The Court did not acquit a member of the SS who was accused of being involved in 300,000 murders!
JUDGMENT
Gröning v. Germany 2.11.2020 (app. no. 71591/17)
SUMMARY
The case concerned a complaint by a former member of the SS about the length of the criminal
proceedings against him for assisting in murder in the Auschwitz extermination camp.
The applicant was questioned in 1978 while being investigated by the Frankfurt public prosecutor’s
office for crimes committed when serving in the Auschwitz extermination camp. The investigation
was discontinued in 1985. The applicant was questioned again in 2014 after the the Hannover public
prosecutor’s office initiated an investigation and he was convicted in 2015. He argued that the
proceedings had been running since 1978 because the authorities had failed to notify him of the
discontinuation decision in 1985, making the proceedings excessively lengthy.
The Court ruled, however, that there had been two sets of criminal proceedings against the
applicant, the first ending in 1985 at the latest and the second ending in 2016, when the conviction
had become final. Although the authorities had failed to notify the applicant of the decision to
discontinue the investigation in 1985, it considered that he had known from then on that he no
longer had to fear criminal prosecution, in particular due to remarks by a senior public prosecutor
that he had only been of interest as a witness for the prosecution.
The applicant’s complaint concerning the first set of proceedings had therefore clearly been lodged
out of time, while his complaint in respect of the second set of proceedings, lasting only two years
for a case of historical and legal complexity, had been ill-founded.
PROVISION
Article 6
PRINCIPAL FACTS
The applicant, Oskar Gröning, was a German national who was born in 1921 and died on 9 March
2018.
From September 1942 until October 1944 Mr Gröning served in the Auschwitz extermination camp
as part of a unit which administered the victims’ belongings. He was mostly assigned to work at “the
ramp” where the deported were “selected”: either sent to the concentration camp or to the gas
chamber. He was not directly involved in the selection process but was responsible for collecting and
securing luggage and other belongings. Between May 1944 and July 1944 approximately 300,000
Hungarian Jews were killed in the gas chamber.
In 1977 the Frankfurt public prosecutor’s office initiated an investigation against Mr Gröning on
suspicion of assisting in murder in his time at Auschwitz. In January 1978 he was questioned by the
police. In 1985 the investigation proceedings were discontinued because there were insufficient
grounds to bring charges. Mr Gröning was not notified of the decision.
In November 2013 the Hannover public prosecutor’s office initiated an investigation. In February
2014 it questioned Mr Gröning and subsequently charged him with 300,000 counts of aiding and
abetting murder in Auschwitz. On 15 July 2015, after a four-month trial, the Regional Court
sentenced him to a prison term of four years. It did not allow his sole objection that the proceedings
had not been compatible with the reasonable-time requirement of Article 6 § 1 (right to a fair trial
within a reasonable time) of the European Convention. It considered in particular that discontinued
proceedings could not count as being lengthy.
In October 2015 Mr Gröning lodged an appeal on points of law but it was rejected as manifestly
ill-founded in September 2016. The Federal Constitutional Court subsequently decided not to accept
his constitutional complaint for adjudication.
Relying on Article 6 § 1, the applicant argued that the length of the criminal proceedings against him,
lasting from 1978 to 2016, had been excessive.
THE DECISION OF THE COURT….
The Court first reiterated that one of the purposes of the right to a fair trial within a reasonable time
was to protect an accused from remaining too long in a state of uncertainty about their legal
position. That meant that the period to be taken into consideration lasted until the person
concerned had ceased to be affected by the charges levelled against him or her and the uncertainty
about their legal position had been removed.
The investigation in the applicant’s case had been discontinued in 1985, but the authorities had
failed to notify him of that decision. That decision had not therefore ended the period which had
begun with his questioning in 1978.
However, that did not prevent the Court from looking at whether the uncertainty of his position had
been removed by other factors.
In particular, 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.
Moreover, there were several indications that the applicant had known that he no longer had to fear
criminal prosecution as of 1985, in particular due to remarks made by the senior public prosecutor in
charge of the prior proceedings that he had only been of interest as a witness for the prosecution.
Indeed, the applicant’s conduct between 1985 and 2013 showed that he had trusted in the senior
public prosecutor’s remarks. He had testified as a witness in criminal proceedings against
perpetrators from the extermination camps and had openly talked about his role in the camp during
interviews for British television and a German newspaper. That interpretation was also consistent
with a statement by the public prosecutor who had attended the applicant’s trial, quoting him as
saying that he had never realised that he had been an accused.
The Court thus concluded that the applicant had ceased to be affected by the charges levelled
against him by the end of 1985, at the latest, meaning that there had been two sets of criminal
proceedings against him.
The part of the application concerning the first set of proceedings, beginning in 1978 and ending in
1985 at the latest, was clearly outside of the Court’s six-month time-limit and was declared
inadmissible.
The second set of proceedings had begun in 2014 and ended in 2016, the date of the Federal Court
of Justice’s decision to reject the applicant’s appeal. The authorities’ conduct had not apparently
caused any delays in the proceedings. Taking into account the complexity of the case, involving
sensitive and intricate questions of a historical and legal nature, and especially the criminal charges
of aiding and abetting 300,000 counts of murder, the Court found that the duration of the
proceedings had not been excessive. That part of the application was therefore also declared
inadmissible, as manifestly ill-founded.
