Implementation of Judgments of the ECtHR in the Area of Criminal Law and Criminal Procedure Law from a German Perspective

The jurisprudence of the European Court of Human Rights (ECtHR) has become more and more important – especially in criminal matters. In order to illustrate the implementation of the ECtHR’s jurisprudence in the area of German criminal and criminal procedure law, the present article aims to shed a light on recent judgments and developments. \nThe first example concerns the provocation of unlawful acts by public authorities which raises serious issues with regard to Article 6 para. 1 ECHR (right to a fair trial). According to the ECtHR, the mere passive investigation of criminal activities does not violate Article 6 para. 1 ECHR. On the other hand, public authorities are not entitled to “incite” a person to commit a crime. In these cases, meaning if the suspect has been under an illicit influence amounting to an unfair trial, it is necessary to analyse the concrete legal consequences. In Furcht v. Germany, only a few years ago, the ECtHR rejected the so-called “sentencing solution” (Vollstreckungslösung) which had been common practice in Germany until then. In the following, the implementation of the Court’s guidelines led to a controversy between the criminal divisions of the German Federal Court of Justice (Bundesgerichtshof – BGH) which shall be outlined in further detail. \nMoreover, the jurisprudence of the ECtHR gave rise to several amendments of the German Code of Criminal Procedure (Strafprozessordnung – StPO). For example, the judgment of the ECtHR in Neziraj v. Germany led to a modification of Section 329 StPO which allowed the rejection of an appeal (Berufung) if the defendant was absent at the beginning of the main hearing. Another example concerns the access of the suspect and the defence counsel to procedural documents (Section 147 StPO). \nFinally, the author will examine the impact of the ECHR – notably the presumption of innocence (Article 6 para. 2 ECHR) – on substantive criminal law. \nAs a conclusion, all these cases illustrate that German criminal courts have repeatedly struggled with the implementation of the ECtHR jurisdiction in the past few years. However, the author points out that there seems to be a slightly changing tendency towards a rather proactive adaption of human rights standards as established by the ECtHR

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