Declaring part of a suspended prison sentence as served constituted sufficient redress for excessively long proceedings


Chiarello v. Germany  20-06-2019 (no. 497/17)

see here


Exceeding the length of the criminal proceedings. The Court found that the applicant could no longer claim to have been a “victim” within the meaning of Article 34 of the Convention, given that part of the suspended prison sentence wascharacterised by the Court as a penalty. This measure constituted sufficient rehabilitation for exceeding the reasonable time of the criminal proceedings. No violation of Article 6 § 1 (right to a fair trial within a reasonable time) of the ECHR.


Article 6 par. 1


The applicant, Gaetano Chiarello, is a German national who was born in 1977 and lives in Überherrn

Mr Chiarello worked as a prison guard in Saarbrücken. In January 2008, the police questioned him
about a mobile telephone that had been smuggled into the prison in December 2006. In May 2008
he was accused of accepting a bribe of 200 euros (EUR), smuggling the telephone into the prison and
of providing it to an inmate.

In January 2010 the main proceedings against Mr Chiarello were instituted before the District Court.
After 14 hearings the court convicted him of taking a bribe and sentenced him to one year and four
months’ imprisonment, suspended on probation.

The applicant appealed, and the Regional Court acquitted him in November 2011. The public
prosecutor lodged an appeal on points of law. In January 2013 the Court of Appeal set the judgment
of the Regional Court aside and remitted the matter to the Regional Court.

New appeal proceedings commenced and in April 2015 the Regional Court found Mr Chiarello guilty
of taking a bribe and sentenced him to eight months’ imprisonment. However, it suspended the
sentence, put him on probation and declared that three months had been served owing to the
excessively long proceedings.

Mr Chiarello filed an appeal on points of law that was dismissed by the Court of Appeal in April 2016.
His subsequent complaint of a violation of his right to be heard was to no avail either. He then
lodged a constitutional complaint. In July 2016 the Federal Constitutional Court decided not to admit
it for adjudication.


Article 6 § 1

The Court reiterated that an assessment of whether proceedings were of a reasonable length took
place in the light of the circumstances of each case, in particular its complexity, the applicant’s
conduct and that of the authorities and the importance of what was at stake for the applicant.
The Court found that the criminal proceedings in the applicant’s case had lasted eight years and five
months at four levels of jurisdiction.

As to whether that was reasonable, the Court in particular noted that Mr Chiarello’s case had
involved seven co-defendants, all represented by counsel, and the comprehensive taking of
evidence. Mr Chiarello had not been remanded in custody and a severe sentence had not been at
stake, although the proceedings had had considerable implications for him as his employment as a
civil servant had been at stake.

The Court found that the overall length of the proceedings had not been excessive and could still be
considered reasonable within the meaning of Article 6 § 1. However, there had been a period of
prolonged inactivity between January 2013 and February 2015.

The Court noted that the Regional Court had expressly acknowledged that the criminal proceedings
had been excessively long on account of that prolonged inactivity, although Mr Chiarello had not
been awarded compensation, nor had the proceedings been discontinued owing to their
unreasonable length.

However, the Regional Court had counted three months of his sentence as having been served, a
form of compensation which would have come into effect if the suspension of his sentence had been
revoked, something in turn which would have occurred if he had committed an offence during the
probation period. Nevertheless, such a form of compensation was not theoretical but had mitigated
the threat of imprisonment, reducing it from eight to five months, thus in an express and
measurable manner.

In those circumstances the Court concluded that declaring three months of Mr Chiarello’s suspended
prison sentence as having been served had constituted sufficient and adequate redress. Accordingly,
there had been no violation of Article 6 § 1.(


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