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FIFTH
SECTION
CASE OF PALJIC v. GERMANY
(Application
no. 78041/01)
JUDGMENT
STRASBOURG
1
February 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Paljic v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mr K.
Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section
Registrar,
Having
deliberated in private on 8 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 78041/01) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by, at that time, a citizen
of the State Union of Serbia and Montenegro, Mr Milos Paljic (“the
applicant”), on 18 April 2001.
- The
applicant, who had been granted legal aid, was represented by
Mr B. Schaudinn, a lawyer practising in Munich. The German
Government (“the Government”) were represented by their
Agent, Mrs A. Wittling Vogel, Ministerialdirigentin,
of the Federal Ministry of Justice.
- The
applicant alleged that his right to a fair trial as guaranteed by
Article 6 § 1 of the Convention had been violated as
the Federal Court of Justice, when dismissing his appeal on points of
law, adopted admissibility criteria which were inconsistent with that
same court's previous case-law and therefore unforeseeable to him.
- On
16 September 2004 the Court decided to give notice of the
application to the Government. On 4 March 2005 it decided under
the provisions of Article 29 § 3 of the Convention to
examine the merits of the application at the same time as its
admissibility.
- The
Government of the State Union of Serbia and Montenegro, having been
informed by the Section Registrar of their right to intervene
(Article 36 § 1 of the Convention and Rule 44 of
the Rules of Court), did not indicate any intention of doing so.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Blaichach, Germany.
1. The initial trial against the applicant
- Since
July 1990 the applicant worked as a cleaner in a home for the care of
mentally disabled persons.
- On
11 August 1994 the applicant was arrested on suspicion of having
sexually abused Ms U., a mentally disabled resident of the said home.
- On
14 February 1995 the Munich Public Prosecutor's Office charged the
applicant with having attempted to sexually abuse Ms U. twice, once
on an unspecified date at the end of 1993 or the beginning of 1994
(first charge) and a second time on 12 July 1994 (second
charge).
- On
29 February 1996 the Munich Regional Court II convicted the applicant
on two charges of sexual abuse of a person unfit to defend herself
and sentenced him to a cumulative sentence of three years'
imprisonment (one year for the first charge and two years and six
months for the second one).
- On
5 September 1996, following the applicant's appeal on points of law,
the Federal Court of Justice quashed the Regional Court's judgment
and remitted the case to a different chamber of the Munich Regional
Court. The Federal Court of Justice found that the Regional Court, in
dismissing the defence's motion to obtain another report of a
psychiatric expert, had made a procedural mistake. In view of the
fact that witness U. had abused alcohol and tablets at a period
in time prior to the offences, it was necessary to have her examined
by a medical expert in order to verify whether she suffered from a
mental illness affecting her ability to give correct evidence
(Aussagetüchtigkeit). In these circumstances, it was not
sufficient, as was done by the Regional Court, to have the witness's
credibility examined by a psychological expert.
2. The applicant's retrial
- During
an oral hearing on 15 December 1999, the sixth hearing in the case,
the Munich Regional Court II heard further witnesses. It indicated to
the parties that the offences in question could be qualified
differently in law as Ms U. had not proved unable to defend
herself. Following a short interruption of the hearing, the Regional
Court discontinued the proceedings concerning the first charge
preliminarily according to section 154 § 2 of the Code of
Criminal Procedure (see paragraph 26 below) upon a motion by the
Public Prosecutor's Office. The minutes of the hearing do not contain
any reasons given either by the Public Prosecutor's Office or by the
Regional Court for proceeding in this manner. It had not been
possible throughout the proceedings to establish the exact date on
which the offence underlying the first charge had been committed.
- On
17 December 1999 the Munich Regional Court II convicted the applicant
in respect of the remaining second charge of sexual abuse and of
bodily injury and sentenced him to two years' imprisonment suspended
on probation. The Regional Court based its judgment mainly on the
evidence given by Ms U., who was the only eye-witness to the alleged
crime. Relying on reports given by both a psychological and a
psychiatric expert, the court noted that due to her slight mental
disability, Ms U.'s ability to give correct evidence was
considerably restricted. Nevertheless, it was convinced that Ms U.'s
statements were correct. She had not reported the offence on her own
motion, but had confessed it to her partner on the same day when the
latter had noticed that she felt depressed. Her partner had then
convinced her some days later to inform the management of the home of
the incident. Numerous other signs, such as the fact that U. had not
tried unnecessarily to incriminate the applicant and had no other
motives to accuse him demonstrated that the witness was credible.
