations of the Narcotics Act.

On 23 February 1995 the indictment was served on the applicant’s defence lawyer.

On 8 August 1995 the defence lawyer requested the Gieβen Regional Court not to open the main proceedings.

On 2 January 1996 the Gieβen Regional Court declined to open the main proceedings.

On 22 January 1996 the prosecution submitted grounds for its appeal against the decision of 2 January 1996 to the Frankfurt Court of Appeal.

On 26 March 1996 and 9 April 1996 respectively the applicant himself and his defence lawyer filed submissions.

On 22 May 1996 the Frankfurt Court of Appeal directed the Gieβen Regional Court to open the main proceedings with regard to the alleged violations of the Medicines Act.

On 29 July 1996 the prosecution submitted a revised indictment, charging the applicant with the manufacture of medicinal products without authorisation in two cases, in one case in conjunction with placing on the market (Inverkehrbringen) unsafe medicinal products.

4. First set of proceedings

On 4 September 1996 the Gieβen Regional Court fixed the date of the trial for 4 February 1997, after the defence lawyer had indicated that he was tied up with business on the Regional Court’s regular trial days from October to December 1996, and since another case had already been scheduled for January 1997.

The trial on 4 February 1997 ended with the acquittal of the applicant. The Gieβen Regional Court argued that the manufactured substance, Methyl-Methaqualon, did not constitute a medicinal product as defined in section 2 § 1 no. 5 of the Medicines Act. With regard to the other substance, N-Methyl-3, 4-Mehylendioxyphenylbutanamin-2 (“MBDB”), the court reasoned that it could not be ruled out that it only constituted an intermediate (Zwischenprodukt) which did not fall within the scope of the Medicines Act.

The prosecution appealed the judgment and on 2 April 1997 submitted grounds for its appeal on points of law.

On 19 November 1997 the Federal Court of Justice held a hearing.

On 3 December 1997 the Federal Court of Justice set aside the judgment of the Gieβen Regional Court. The Federal Court of Justice argued that the Regional Court had applied an incorrect definition of “medicinal product”; Methyl-Methaqualon did in fact constitute a medicinal product as defined in section 2 § 1 no. 5 of the Medicines Act. If, as in the case at hand, the purpose of the substance could not be derived from objective criteria, consumer expectation or scientific assessment, the point of reference had to be the purpose pursued by the manufacturer, which in this case was the applicant’s intention to develop substances with the same or similar effects as narcotic substances without falling within the scope of the Narcotics Act as described in his protective letter. With regard to the substance MBDB the Federal Court of Justice argued that the development of an intermediate product could suffice for the alleged offence under the Medicines Act.

5. Proceedings after the first remittal

In January 1998 the files were referred back to the Gieβen Regional Court.

On 17 April 2001 the trial was listed for 18 September 2001 and 25 September 2001.

After the defence lawyer had indicated that he would not be able to attend the trial on 25 September 2001 the dates were changed to 21 September 2001 and 28 September 2001.

During the trial on 21 September 2001 the defence lawyer, referring to the recent case-law of the Federal Constitutional Court, objected to the use of the evidence found during the search of the applicant’s parents’ house since the search warrant had been more than six months old at the time of its execution (see relevant domestic law and practice below).

On 28 September 2001 the trial ended with the sentencing of the applicant to a cumulative prison sentence (Gesamtfreiheitsstrafe) of one year suspended on probation.

The applicant gave notice of his intention to appeal on points of law and submitted his statement of the grounds of appeal on 4 December 2001. He raised the issue of the length of the proceedings and challenged the use of the evidence found during the search of his parents’ house.

On 3 January 2002 the prosecution filed a counterstatement (Gegenerklärung).

On 15 March 2002 the attorney general (Generalbundesanwalt) filed a motion to dismiss the appeal with regard to the verdict (Schuldspruch) but, because of the length of the proceedings, to set aside the sentence (Strafausspruch) and remit the case in this respect.

On 2 April 2002 the applicant himself submitted another statement.

