FIFTH SECTION
CASE OF HÜMMER v. GERMANY
(Application no.
26171/07)
JUDGMENT
STRASBOURG
19 July 2012
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 Hümmer v. Germany,
The European Court of Human Rights (Fifth Section), sitting as
a Chambercomposed of:
Dean Spielmann, President,
Mark Villiger,
Karel Jungwiert,
Boštjan M. Zupančič,
Ganna Yudkivska,
Angelika Nußberger,
André Potocki, judges,
and Claudia Westerdiek, SectionRegistrar,
Having deliberated in private on 26 June 2012,
Delivers the following judgment, which was adopted on the last‑mentioned
date:
PROCEDURE
The case originated in an application (no.
26171/07) 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 a German national, Mr Lars Hümmer (“the
applicant”), on 3 May 2007.
The applicant, who had been granted legal aid,
was represented by Mr T. Guber, a lawyer practising in Munich.The German Government (“the Government”) were represented by their Deputy Agent, Mr H.-J. Behrens, Ministerialrat, of
the Federal Ministry of Justice.
The applicant alleged that he had not been able
at any stage of the criminal proceedings instituted against him to question the
main witnesses on whose testimonies the domestic court had based its order to
place him in a psychiatric hospital, in breach of his right to a fair trial
pursuant to Article 6 §§ 1 as well as 3 (d) of the Convention.
The applicant and the Government each filed
observations on the admissibility and merits of the application.
By a decision of 8 June 2010, the Court declared
the application admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was
born in 1978 and lives in Bayreuth.At the time of the events in issue in
September 2003 he was living in Bingen, Rhineland-Palatinate, where he was
studying mechanical engineering.
On 26 November 2003 the applicant’s mother, his
brother and his sister (“the witnesses”) informed the police about an incident
that had occurred during the night of 2-3 September 2003 at the applicant’s
parents’ house in Wilhemsthal, Bavaria. The witnesses testified that the
applicant, who cannot remember the incident, had strangled his sister and had
attacked his brother with an axe before being overpowered by his parents.The
applicant’s father did not press criminal charges and did not testify against
the applicant.
The Coburg Public Prosecutor opened a criminal
investigation against the applicant for attempted murder. On 8 December 2003
the witnesses repeated their statements before the investigating judge (Ermittlungsrichter)
of the Kronach District Court in the presence of a police officer. The
applicant was not informed of the hearing before the investigating judge. No
counsel was appointed for him.
On 16 December 2003 the Kronach District Court
issued a warrant for the applicant’s arrest. The applicant was arrested on
19December 2003 and remanded in custody. By a decision of the Coburg Regional
Courtof 6 October 2004 the applicant was transferred to a psychiatric hospital
pending trial.
On 28 February 2005 the Coburg Regional Court
ordered that the applicant be placed in a psychiatric hospital pursuant to
section 63 of the Criminal Code (see “Relevant domestic law and practice”
below).
The Regional Courtfound it established that on the evening of
2 September 2003 the applicant travelled from Bingen to his parents’ house
in Wilhelmsthal. He entered the house with his own key without notifying his
parents or his brother and sister of his arrival. During the night he went to
his sister’s bedroom,strangled her and then attacked his brother with an axe
causing him injuries on his head, hands, arms and legs. Once the applicant had
been overpowered by his parents, the entire family gathered in the kitchen. The
sister then drove the applicant’s heavily bleeding brother to hospital where
two of his woundswere sutured. The applicant stayed with his family in his
parent’s house until end of September 2003. During his stay he was provided
with medical care by a local doctor who diagnosed him with having suffered an
epileptic seizure. The applicant then returned to Bingen but made another
unannounced visit to his parent’s house on 21 November 2003. Following
this visit the applicant’s mother, brother and sister who feared a further
attack by the applicant decided to inform the police about the incident in the
night of 2-3 September 2003 and pressed criminal charges against the applicant
on 26 November 2003 (see above § 7).
The Regional Courtqualified the acts as two
counts of assault occasioning grievous bodily harm (gefährliche
Körperverletzung). It further held on the basis of expert opinions that the
applicant had acted either in a state of diminished awareness of his actions
due to epilepsy (epileptischer Dämmerzustand) or during a bout of
paranoid schizophrenia and could therefore not be held responsible for the
acts, pursuant to section 20 of the Criminal Code (see “Relevant domestic law
and practice” below).
