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(Feb 02, 2008) On August 23, 2007, the Third Criminal Panel of the German Federal Court of Justice (Bundesgerichtshof) proposed a sentencing decision to the Court's Great Panel for Criminal Matters, a procedure that is employed when a decision would constitute a significant departure from existing case law (Docket No. 3 StR 50/07, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art
=en&sid=47566001b6dd70533b8bba929dda2739&nr=41098&pos=0&anz=1
(last visited Jan. 22, 2008); Gerichtsverfassungsgesetz, repromulgated May 9, 1975, BGBl I at 1077, as amended, § 132). In this decision, the Third Criminal Panel proposes to change the manner in which sentences are reduced to compensate the convicted perpetrator for a proceeding that violated his rights due to its excessive length. According to the European Court of Human Rights (Eckle v. Germany (art. 50), judgment of June 21, 1983, 65 Eur. Ct. H. R. (Series A) at 10), such compensation is required by article 6 of the European Human Rights Convention (Nov. 4, 1950, 213 U.N.T.S. 221) and, according to the German Federal Constitutional Court, it is also required by German constitutional due process requirements (Federal Constitutional Court, Second Panel, Second Chamber, decision, Apr. 19, 1993, No. 2 BvR 1487/90).

Until now, the German courts have lived up to this compensation requirement by treating unnecessarily long proceedings as a mitigating circumstance that reduces the sentence (by analogy to § 49 of the Criminal Code, re-promulgated Nov. 13, 1998, BUNDESGESETZBLATT I at 3322, as amended). In the case at issue, the application of this principle would have reduced the sentence for aggravated arson below the statutory minimum penalty of five years in prison. For this and other reasons, the Third Criminal Panel proposed changing the sentencing practice to impose at first a sentence that truly reflects the wrongfulness of the perpetrator's conduct and then, when reducing the sentence to compensate for a lengthy trial, to declare that part of the sentence is deemed to have been served.

If approved by the Great Panel, this decision will change the German sentencing practice by making criminal penalties more stringent. Currently, reductions in the sentence that are granted as compensation for delayed trials often lower a sentence below the two-year threshold under which the execution of a sentence is routinely suspended (Criminal Code, § 56) and perpetrators of economic crimes often benefit from these circumstances, thereby avoiding serving a prison sentence. If the Great Panel accepts the decision of the Third Criminal Panel, perpetrators of economic crimes will have to serve their prison sentences more often (BGH will härtere Strafen für Wirtschaftsdelikte, FRANKFURTER ALLGEMEINE ZEITUNG, Nov. 16, 2007, at 11).

Author: Edith Palmer More by this author
Topic: Crime and law enforcement More on this topic
Jurisdiction: Germany More about this jurisdiction

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Last updated: 02/02/2008