Moreover, two further female witnesses had confirmed that the
applicant had harassed them.
- In
the judgment, no reasons were given for discontinuing the proceedings
in respect of the first charge.
- On
20 December 1999 the applicant, represented by counsel, lodged an
appeal on points of law with the Federal Court of Justice, which he
reasoned on 13 March 2000. He complained, inter alia,
that there was a procedural error as no reasons for discontinuing the
proceedings in respect of the first charge emerged either from the
Public Prosecutor's request to do so or from the Regional Court's
decision to partly discontinue the proceedings or from its judgment.
However, the Regional Court had not found witness U. to be
credible in this respect, which was documented by the fact that it
had decided to discontinue the proceedings pursuant to section 154
§ 2 of the Code of Criminal Procedure. The reasons for
discontinuing the proceedings could be essential for the evaluation
of Ms U.'s credibility as both charges concerned similar
offences and were primarily based on Ms U.'s assertions. If the
Regional Court did not follow Ms U.'s testimony with respect to the
first charge, it would have been necessary to explain why that court
found the same witness's testimony to be credible with respect to the
second charge.
- On
18 April 2000 the General Public Prosecutor requested the court
to dismiss the applicant's appeal on points of law as ill-founded. He
argued in particular that no reasons had to be given for partly
discontinuing the proceedings pursuant to section 154 § 2
of the Code of Criminal Procedure.
- In
his submissions in reply dated 9 May 2000, the applicant agreed
that section 154 § 2 of the Code of Criminal Procedure
did not prescribe that reasons had to be given for the discontinuance
of the proceedings. However, failure to do so nevertheless rendered
the evaluation of evidence defective in the circumstances of the
present case.
- On
30 May 2000 the Federal Court of Justice rejected the applicant's
appeal on points of law. In respect of the said procedural error
complained of, it dismissed his appeal on points of law as
inadmissible, finding that the applicant had not sufficiently set out
the facts which were relevant for his complaint as required by
section 344 § 2 of the Code of Criminal Procedure (see
paragraph 26 below).
- The
court agreed with the applicant's submission that
“in cases in which the charges for two offences
were based on the statement of only one witness and the proceedings
were discontinued pursuant to section 154 § 2 of the
Code of Criminal Procedure in respect of one of these offences, the
reasons to do so can have evidential value for the decisive question
of the credibility of the sole witness for the prosecution; if no
grounds for discontinuing the proceedings are given, there is a lack
of reasoning (Erörterungsmangel) (see Federal Court of
Justice, Strafverteidiger (StV) 1998, pp. 580,
582).”
- However,
what had been discussed in the hearing before the Regional Court
discontinued the proceedings pursuant to section 154 § 2
of the Code of Criminal Procedure could not be known by having regard
to the text of the judgment alone, as there was no duty to mention
the discontinuance of the proceedings pursuant to that section or the
reasons therefor in the judgment. It was true that there were
judgments in which courts had set out in detail the reasons for
partly discontinuing the proceedings and the influence of that
decision on the evaluation of evidence, but this was only done if the
court saw reasons to do so.
- In
the present case, the Federal Court of Justice was unable to
ascertain on the basis of the applicant's reasoning in his appeal
alone whether there had been a procedural error assuming that the
facts submitted by him proved to be true (the court referred to its
previous decisions published in the Neue Juristische Wochenschrift
(NJW) 1995, p. 2047 and StV 1996, p. 530
in this respect).
- According
to the Federal Court of Justice,
“what is missing is a statement as to which
reasons, if any, for discontinuing the proceedings were orally
discussed during the court's hearing, because the failure to give
reasons for the discontinuance could only constitute a procedural
error if these reasons could have had an influence on the outcome of
the judgment, such as doubts about the credibility of the statements
of the only prosecution witness.”