As regards the finding of facts, the Regional
Court noted that the applicant did not have any recollection of the events in
the night of 2‑3 September 2003 and that the only available direct
witnesses, namely the applicant’s mother, brother and sister, had availed
themselves of their right not to testify against the applicant in court
pursuant to section 52 of the Code of Criminal Procedure (see “Relevant
domestic law and practice” below). The applicant’s father had refrained from
pressing criminal charges and had not participated in the proceedings (see
above § 7). The facts could nevertheless be established on the basis of the
testimony of the investigating judge, who had heard the witnesses on 8December
2003 and had given an account of their pre-trial statements in court. The Regional Court held that it was not prevented from hearing the investigating judge as a
witness and taking his testimony about the witnesses’ pre-trial statements into
account.
The Regional Court noted that the Public
Prosecutor had failed to request the appointment of counsel for the applicant
prior to the hearing of the witnesses by the investigating judge in accordance
with section 140 (1) no. 2 read in conjunction with section 141 (3) of the
Codeof Criminal Procedureas construed by the Federal Court of Justice in the
light of the requirements of Article 6 § 3 (d) of the Convention. Furthermore,
the unrepresented applicant had not been informed about the hearing before the
investigating judge pursuant to section 168(c) (3) and (5) of the Code of
Criminal Procedure and there would have been no grounds to exclude a potential
counsel from the hearing (see “Relevant domestic law and practice” below).
The Regional Court reiterated that under the
Federal Court of Justice’s case-law the failure to appoint counsel did not
compel the exclusion of the investigating judge’s testimony. However, the Regional Court was bound to proceed to a particularly critical assessment of the
investigating judge’s testimony in view of the fact that neither the accused
nor counsel had been able to directly examine the witnesses. The finding of
facts could only be based on the investigating judge’s testimony if the latter
was corroborated by other significant considerations.
The Regional Court took several items of
evidence as corroborating the investigating judge’s testimony into account.
Firstly, it emphasised that for its establishment of facts it not only disposed
of the testimony by the investigating judge but also of three consistent
witness statements that gave a coherent account of the events in issue.
According to the testimony given by the investigating judge, there was nothing
to establish that the witnesses had not told the truth or wanted to incriminate
the applicant; the witnesses had testified because they had been concerned
about the applicant’s health and had feared another attack by him.
Furthermore,the police superintendent who had registered the witnesses’
criminal charge on 26 November 2011 had testified that on this occasion
hehad been spontaneously told by the witnesses - prior to their subsequent
questioning - that the applicant had attacked members of his family with an
axe. The Regional Court pointed out that as opposed to the witnesses’
subsequent testimonies to the police, these spontaneous statements did not have
to be excluded from the trial pursuant to section 252 of the Code of Criminal
Procedure but constituted admissible evidence. In addition, another policeman
had testified that the applicant’s mother had called him spontaneously on 3
December 2003 and had asked what further action would be taken as a result of
thecriminal complaint with a view to preventing a renewed unannounced visit and
attack by the applicant.In the Regional Court’s view these spontaneous
statements supported the witnesses’ description of the events in the night of
2-3 September 2003.
Moreover, the doctor who had treated the applicant’s brother’s
cuts in hospital on 3 September 2003 had testified that he had been suspicious
of the latter’s explanation for his injuries at that time, namely that he had
fallen through a glass pane. The Regional Court further noted that the
applicant’s brother had later handed over an axe to the police on his own
initiative, and that the police officer who had received the implement had
testified that the brother had confirmed that the axe was the corpus delicti.
Finally, the applicant himself had testified that he could remember seeing his
brother covered in blood on the morning of 3 September 2003 when the family had
gathered in the kitchen and that his family members had told him that he had
attacked his brother and sister during the night. According to the applicant,
he himself had proposed that same morning to contact the police but his family
had refused to do so. He further remembered that his sister had taken his
brother to hospital.
The applicant lodged an appeal on points of law
in which he complained that the investigating judge’s testimony ought to have
been excluded from the trial.
The Coburg Public Prosecutor lodged an appeal on
points of law in which he argued that the attack on the witnesses should have
been classified as two counts of attempted manslaughter as well as assault
occasioning grievous bodily harm.