On 26 April 2002 the Federal Court of Justice dismissed the appeal on points of law with regard to the verdict, set aside the sentence and remitted the case to the Gieβen Regional Court for sentencing.

6. Proceedings after the second remittal

On 24 October 2002, following a trial hearing, the Gieβen Regional Court fixed two separate sentences of 7 months’ and 5 months’ imprisonment and imposed a cumulative suspended prison sentence of nine months for the manufacture of medicinal products without authorisation in two cases and a fine of EUR 1,000 as a condition of probation (Bewährungsauflage). In its reasoning regarding the sentence (Strafzumessung) the Regional Court expressly took into consideration the length of the proceedings.

On 17 December 2002 the applicant himself and on 20 December 2002 his defence lawyer appealed on points of law against this judgment, arguing that the proceedings should be discontinued because of the excessive length of the proceedings violating Article 6 of the Convention.

On 6 February 2003 the attorney general filed a motion to dismiss the appeal.

On 27 February 2003 the applicant filed a reply.

On 19 March 2003 the Federal Court of Justice set aside the sentence and once again remitted the case to the Gieβen Regional Court. The Federal Court of Justice argued that the judgment did not distinguish between the penalty which would have been adequate without considering the length of the proceedings and the sentence actually imposed, which had been reduced in view of the length of the proceedings.

7. Proceedings after the third remittal

At the end of April 2003 the files were referred back to the Gieβen Regional Court. Because the schedule of responsibilities (Geschäftsverteilungsplan) of the Regional Court did not provide for a third remittal, another criminal division (Strafkammer) was established on 22 May 2003.

On 18 June 2003 the main lay judges (Hauptschöffen) for the newly established criminal division were drawn by lot.

On 25 June 2003 a trial date was set for 9 July 2003.

On 4 July 2003 the defence lawyer complained about the composition of the court, arguing that the judges should have been drawn by lot.

On 8 July 2003 the Regional Court dismissed the complaint.

On 9 July 2003 the Regional Court imposed a cumulative suspended sentence of eight months for the manufacture of medicinal products without authorisation in two cases and a fine of EUR 1,000 as a condition of probation. In its reasoning regarding the sentence the Regional Court expressly acknowledged a violation of Article 6 § 1 of the Convention and in view of this reduced the adequate separate sentences of nine and six months’ imprisonment by one third to six and four months’ and the adequate cumulative sentence of one year’s imprisonment to eight months’ imprisonment.

On 12 August 2003 the written judgment was put on file; on 13 August 2003 it was served on the defence lawyer.

On 25 August 2003 the defence lawyer submitted grounds of appeal on points of law. He again raised the issue of the length of the proceedings.

On 4 September 2003 the prosecution filed a counterstatement.

On 12 September 2003 the applicant filed an appeal on points of law.

Because of a signature mistake new executed copies of the judgment were issued on 16 September 2003 and served on the defence lawyer on 7 October 2003.

On 6 November 2003 the applicant submitted further reasons for the appeal on points of law.

On 2 December 2003 the attorney general filed a motion to dismiss the appeal.

On 3 March 2004 the Federal Court of Justice dismissed the appeal without giving reasons.

8. Proceedings before the Federal Constitutional Court

On 20 June 2002 the applicant lodged a first constitutional complaint with the Federal Constitutional Court against the judgment of the Federal Court of Justice of 3 December 1997, the judgment of the Gieβen Regional Court of 28 September 2001 and the decision of the Federal Court of Justice of 26 April 2002. In his constitutional complaint the applicant challenged the alleged lack of legal certainty of the penal provisions of the Medicines Act in connection with the definition of “medicinal product”, the search of his parents’ house on the basis of an eight-month-old search warrant and the subsequent use of the evidence obtained in the course of this search, and the length of the then still pending proceedings.

On 8 May 2003 the applicant lodged a second constitutional complaint against the judgment of the Federal Court of Justice of 19 March 2003 and the judgment of the Gieβen Regional Court of 24 October 2002, again raising the issue of the length of the proceedings.