- The
Federal Court of Justice noted that as a rule, proceedings were not
discontinued pursuant to section 154 § 2 of the Code
of Criminal Procedure without any comments, despite the fact that
there was no duty to record such statements in the minutes. If, in
exceptional circumstances, no comments were made, the appellant was
at least obliged expressly to state that the court had not given any
other grounds, such as a limitation of the offences at issue in the
proceedings for reasons of efficiency, which were irrelevant for the
evaluation of evidence.
3. The proceedings before the
Federal Constitutional Court
- On
7 September 2000 the applicant lodged a constitutional complaint with
the Federal Constitutional Court. He argued that his rights to be
heard and to a fair trial were violated as in its decision the
Federal Court of Justice had applied new admissibility criteria which
he could not have foreseen. According to the applicant, the Federal
Court of Justice, in its previous case-law, had demanded an account
of the oral statements during the hearing only if the minutes
disclosed that there had been such statements at all. Now on the
contrary, that same court asked for an account of statements which
(might) have been made in the course of the hearing and which were
not included in the record.
- On
15 October 2000 the Federal Constitutional Court, sitting as a panel
of three judges, refused to admit the applicant's constitutional
complaint. The decision was served on the applicant's counsel on
19 October 2000.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Relevant provisions of the Code of Criminal
Procedure
- The
relevant provisions of the Code of Criminal Procedure read as
follows:
Section 154 [Insignificant further offences]
“(1) The Public Prosecutor's Office may
dispense with prosecuting an offence
1. if the penalty or the measure of
correction and prevention (Maβregel der Besserung und
Sicherung) in which the prosecution might result is not
particularly significant compared to a penalty or measure of
correction and prevention which was imposed with binding effect upon
the defendant for another offence or which he has to expect for
another offence, or
2. furthermore, if a judgment for such
offence is not to be expected within a reasonable time and if the
penalty or the measure of correction and prevention which was imposed
with binding effect upon the defendant or which he has to expect for
another offence, appears sufficient to have an influence on the
offender and to defend the legal order.
(2) If public charges have already been
preferred, the court may provisionally discontinue the proceedings
upon the motion of the Public Prosecutor's Office at any stage.
...
(4) If the proceedings were discontinued
provisionally on account of a penalty or measure of correction and
prevention which was to be expected for another offence, the
proceedings may be resumed, unless barred by limitation in the
meantime, within three months after the judgment delivered in respect
of the other offence became final.”
Section 344 [Reasoning of an appeal on points of law]
“(1) The appellant shall make a
statement on the extent to which he contests the judgment and applies
for it to be quashed (notices of appeal on points of law) and shall
give reasons for his motions.
(2) The reasoning must show whether the
judgment is contested because of a violation of the law of procedure
or because of a violation of a different legal provision. In the
former case the facts which constitute the defect have to be set
out.”
Section 345 [Time-limit for reasoning the
appeal on points of law]
“(...)
(2) The defendant may only do so [i.e.
submit notices of appeal and the grounds therefor] in the form of
observations signed by defence counsel or a lawyer or orally to be
recorded by the court's registry.”
Section 273 [Recording of the main hearing]
“(1) The record must indicate the
course and the results of the main hearing in essence, and show that
all essential formalities have been observed; it must also specify
the documents read out or those documents the reading of which has
been dispensed with ..., as well as the applications filed during the
course of the hearing, the decisions given, and the operative
provisions of the judgment.
(2) The main outcome of questionings in the
main hearing ... shall also be included in the record; ...”
Section 274 [Probative value of the record]
“Observance of the formalities required for the
main hearing can only be proved by the record. Against the contents
of the record concerning these formalities only proof of forgery is
possible.”