On 25 May 2005 the Federal Public Prosecutor
moved that the applicant’s appeal on points of law be dismissed on the grounds
that the Regional Court had, in line with the reasoning in the related Federal
Court of Justice’s leading judgment, established that the investigating judge’s
testimony had been corroborated by other important considerations and that the
Regional Court’s holding was free of error.
On 24 August 2005 the Federal Court of Justice
dismissed the applicant’s appeal on points of law as ill-founded. On 31 August
2005 the Federal Court of Justice ordered the State to pay the costs of the
Public Prosecutor’s Appeal on points of law which had been withdrawn. These
decisions were served on the applicant on 9 and 16 September 2005 respectively.
On 1 April 2006 the applicant lodged his first
application with this Court (no. 14678/06) which was declared inadmissible for
non-exhaustion of domestic remedies by a Committee of three judgeson 5
September 2006.
On 16 October 2006 the applicant applied for the
reinstatement of the proceedings in regard to his compliance with the one-month
period to lodge a constitutional complaint and submitted his constitutional
complaint to the Federal Constitutional Court.
On 20 March 2007 the Federal Constitutional
Court refused to admit the applicant’s constitutional complaint for
examination and noted that there was no need to decide the applicant’s
application for the reinstatement of the proceedings(no. 2 BvR 225/07).
II. RELEVANT DOMESTIC LAW AND PRACTICE
The Regional Court may order an accused to be
placed in a psychiatric hospital if he has committed an unlawful act in a state
that excludes a finding of guilt, and if his act reveals that as a result of
his condition,future serious unlawful acts can be expected of him and that he
therefore presents a danger to the general public (section 63 of the Criminal
Code). An accused acts without guilt if he is incapable of appreciating the
wrongfulness of his act or of acting in accordance with such appreciation due
to a pathological emotional disorder, profound consciousness disorder, mental
defect or any other serious emotional abnormality (section 20 of the Criminal
Code).
Pursuant to section 168(c) (2) of the Code of
Criminal Procedure, the prosecutor, the accused and defence counsel shall be
permitted to be present during the judicial examination of a witness or expert
prior to the opening of the main proceedings. The judge may exclude an accused
from being present at the hearing if his presence would endanger the purpose of
the investigation, in particular if it is to be feared that a witness will not
tell the truth in the presence of the accused (section 168(c) (3) of the Code
of Criminal Procedure).The persons entitled to be present shall be given prior
notice of the dates set down for the hearings. The notification shall be
dispensed with if it would endanger the success of the investigation (section 168(c)
(5) of the Code of Criminal Procedure).
Defence counsel may be appointed during
preliminary proceedings;the public prosecution office shall request such an appointment
if in its opinion the assistance of defence counsel in the main proceedings
will be mandatory (section 141(3) of the Code of Criminal Procedure).The
assistance of defence counsel is mandatory if, inter alia, the main
hearing is held at first instance before the Regional Court, the accused is
charged with a serious criminal offence, or the proceedings are conducted with
a view to placement in a psychiatric hospital (section 140 (1) nos. 1, 2 and 7
of the Code of Criminal Procedure). Counsel is to be appointed when an indicted
accused without defence counsel has been requested to reply to the bill of
indictment (section 141(1) of the Code of Criminal Procedure).
In a leading judgment of 25 July 2000 (published
in the official reports, BGHSt, volume 46, p. 96 et seq.) the
Federal Court of Justice held that section 141(3) of the Code of Criminal
Procedure required, in view of Article 6 § 3 (d) of the Convention, the
appointment of counsel for an unrepresented accused if the key witness for the
prosecution was to testify before an investigating judge and the accused was
excluded from this hearing. The failure to appoint counsel prior to the hearing
before the investigating judge did not exclude the latter’s testimony about the
witnesses’ statements as long as the proceedings, seen as a whole, remained
fair. To this end the investigating judge’s testimony had to be carefully
assessed. A conviction could only be based on the investigating judge’s
testimony if this testimony was corroborated by other important considerations.
Parents, brothers and sisters need not testify
against their accused son or daughter, brother or sister (section 52 (1) no. 3
of the Code of Criminal Procedure); if such a witness makes use of his or her right
not to testify at the main hearing, prior witness statements shall not be read
out (section 252 of the Code of Criminal Procedure). According to the Federal
Court of Justice’s case-law, section 252 of the Code of Criminal Procedure is
an exclusionary rule that applies to all statements made prior to a main
hearing by witnesses who avail themselves of their right not to testify at the
main hearing, with the exceptions of spontaneous statements made by the witness
before or outside his or her formal testimony as well as testimonies before a
judge after the witness has been advised of his or her right not to testify.