On 14 April 2004 the applicant lodged a final constitutional complaint against the judgment of the Gieβen Regional Court of 9 July 2003 and the decision of the Federal Court of Justice of 3 March 2004, arguing that the reduction of the sentence was not sufficient compensation for the excessive length of the proceedings.

On 16 March 2006 the Federal Constitutional Court refused to admit the applicant’s three constitutional complaints for examination on the ground that they were ill-founded (file no. 2 BvR 954/02). The Federal Constitutional Court denied a lack of legal certainty with regard to the penal provisions of the Medicines Act. The Federal Constitutional Court expressly acknowledged a violation of Article 13 of the Basic Law (inviolability of the home) by the execution of the search warrant eight months after its issue. However, the court argued that the judgment had not been based on this violation because in the case at hand the violation of Article 13 of the Basic Law did not entail the exclusion of the evidence obtained. The exclusion of evidence could only be considered if the procedural defects were severe, intentional or arbitrary. In the case at hand there was no intentional violation since it was only three years after the search that the Federal Constitutional Court had established a “date of expiry” for search warrants. The Federal Constitutional Court further argued that the overall length of the proceedings, while too long, was no reason for a discontinuation of the proceedings as submitted by the applicant. It rather had to be left to the lower courts to remedy an excessive length of the proceedings by reducing the sentence.

On 13 April 2006 the Federal Constitutional Court’s decision was served on the applicant’s lawyer.

B. Relevant domestic law and practice

1. Relevant provision of the Basic Law

Article 13 of the Basic Law (Grundgesetz), dealing with the inviolability of the home, prescribes in its paragraph 2 that a search of premises may - in principle - only be ordered by a judge.

In its decision of 27 May 1997 (file no. 2 BvR 1992/92) the Federal Constitutional Court held that this requirement of a judicial order (Richtervorbehalt) implied that a search warrant must be executed within six months of its issue. After six months the judicial search warrant loses its vindicatory power and the search then constitutes a violation of Article 13 of the Basic Law.

2. Relevant provisions of the Medicines Act

Section 2

“The term ‘medicinal product’

(1) Medicinal products are substances and preparations made from substances which, by application on or in the human or animal body, are intended (...)

5. to influence either the nature, the state or the functions of the body or mental health conditions. (...)

(4) As long as a product is authorised or registered as a medicinal product pursuant to the present Act, or is exempted from the need for authorisation or registration by ordinance, such product shall be considered a medicinal product. A product shall not
be considered a medicinal product if its authorisation or registration has been rejected by the competent Higher Federal Authority, on the ground that it is not a medicinal product.”

Section 5

“Prohibition of unsafe medicinal products

(1) The placing on the market of unsafe medicinal products shall be prohibited.

(2) Medicinal products shall be considered unsafe if, according to the current level of scientific knowledge, there is reason to suspect that, when used in accordance with their intended purpose, they have harmful effects which exceed the limits considered tolerable in the light of current medical knowledge.”

Section 13

“Manufacturing authorisation

(1) Any person wishing to manufacture medicinal products within the meaning of section 2 sub-section 1 or sub-section 2 No. 1 ... on a commercial or professional basis for the purpose of dispensing to others, shall require an authorisation by the competent authority. ... Distribution to others, in the meaning of the first sentence, shall exist if the person manufacturing the medicinal product is not the same as the person using it. ...”

Section 95

“Penal provisions

(1) Any person who

1. contrary to section 5, ... , markets medicinal products suspected on reasonable grounds of being capable of causing harmful effects, ... shall be liable to imprisonment for a term not exceeding three years or to a fine.”

Section 96

“Penal Provisions

Any person who ...

4. in breach of Section 13 sub-section 1, manufactures medicinal products within the meaning of Section 2 sub-section 1 ... without authorisation, ...,

shall be liable to imprisonment for a term not exceeding one year or to a fine.”