2. Case-law of the Federal Court of Justice
a. General principles
- Pursuant
to the well-established case-law of the Federal Court of Justice, an
appellant alleging a violation of a procedural rule must set out the
facts which constitute the defect within the meaning of section 344
§ 2, second sentence, of the Code of Criminal Procedure in
such a comprehensive and detailed manner that the appellate court is
in a position to verify on the basis of the appellant's reasoning
alone whether there would be a procedural error if the alleged facts
were proved. It is not only necessary for the appellant not to omit
facts weighing against him, but also to submit facts militating in
favour of exceptional circumstances which would render his complaint
unfounded. Depending on the nature of the violation of the procedural
rule, the Federal Court of Justice developed special requirements in
its case-law on how to reason an appeal on points of law (see the
decision of the Federal Constitutional Court of 25 January 2005,
nos. 2 BvR 656/99, 2 BvR 657/99 and
2 BvR 683/99, § 92 with many references to
decisions taken by the Federal Court of Justice between 1982 and
2002).
- In
its decision of 25 January 2005 (cited in paragraph 27
above) the Federal Constitutional Court examined the
constitutionality of the requirements set up in the case-law of the
Federal Court of Justice which an appellant has to satisfy in order
to lodge an admissible appeal on points of law about a procedural
error in accordance with section 344 § 2, second
sentence, of the Code of Criminal Procedure. The Federal
Constitutional Court found that as a rule, these requirements did not
violate the individuals' right to effective legal protection and did
not limit access to the Federal Court of Justice in an arbitrary
manner (see §§ 91-108 of the decision). It stressed
that the interpretation of the said section by the Federal Court of
Justice served to prevent that court from being overcharged, which
would itself compromise an effective legal protection (see § 107
of the decision).
b. Case-law relied on by the Federal Court
of Justice in its decision of
30 May 2000
- The
Federal Court of Justice, in its decision of 9 March 1995
(no. 4 StR 77/95, NJW 1995, p. 2047),
considered an appeal on points of law lodged by the Public
Prosecutor's Office complaining about a procedural error to be
inadmissible for failure to comply with the requirements of
section 344 § 2, second sentence, of the Code of
Criminal Procedure. It found that the appellant failed to set out all
the facts which constituted the defect in such a comprehensive and
detailed manner that the appellate court was in a position to verify
on the basis of the appellant's reasoning alone whether there would
be a procedural error if the alleged facts were proved. The
submissions failed to give an account of the contents of the
statements made by the defendant prior to the hearing before the
police.
- In
its decision taken on 5 March 1996 (no. 5 StR 643/95,
StV 1996, pp. 529-530) the Federal Court of Justice
dismissed the defendant's appeal on points of law concerning a
procedural error as inadmissible pursuant to section 344 § 2
of the Code of Criminal Procedure. The appellant, who complained that
his motion to appoint a further expert had wrongly been dismissed,
despite the fact that the court-appointed expert allegedly lacked
expertise, failed to set out the full contents of the report given by
that expert. In so far as the appellant based his allegations on
statements made by that expert during the hearing, the account given
in the judgment of the discussion with the expert in the hearing
proved that there was no lack of expertise on his part. Accordingly,
the Federal Court of Justice was not in a position to verify whether
the allegation of a lack of expertise was well founded.
- On
29 July 1998 the Federal Court of Justice (no. 1 StR 94/98,
StV 1998, pp. 580-582) allowed the defendant's appeal on
points of law alleging that the law had been applied wrongly to the
facts ascertained in the judgment (Sachrüge). The
defendant had been charged with six counts of sexual abuse of
children, which had all been based on the statements made by the only
witness for the prosecution. He was acquitted as the witness had been
proved to have invented the incident in respect of one count and
convicted in respect of three other counts; in respect of two counts
of sexual abuse the proceedings were discontinued pursuant to
section 154 § 2 of the Code of Criminal Procedure.
According to the Federal Court of Justice, the evaluation of evidence
in the Regional Court's judgment was defective, inter alia,
because that court had discontinued the proceedings in respect of two
counts of sexual abuse of children without giving reasons therefore.
In the circumstances of the case – there was notably only
one witness for the prosecution, no further incriminating evidence
and the defendant's innocence was established in respect of one of
the comparable offences he had been charged with – the reasons
for discontinuing the proceedings in respect of two further counts
could have had evidential value for the decisive question of the
credibility of the sole witness for the prosecution.