THE LAW
I. ALLEGED
VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION
The applicant complained that neither he nor
counsel were able to examine the main witnesses against him at any stage of the
proceedings. He alleged that therefore his right to mount an effective defence
had been unduly restricted.His right to a fair trial further had been breached
by the trial court’s admission of the investigating judge’s account of the
statements made by the witnesses at the pre-trial stage.
He relied on Article 6 §§ 1 and 3 (d) of the Convention, which,
as far as relevant, read as follows:
“1. In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law...
...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(d) to examine or have examined witnesses against
him and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him...”
A. The parties’ submissions
1. The Government
The Government conceded that neither the
applicant nor counsel had been able at any stage of the proceedings to question
or to have questioned the applicant’s family members who were the only direct
witnesses of the events at issue.
They maintained that the fact that the applicant
had not been notified of the hearing of the witnesses by the investigating
judge in the course of the preliminary proceedings did, as such, not raise a
problem. They nevertheless acknowledged that pursuant to section 141 (3) of the
Code of Criminal Procedure, as construed by the case-law of the Federal Court
of Justice, counsel should have been appointed for the applicant at the
pre-trial stage and be granted the opportunity to assist the hearing by the
investigating judge and to question the witnesses. Since the witnesses had
availed themselves of their statutory right not to testifyon the occasion of
the ensuing trial in accordance with section 52 of the Code of Criminal
Procedure, the applicant had been definitely deprived of an opportunity to
examine them. The procedural error of not having appointed counsel already at
the investigative stage had therefore also affected the fairness of the main
proceedings.
In the Government’s view the Coburg Regional
Court had, however, sufficiently compensated the resulting restrictions for
the defence in the course of the trial. In line with the related principles
developed in the Federal Court of Justice’s case-law referring to Article 6 § 3
(d) of the Convention, the Regional Court had pointed out that the evidentiary
value of the investigating judge’s testimony was reduced because of the
applicant’s inability to question the main witnesses. Consequently, it had not
based its findings of fact solely on the witnesses’ testimonies as introduced
by the investigating judge but had taken other significant evidence into
account. For instance, the court had made reference tothe applicant’s account
of the events following the assault on the morning of 3 September 2003 and
the witnesses’ spontaneous statements made vis-à-vis the police officer who had
recorded the criminal charges brought against the applicant on 26 November 2003
as well as the applicant’s mother’s enquiry of 3 December 2003 regarding the
further steps taken by the police as a result of the criminal complaint. The Regional Court further had had regard to the injuries sustained by the applicant’s brother,
the submissions of the doctor who had treated the applicant’s brother’s wounds
in hospitaland thecorpus delicti handed over to the police by the
latter. The Government also pointed out that the applicant as well as counsel
had been in a position to observe the demeanour of the investigating judge as
well as the aforementioned police officers and doctor when they were testifying
in court and had the opportunity to question these witnesses. Thus, the defence
had had the possibility to form their own impression of the latters’credibility.
The Government contended that the Regional Court
had thoroughly and critically assessed these additional items of evidence which
not only had their own independent evidentiary value and could therefore serve
as a basis for the Regional Court’s decision but which also corroborated the
investigating judge’s testimony. They therefore constituted a strong indication
that the statements made by the witnesses in the course of the preliminary
proceedings had been accurate. The applicant’s placement in a psychiatric
hospital had therefore not been based solely or decisively on the statements of
witnesses whom the applicant had been unable to question or have been
questioned.
Having regard to these considerations, the
Government concluded that the criminal proceedings against the applicant as a
whole had been fair and there had thus been no violation of Article 6 § 1 and 3
(d) of the Convention.
2. The applicant
The applicant submitted that the Government had
actually acknowledged that the applicant’s rights to examine witnesses against
him had been infringed. The Government’s view that the resulting restrictions
for the defence had been compensated by the Regional Court’s finding that the
investigating judge’s testimony was of reduced evidentiary value and that the
applicant’s conviction therefore had to be based on further significant
evidence had no mooring in the text of the Convention or the Court’s case-law.