COMPLAINTS

1. The applicant complained that the execution of the judicial search warrant more than six months after its issue had violated his rights under Article 8 of the Convention.
2. The applicant complained under Article 6 § 1 of the Convention that the use at his trial of the evidence obtained during the search of his home had violated his rights, since the search warrant had lost its vindicatory power in the course of time and the search of his home had therefore constituted a breach of Article 8 of the Convention.
3. The applicant further complained under Article 6 § 1 of the Convention that the length of the criminal proceedings had been excessive.
4. Finally, the applicant complained under Article 7 of the Convention that the German courts had interpreted the concept of “medicinal product” with regard to the penal provisions of the Medicines Act in an unforeseeable manner.

THE LAW

1. Alleged violation of Article 8 of the Convention

The applicant complained under Article 8 of the Convention that the search warrant had been executed eight months after its issue, submitting that this constituted a violation of his home as protected by Article 8 of the Convention. Article 8 of the Convention, in so far as relevant, provides:

“1. Everyone has the right to respect for his private ... life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court finds that the search of the applicant’s home constituted an interference with his rights under Article 8 of the Convention.

In determining whether this interference was justified under Article 8 § 2 of the Convention, notably whether it was “in accordance with the law” the Court notes that while the search was carried out on the basis of a search warrant as prescribed by Article 13 of the Basic Law, at the time of execution of the search warrant some eight months had passed since its issue and hence since a judicial review. As expressly acknowledged by the Federal Constitutional Court in its decision of 16 March 2006, this constituted a breach of Article 13 of the Basic Law because the search warrant had lost its vindicatory power in the course of time. It therefore follows, that the search was not “in accordance with the law” pursuant to Article 8 § 2 of the Convention and consequently amounts to a violation of Article 8. In the light of this conclusion, the Court is not required to determine whether the interference was “necessary in a democratic society” for one of the aims enumerated in paragraph 2 of Article 8.

Turning to the question whether the applicant can still claim to be a victim, the Court reiterates that an applicant is deprived of his status as a “victim” if the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Eckle v. Germany, 15 July 1982, § 66, Series A no. 51). As mentioned above (see A. 8. of the Facts above), the Federal Constitutional Court in its decision of 16 March 2006 expressly acknowledged a breach of Article 13 of the Basic Law and hence of the right to respect for the applicant’s home as protected by Article 8 of the Convention.

In the Court’s view this finding in itself afforded adequate redress to the applicant for the breach of the Convention in the circumstances of the present case. In this context the Court observes that the applicant consented to the search of his home and subsequently never sought redress because of the search of his house or alleged any damage suffered by the execution of the search warrant. The applicant did not even lodge a complaint against the search warrant at the time. He only contended that evidence obtained in breach of Article 13 of the Basic Law and Article 8 of the Convention could not be used against him. While the Court observes that its case-law does not contain an automatic rule of exclusion of evidence obtained in consequence of a breach of Article 8 (see for example Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V and Bykov v. Russia [GC], no. 4378/02, §§ 88-91 and §§ 94-98, 10 March 2009), this question must be left for an examination under Article 6 of the Convention.

It follows that this part of the application must be declared inadmissible pursuant to Article 35 of the Convention as the applicant can no longer claim to be a victim.

2. Alleged violation of Article 6 § 1 (use of evidence obtained in breach of Article 8 of the Convention)

The applicant complained that the use at his trial of the evidence obtained in execution of an eight-month-old search warrant had violated his right to a fair trial guaranteed by Article 6 § 1 of the Convention, which, as far as relevant, reads as follows:

In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing...

The Court reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law. It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question and, where violation of another Convention right is concerned, the nature of the violation found. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence were respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (see Khan, cited above, § 34, and Bykov v. Russia, cited above, §§ 88-90).

As regards, in particular, the examination of the nature of the Convention violation found, the Court observes that notably in the cases of Khan (cited above, §§ 25-28 and §§ 34-40) and P.G. and J.H. v. the United Kingdom (no. 44787/98, §§ 37-38 and §§ 76-81, ECHR 2001-IX) it found the use of covert listening devices to be in breach of Article 8 since recourse to such devices lacked a legal basis in domestic law and the interferences with those applicants’ right to respect for their private life were not “in accordance with the law”. Nonetheless, the admission in evidence of information obtained thereby did not in the circumstances of the cases conflict with the requirements of fairness guaranteed by Article 6 § 1 of the Convention.