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that his right to a fair trial had been violated
in that the Federal Court of Justice, in its decision taken on
30 May 2000, had applied inadmissibility criteria which
were inconsistent with its previous case-law and therefore
unforeseeable to him. He relied on Article 6 § 1 of
the Convention, which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested that argument.
A. Admissibility
- The Court notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant claimed that the Federal Court of Justice had dismissed his
complaint about the Regional Court's error of procedure as
inadmissible in an unforeseeable manner contradicting its own
well established case-law. According to that case-law, it was
not only unnecessary, but even inadmissible to base a complaint about
a procedural error on oral submissions made during the hearing which
were not recorded in the minutes. The decisions cited by the
Government in support of their view that the Federal Court of Justice
had applied well-established case-law in this respect were not
applicable to facts as the one in the present case. The applicant
relied, inter alia, on a decision taken by the Federal Court
of Justice on 29 July 1998 (see paragraph 31 above).
- In
the applicant's submission, the Regional Court had been obliged in
the circumstances of the present case to set out in detail in its
judgment all facts relevant for the evaluation of U.'s testimony as a
witness. There had notably been an almost total lack of ability of
this only witness for the prosecution to give correct evidence and
the proceedings had been discontinued in respect of one charge
pursuant to section 154 § 2 of the Code of Criminal
Procedure.
- The
applicant stressed that he did not claim that the Regional Court had
found the only witness for the prosecution not to be credible in
respect of the first charge. This was in fact irrelevant. In his
view, there had been a procedural error because the Regional Court
had failed to set out any reasons in its judgment for discontinuing
the proceedings.
- In
the Government's submission, the Federal Court of Justice had
examined the applicant's appeal on points of law in accordance with
its well-established case-law on the admissibility of complaints
about alleged procedural errors. According to that case-law, a
complainant had to set out all facts which, if proved, warranted the
conclusion that there had been a procedural error. However, the
applicant failed to report whether reasons were given in the hearing
by the Public Prosecutor's Office for its motion to discontinue the
proceedings in respect of one of the charges. Moreover, the applicant
failed to state facts indicating that the Regional Court found the
witness to be credible with respect to one charge and not credible
with respect to the other. This duty could not be considered as
unreasonable, given that the applicant and his counsel had been
present at the hearing. Consequently, the Federal Court of Justice
neither acted in a manner contradicting its case-law nor reached a
surprise decision in finding that the applicant's appeal on points of
law was inadmissible in this respect.
- In
particular, pursuant to its well-established case-law on how to raise
an admissible complaint about procedural errors in accordance with
section 344 § 2, second sentence, of the Code of
Criminal Procedure, the Federal Court of Justice has always requested
appellants to set out the facts concerning oral submissions in the
hearing. This applied even if the submissions were not – and
according to the relevant provisions (notably section 273 of the
Code of Criminal Procedure, see paragraph 26 above), did not
have to be – contained in the minutes of the hearing. To
support their view, the Government notably relied on the decisions
cited by the Federal Court of Justice itself in its decision of
30 May 2000 in the present case (see above, at paragraphs 21
and 29-30).
- The
Government confirmed that according to the case-law of the Federal
Court of Justice, it was necessary for a court critically to evaluate
the testimony of the only witness for the prosecution in its judgment
in cases in which it considered only part of his or her submissions
to be credible and had therefore partly discontinued the proceedings
pursuant to section 154 § 2 of the Code of Criminal
Procedure.
- However,
in the present case there was nothing to indicate that the Regional
Court had discontinued the proceedings because it had found Ms U.'s
testimony concerning the first charge not to be credible. Partially
discontinuing the proceedings pursuant to section 154 § 2
of the Code of Criminal Procedure, as in the present case, served to
expedite criminal proceedings and was generally unrelated to
questions of the credibility of witnesses for the prosecution.
2. The Court's assessment
a. Relevant principles
- The
Court reiterates that the “right to a tribunal”, of which
the right of access is one aspect (see Golder v. the United
Kingdom, judgment of 21 February 1975, Series A no. 18, p.