In particular, the present case was not comparable to applications previously
examined by the Court which related to situations where the identity or the
whereabouts of a witness were unknown, thus making it impossible for the
national authorities to arrange for an examination of the latter by defence
counsel.
The applicant further maintained that, contrary
to the Government’s submissions, his placement in a psychiatric hospital had,
in fact, been based solely on the statements of the key witnesses whom he had
not had an opportunity to question. Thecorroborating evidence adduced by the Regional Court did not provide a sufficient basis for the court’s related order and a
conviction based solely on corroborating evidence would not have been safe.
For these reasons, the applicant concluded that
the rights of the defence had been restricted to an extent which was
irreconcilable with the guarantees contained in Article 6 §§ 1 and 3 (d) of the
Convention.
B. The
Court’s assessment
The Court recalls that the guarantees in
paragraph 3(d) of Article 6 are specific aspects of the right to a fair hearing
set forth in paragraph 1 of this provision which must be taken into account in
anyassessment of the fairness of proceedings. In addition, the Court’s primary
concern under Article 6 § 1 is to evaluate the overall fairness of the criminal
proceedings (see, as a recent authority,Al-Khawaja and
Tahery v. the United Kingdom[GC], nos. 26766/05 and 22228/06,
§118, ECHR 2011, with further
references therein). In making this assessment the Court will look at
the proceedings as a whole having regard to the rights of the defence but also
to the interests of the public and the victims that crime is properly
prosecuted (see Gäfgen v. Germany [GC], no. 22978/05, § 175, ECHR 2010‑....) and, where necessary, to the rights of witnesses (see, amongst many authorities,Doorson v. the Netherlands, 26 March 1996, § 70, Reports
of Judgments and Decisions 1996‑II).
Article 6 § 3(d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his
presence at a public hearing with a view to adversarial argument. The
underlying principle is that the defendant in a criminal trial should have an
effective opportunity to challenge the evidence against him. Exceptions to this
principle are possible but must not infringe the rights of the defence, which, as a rule, require not merely that a defendant should know the identity of his accusers
so that he is in a position to challenge their probity and credibility but that
the accused should be given an adequate and proper opportunity to challenge and
question a witness against him, either when that witness makes his statement or
at a later stage of proceedings (see Lucà v. Italy, no. 33354/96,
§ 39, ECHR 2001‑II andSolakov v. “the former Yugoslav Republic of
Macedonia”, no. 47023/99, § 57, ECHR 2001‑X).
The statement of a witness does not always have
to be made in court and in public if it is to be admitted as evidence; in
particular, this may prove impossible in certain cases (see Asch v. Austria,
26 April 1991, § 27, Series A no. 203). In any event, paragraph 1 of
Article 6 taken together with paragraph 3 requires the Contracting States to
take positive steps, in particular to enable the accused to examine or have
examined witnesses against him. Such measures form part of the diligence which
the Contracting States must exercise in order to ensure that the rights
guaranteed by Article 6 are enjoyed in an effective manner (see D. v. Finland,
no. 30542/04, § 41, 7 July 2009 and Sadak
and Others v. Turkey, nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 67,
ECHR 2001‑VIII).
The Court further reiterates in this context
that the admissibility of evidence is a matter for regulation by national law
and the national courts and that the Court’s only concern is to examine whether
the proceedings have been conducted fairly and in particular whether the
defendant’s rights have not been unacceptably restrictedand that he or she
remains able to participate effectively in the proceedings (see T. v. the
United Kingdom [GC], no. 24724/94, § 83, 16 December 1999 andStanford v.
the United Kingdom, 23 February 1994, § 26, Series A no. 282‑A).
The Court notes at the outset that, as also
pointed out by the applicant, the present application does not concernwitnesses
whose identity or whereabouts are unknown to the accused. In the instant case
theonly available eye witnesses of the events in issue were the applicant’s
mother, brother and sister (the applicant’s father having refrained from
participating in the proceedings, see above §§ 7 and 12) who all refused to
give evidence at the trial, as they were entitled to in their capacity as
family members of the accused pursuant to section 52 of the German Code of
Criminal Procedure. They could thus neither be heard by the trial court nor
were the prosecution or the defence able to examine them during trial.The Court
recallsin this context that provisions granting family members of the accused
the right not to testify as witnesses in court with a view to avoiding their being
put in a moral dilemmacan be found in the domestic law of several member States
of the Councilof Europe and are, as such, not incompatible with Article 6 §§ 1
and 3 (d)of the Convention (see Unterpertinger v. Austria, 24 November
1986, § 30, Series A no. 110).