In the present case the Court notes at the outset that, while the execution of the search warrant was “not in accordance with the law” within the meaning of Article 8 of the Convention (see A. above), the “unlawfulness” in the present case exclusively relates to the fact that the search warrant was eight months old at the time of its execution and that it was not until some three years after the search of the applicant’s home that the Federal Constitutional Court stipulated that search warrants have to be executed within six months of their issue – in effect fixing an expiry date. Consequently, there was no intentional breach of formal rules; rather the authorities acted in good faith since they had, as prescribed by Article 13 of the Basic Law, obtained judicial authorisation prior to the search. The Court also takes into consideration that the “date of expiry” of the search warrant had “only” been exceeded by two months. The Court further notes that the applicant explicitly consented to the search as well as to the seizure of the evidence found.

The Court next notes that the contested material in the present case was in effect the only evidence against the applicant. However, the relevance of the existence of evidence other than the contested matter depends on the circumstances of the case. In the present circumstances, where the
substances found in the applicant’s home were strong evidence, and where there was no risk of them being unreliable, the need for supporting evidence was correspondingly weaker. The circumstances in which the evidence was obtained do not cast doubt on its reliability.

Finally, the Court notes that the applicant had opportunity to challenge the use of the evidence obtained in execution of the contested search warrant and did challenge such use at all three levels of jurisdiction. The Federal Court of Justice examined the issue and noted that the applicant had consented to the search. The Federal Constitutional Court also assessed the effect of admission of the evidence on the fairness of the trial. The fact that the applicant’s challenge was in the end unsuccessful makes no difference. Had the domestic courts been of the view that the admission of the evidence would have given rise to substantive unfairness, they would have had discretion to exclude it.

Having examined the safeguards which surrounded the evaluation of the admissibility and reliability of the evidence concerned, the nature and degree of the breach, and the use to which the material obtained through the search complained of was put, the Court finds that the proceedings in the applicant’s case, considered as a whole, were not contrary to the requirements of a fair trial.

Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.

3. Alleged violation of Article 6 § 1 of the Convention (length of proceedings)

The applicant complained that the length of the criminal proceedings against him was in breach of Article 6 § 1 which, as far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

As regards the period to be taken into account under Article 6 § 1, the Court reiterates that in criminal matters the “reasonable time” referred to in Article 6 § 1 begins to run as soon as a person is “charged”; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened (see Eckle, cited above, § 73).

In the present case the period to be considered accordingly lasted from 19 July 1994, when the applicant was arrested, until 13 April 2006, when the decision of the Federal Constitutional Court was served on the applicant’s lawyer. The proceedings hence lasted some eleven years and
eight months for the investigation proceedings, the intermediate proceedings (comprising two levels of jurisdiction) and trial at three levels of jurisdiction, including three remittals.

From the facts of the case, and especially in view of the period of more than three years (from January 1998 to April 2001) during which the Regional Court was completely inactive, the Court is convinced that in the present case the length of the proceedings was not reasonable for the purposes of Article 6 § 1 of the Convention.

However, taking into consideration the reduction of the applicant’s sentence and the accompanying reasoning of the Regional Court in respect of the length of the proceedings, namely the express acknowledgement of the violation of Article 6 § 1 of the Convention, the question arises whether the applicant may still claim to be a victim of a violation of the Convention (Article 34 of the Convention).

The Court reiterates that the mitigation of a sentence on the ground of the excessive length of proceedings does not in principle deprive the individual concerned of his status as a victim within the meaning of Article 34 of the Convention. However, this general rule is subject to an exception when the national authorities have acknowledged in a sufficiently clear way the failure to observe the reasonable-time requirement and have afforded redress by reducing the sentence in an express and measurable manner (see Eckle, cited above, § 66; Beck v. Norway, no. 26390/95, § 27, 26 June 2001; and Cordier v. Germany (dec.), no. 71741/01, 19 January 2006). In such circumstances, to duplicate the domestic process with proceedings before the Court would hardly appear compatible with the subsidiary character of the machinery of protection established by the Convention. The Convention leaves to each Contracting State, in the first place, the task of securing the enjoyment of the rights and freedoms it enshrines (see T.K. and S.E. v. Finland (dec.), no. 38581/97, 16 March 2004).