18, § 36), is not absolute; it is subject to limitations
permitted by implication, in particular where the conditions of
admissibility of an appeal are concerned, since by its very nature it
calls for regulation by the State, which enjoys a certain margin of
appreciation in this regard (see Ashingdane v. the United Kingdom,
judgment of 28 May 1985, Series A no. 93, p. 24, § 57).
However, these limitations will not be compatible with Article 6 § 1
if they do not pursue a legitimate aim or if there is not a
reasonable relationship of proportionality between the means employed
and the aim sought to be achieved. In particular, such limitations
must not restrict or reduce a person's access to court in such a way
or to such an extent that the very essence of the right is impaired
(see, among other authorities, Levages Prestations Services v.
France, judgment of 23 October 1996, Reports of Judgments
and Decisions 1996-V, p. 1543, § 40; Sotiris
and Nikos Koutras ATTEE v. Greece, no. 39442/98,
§ 15, 16 November 2000; Związek Nauczycielstwa
Polskiego v. Poland, no. 42049/98, § 29, ECHR
2004-IX).
- In
order to satisfy itself that the very essence of an applicant's
“right to a tribunal” was not impaired by the declaration
that the appeal was inadmissible, the Court will notably examine
whether the procedure to be followed for an appeal on points of law
could be regarded as foreseeable from the point of view of a litigant
and whether, therefore, the penalty for failing to follow that
procedure did not infringe the proportionality principle (see Levages
Prestations Services, cited above, p. 1543, § 42;
Nicolai v. France (dec.), no. 69090/01, 19 February
2004).
- The
manner in which Article 6 § 1 applies to courts of appeal or
cassation depends on the special features of the proceedings
concerned and account must be taken of the entirety of the
proceedings conducted in the domestic legal order; the conditions of
admissibility of an appeal on points of law may be stricter and more
formal than for an ordinary appeal (see, inter alia,
Levages Prestations Services, cited above, p. 1544, § 45;
Brualla Gómez de la Torre v. Spain, judgment of
19 December 1997, Reports 1997-VIII, p. 2956, § 37;
Sotiris and Nikos Koutras ATTEE, cited above, § 18).
- The
Court further affirms that it is not its task to take the place of
the domestic courts. It is primarily for the national authorities,
notably the courts, to resolve problems of interpretation of domestic
legislation. This applies in particular to the interpretation by the
courts of rules of a procedural nature. The Court's role is confined
to ascertaining whether the effects of such an interpretation are
compatible with the Convention (see, among other authorities,
Leoni v. Italy, no. 43269/98, § 21,
26 October 2000; Sotiris and Nikos Koutras ATTEE,
cited above, § 17; Tricard v. France,
no. 40472/98, § 29, 10 July 2001).
b. Application of those principles to the
present case
- Turning
to the facts of the present case, the Court observes that the Federal
Court of Justice dismissed the applicant's appeal on points of law,
in which he complained about the Regional Court's failure to give
reasons for partly discontinuing the proceedings, as inadmissible.
The Federal Court of Justice found that the applicant had not
sufficiently set out the facts which were relevant for his complaint
because he had failed to state if and which reasons for discontinuing
the proceedings had been discussed orally during the Regional Court's
hearing.
- In
examining whether declaring the applicant's appeal on points of law
inadmissible in this manner constituted a disproportionate limitation
to his right of access to court, notably as the procedure could not
be regarded as foreseeable for him, the Court notes that it is
contested between the parties whether or not the Federal Court of
Justice applied its well established case-law in dismissing the
applicant's appeal. The applicant claimed that the Federal Court of
Justice had not previously requested appellants to set out the
contents of oral discussions during the hearing in order to lodge an
admissible complaint about a procedural error. On the contrary, the
Government submitted that the Federal Court of Justice has always
requested appellants to state also such facts in an appeal on points
of law.