Furthermore, as concerns the fact that the
Regional Court heard the investigating judge who gave an account of the
witnesses’ pre-trial statements of 8 December 2003,the Courtreiterates
that the use in evidence of statements obtained at the investigative stage is
not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6, provided the
defendant has been given an adequate opportunity to challenge the statements,
either when made or at a later stage (see, among other authorities, Isgrò v.
Italy, judgment of 19 February 1991, § 34, Series A no. 194‑A;Lucà,
cited above, § 40 and Gossa v. Poland, no. 47986/99, § 54, 9
January 2007). This implies that the use made of evidence admitted by the trial
court must comply with the rights of the defence, in particular, where the accusedhas
not had anopportunity at any stage in the earlier proceedings to question
thepersons whose statements are introduced into the trial (see, mutatis
mutandis, Unterpertinger, cited above, § 31) and where they form the
sole or decisive evidence for a conviction or related decision by the trial
court (see Al-Khawaja and Tahery, cited above, § 119). The Court has
held in this context that where a conviction is based solely or to a decisive
degree on depositions that have been made by a person whom the accused has had
no opportunity to examine or to have examined, whether during the investigation
or at the trial, the rights of the defence may be restricted to an extent that
is incompatible with the guarantees provided by Article 6 (the so-called “sole
or decisive rule”; ibid.).
The Court notes that it is not disputed between
the parties that the applicant did not have the opportunity to question his
mother, brother and sister at trial. It is further not contested by the
Government that the Public Prosecutor had failed to request the appointment of
counsel prior to the witnesses’ hearing before the investigating judge in
accordance with domestic law as construed by the Federal Court of Justice and
that it thus had been imputable to the national authorities that defence
counsel did not have an opportunity to examine the witnesses at the pre-trial
stage.
As regards the significance of the untested
evidence for the trial, the Court accepts the Government’s submissions that the
witnesses’ pre-trial statements of 8 December 2003, as introduced to the
proceedings by the investigating judge’s testimony, were not the only evidence
before the Regional Court. The court also referred, inter alia, tothe
witnesses’ statements made prior to their formal testimonies vis-à-vis the
police officer who had recorded the criminal charges brought against the
applicant on 26 November 2003 as well as the applicant’s mother’s enquiry
of 3 December 2003 regarding the further steps taken by the police as a
result of the criminal complaint. It further had regard to the injuries
sustained by the applicant’s brother, the submissions of the doctor who had
treated the applicant’s brother’s woundsand thecorpus delicti handed
over to the police by the latter. The Court notes, however, that such
corroborating evidence was either hearsay itself or circumstantial and appears
to have even increased the Regional Court’s reliance on the statements of the
witnesses whom the applicant could not examine. As regards the applicant’s
recollection of the events following the assault, the Court notes that this
could at best provide indirect support for the claim that the applicant had
attacked his sister and brother.
It follows that the only evidence conclusively demonstrating
that the applicant had committed the assault was the witnesses’ pre-trial
statements. In its judgment of 28 February 2005, the Regional Court in fact
emphasised that its establishment of facts was not only based on the testimony
by the investigating judge but also on three consistent witness statements that
gave a coherent account of the events in issue and were credible. It thus
appears that the Regional Court’s finding relied, at least to a significant
extent, on the hearsay testimony of the only direct witnesses of the events in
issue and whom neither the defence nor the trial court had an opportunity to
examine. It was obviously evidence of great weight and the Court therefore
concludes that the witness statements made by the applicant’s mother, brother
and sister at the pre-trial stage were decisive for the trial court’s
decision-making (see Al-Khawaja and Tahery, cited above, § 131).
The Court has emphasised in its recent case-law that,
where a hearsay statement is the sole or decisive evidence against a defendant, its admission at trial will not automatically result in a breach of Article 6 § 1. At the same
time the Court found that where a conviction is based solely or decisively on
the evidence of absent witnesses,it must subject the proceedings to the most
searching scrutiny.The question in each case is whether there are sufficient
counterbalancing factors in place, including measures that permit a fair and
proper assessment of the reliability of that evidence to take place. This would
permit a conviction to be based on such evidence only if it is sufficiently
reliable given its importance in the case (see Al-Khawaja and Tahery, cited
above, § 147). The Court
observes that similar considerations are reflected in the Regional Court’s
judgment of 28 February 2005 stating, with reference to the Federal Court
of Justice’s related case-law, that since neither the accused nor counsel had
been able to examine the witnesses against the accused, the trial court was
requested to assess the investigating judge’s testimony particularly critically
and could only base its decision on such testimony if the latter was
corroborated by other significant factors.