Applying these principles to the present case, the Court notes that the Gieβen Regional Court explicitly acknowledged that the proceedings had lasted too long and that the applicant’s right under Article 6 of the Convention had therefore been infringed. It had accordingly gone on to reduce the two separate sentences from nine to six months’ and six to four months’ imprisonment and the cumulative sentence from one year’s to eight months’ imprisonment suspended on probation. The Court is satisfied that the reduction of the sentence was measurable and had a decisive impact on the applicant’s actual sentence. Accordingly, the applicant was afforded adequate redress for the alleged violation and can no longer claim to be a victim within the meaning of Article 34 of the Convention.

It follows that this part of the application must be declared inadmissible pursuant to Article 35 of the Convention as the applicant is no longer a victim.

4. Alleged violation of Article 7 of the Convention

The applicant complained under Article 7 § 1 of the Convention that the definition of “medicinal product” in Section 2 of the Medicines Act in connection with the penal provisions of the Medicines Act was too vague and that the domestic courts’ interpretation was unforeseeable.

Article 7 § 1 of the Convention, in so far as relevant, provides:

No one shall be held guilty of any criminal offence on account of any act ... which did not constitute a criminal offence under national ... law at the time when it was committed.

The Court reiterates that the guarantee enshrined in Article 7 is an essential element of the rule of law. It embodies, in general terms, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. From these principles it follows that an offence must be clearly defined in the law. This requirement is satisfied where an individual can know from the working of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable (see, among other authorities, Kafkaris v. Cyprus [GC], no. 21906/04, §§ 137-140, ECHR 2008‑..., and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001‑II).

The Court further observes that it is not its task to rule on the applicant’s individual responsibility, that being primarily a matter for the assessment of the domestic courts, but to consider, from the standpoint of Article 7 § 1 of the Convention, whether the applicant’s acts, at the time when they were committed, constituted an offence defined with sufficient accessibility and foreseeability (see Streletz, Kessler and Krenz, cited above, § 51).

The Court has acknowledged in its case-law that however clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see, Kafkaris, cited above, § 141). The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain (see, mutatis mutandis, Kafkaris, cited above, § 141). Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial
interpretation from case to case, “provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen” (see Streletz, Kessler and Krenz, cited above, § 50).

In the present case the applicant’s conviction was based on the domestic courts’ finding that the substances manufactured by the applicant fell within the definition of “medicinal product” in section 2 of the Medicines Act (see A.4. of the Facts above). While this definition is rather broad, its broadness does not raise an issue of legal uncertainty under Article 7 of the Convention but may call for a limiting interpretation. The Court notes in this context that the domestic courts’ interpretation of “medicinal product” in the applicant’s case was based on the wording of section 2 of the Medicines Act, did not go beyond that wording and was derived from the regulation’s aim and the prevailing conception in the eyes of the public and was therefore neither unforeseeable nor arbitrary. Also, through the careful, reasoned interpretation of the domestic courts the wide scope of section 2 of the Medicines Act and hence criminal liability was limited, not extended. Furthermore, as is clear from the protective letter he carried with him at the time of his arrest, the applicant knew that the Medicines Act might be pertinent in his case. He also did not contest that his products fell within the definition of section 2 (1) of the Medicines Act; he simply misapplied the legal provision of section 2 (4) of the Medicines Act, believing that, irrespective of the definition contained in the other subsections, a “medicinal product” had to be authorised, registered or exempt from authorisation to be classified as such a product. From the wording of section 2 of the Medicines Act, however, the applicant could have anticipated that an authorisation, registration or exemption was not a condition sine qua non for a product to be considered a medicinal product. It follows that the applicant could have reasonably foreseen his criminal prosecution and conviction.

In view of these considerations, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President