- In
assessing whether in the instant case the Federal Court of Justice
deviated from its own well-established case-law in an unforeseeable
manner, the Court will notably have regard to the case-law referred
to by that court itself when dismissing the applicant's appeal as
inadmissible (see paragraphs 19, 21 and 29-31 above). It
notes that none of the decisions quoted by the Federal Court of
Justice appear to deal with exactly the same constellation as the one
at issue in the present case, that is, a discontinuance of
proceedings pursuant to section 154 § 2 of the Code of
Criminal Procedure which has been the cause of an appeal on points of
law alleging a procedural error (as opposed to an allegedly wrong
application of the law to the facts of the case). However, it is
clear that, in all decisions it cited, the Federal Court of Justice,
applying its well-established case-law (see paragraph 27
above), has required the appellant to state those facts which, in the
circumstances of the case, were necessary for it to verify on the
basis of the appellant's reasoning alone whether there would be a
procedural error if the alleged facts were proved. It emerges from
the decisions referred to that the Federal Court of Justice, in
accordance with that aim, had already previously required appellants
also to set out the content of statements made orally by persons
involved in the proceedings
– without a distinction having
been made in these decisions as to whether or not these statements
were recorded in the minutes – if it considered the knowledge
of those statements necessary to examine the appeal.
- Having
regard to the material before it, the Court is therefore not
convinced that the Federal Court of Justice departed from the
admissibility criteria set up in its own case-law for an appeal on
points of law in a manner which was unforeseeable to the applicant.
The Court affirms in this connection that problems of interpretation
notably of rules of a procedural nature are to be resolved primarily
by the domestic courts. In the light of this, it also takes into
consideration that the Federal Constitutional Court refused to admit
the applicant's constitutional complaint in which he had raised
exactly the same complaint as the one brought before the Court.
- It
remains for the Court to determine whether, in the circumstances of
the present case, the Federal Court of Justice's decision to declare
the applicant's appeal on points of law partly inadmissible –
even though it could not be considered as unforeseeable –
impaired the applicant's access to court in a disproportionate
manner, in particular by its consequences (compare also Levages
Prestations Services, cited above, p. 1544, § 43).
- Having
regard to the requirements set up in the case-law of the Federal
Court of Justice which the applicant had to satisfy in order to lodge
an admissible appeal on points of law about a procedural error in
accordance with section 344 § 2 of the Code of
Criminal Procedure (compare paragraphs 27-31 above), the Court
considers that these are, as a rule, anything but easy to comply
with. However, the role of the Federal Court of Justice was limited
to reviewing – a second time – whether the law had been
applied correctly in the applicant's case. The Regional Court had
previously heard and fully examined the applicant's case both on
points of fact and law, the Federal Court of Justice, in its first
decision, had then quashed the Regional Court's judgment and a
different chamber of the Regional Court had reconsidered the
applicant's case as a whole in the light of the (first) decision of
the Federal Court of Justice. Moreover, given that pursuant to
section 345 § 2 of the Code of Criminal Procedure
(see paragraph 26 above) appellants are obliged to submit
their reasoning for the appeal on points of law either signed by
defence counsel or a lawyer or orally to be recorded by the court's
registry, there was also a guarantee that appellants had recourse to
legal advice in order to help them to comply with the said
admissibility requirements. The applicant was indeed represented by
counsel when lodging his appeal on points of law. In these
circumstances, the procedure followed by the Federal Court of Justice
could, in the Court's opinion, legitimately be more formal, thereby
ensuring a proper administration of justice (compare also Levages
Prestations Services, cited above, pp. 1544/45, § 48).
- The
Court further observes that the Federal Court of Justice considered
it necessary for the applicant to show in his appeal that the reasons
for discontinuing the proceedings could have had an influence on the
outcome of the judgment, in particular because there had been doubts
about the credibility of the statements of the only prosecution
witness. In the circumstances of the present case, it does not find
this requirement too formalistic so as to limit unreasonably the
applicant's access to that court. In this connection, the Court
notes that it becomes clear from the Regional Court's reasoning that
it did find Ms U. credible for several reasons and considered
her statements to be correct.
- In
conclusion, regard being had to the proceedings in the domestic
courts as a whole, the Court finds that the applicant's right of
access to court as guaranteed by Article 6 § 1 was not
violated by reason of the conditions he had to satisfy for his appeal
on points of law to be admissible. There has accordingly been no
violation of that provision.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 6 of the Convention.
Done in English, and notified in writing on 1 February 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