The Court is therefore called upon to examine
whether the Regional Court had put sufficient counterbalancing factors in place
and had proceeded to a fair and proper assessment of the reliability of the
available evidence. The Court observes that the counterbalancing factors relied
on by the Government mainly include the fact thatthe trial court had taken the
aforementioned corroborating evidence (see above § 44) into account in its
decision-making. The Government further pointed out that the applicant as well
as counsel had been in a position to observe the demeanour of the investigative
judge as well as the aforementioned police officers and doctor when they had
testified in court and had the opportunity to question these witnesses. In the
Government’s view they had thus had the possibility to form their own
impression of the latter’s credibility.Furthermore, according to the
investigating judge’s testimony, there had been nothing to establish that the
witnesses when questioned in the course of the investigation proceedings had
not told the truth or wanted to incriminate the applicant.
Having regard to these arguments and
acknowledging that the trial court had been aware of the fact that the evidentiary
value of the investigating judge’s testimony had to be carefully scrutinised,
the Courtwill examinewhether the factors adduced by the Government, taken alone
or in combination, constituted a sufficient counterbalance to the handicap
under which the defence labouredfollowing the admission as evidence of the
investigating judge’s account of the witnesses’ statements made at the
pre-trial stage.
The Court recalls in this context that counsel
for the applicant had not been appointed prior to the witnesses’ hearing by the
investigating judge in the preliminary proceedings, in breach of domestic law.
The applicant had thus been deprived of a procedural safeguard afforded by
national law as construed by the domestic courts with a view to granting the
defence an opportunity to examine key witness for the prosecution at the
pre-trial stage. The Court shares the Government’s view that this procedural
error at the investigative stage has also affected the fairness of the main
proceedings. It is, by contrast, not convinced by the Government’s argument
that the Coburg Regional Court has sufficiently compensated the resulting
restrictions for the defence in the course of the trial.
As regards the evidence corroborating the
witness statements as adduced by the Regional Court and as referred to by the
Government, the Court reiterates its finding that such evidence did at best
provide indirect support for the claim that the applicant had attacked his
sister and brother and that the statements of the applicant’s family members
provided the only conclusive evidence in this regard.
The Court further observes that the statements
of these witnesses and the circumstances under which they have been made were
to some extent contradictory or at least incoherent. It notes, for instance,
that the applicant’s brother, mother and sister pressed criminal charges
against the applicant on 26 November 2003, almost three months after the
incident had occurred. It is therefore questionable whether any statements made
on that date or thereafter vis-à-vis the police officer can still be considered
as being made spontaneously as assumed by the trial court. It is further not
surprising that after such a considerable period of time the witnesses, having
had ample opportunity to compare their recollection of the events, gave similar
and coherent accounts of the alleged assault during their examination by the
investigating judge. As regards the injuries sustained by the applicant’s
brother, the Court notes that the latter himself had adduced vis-à-vis the
doctor who had treated him in hospital on 2 September 2003 and who had
subsequently testified at the applicant’s trial, that he had fallen through a
glass pane. While this doctor, when examined at trial, expressed doubts as to
the explanation given for the injuries, there is nothing in his testimony to
establish that the injuries could in principle not have been caused by such an
accident or that they had actually been caused by the axe that constituted the
alleged corpus delicti. The Court further cannot but take note of the
fact that even though the sister had undisputedly accompanied her brother to
the hospital, she had not been examined by a doctor and no circumstantial
evidence exists for any injuries, such as strangulation marks, sustained by
her.
These inconsistencies, which are not addressed
in the Regional Court’s judgment of 28 February 2005, could neither be explored
by the applicant nor by the trial court in cross-examination of the witnesses.
Furthermore, neither the trial court nor the prosecution, the accused or
counsel were in a position to observe the direct witnesses’ demeanour under
questioning and to form their own impression of their probity and credibility.
While the Court accepts the Government’s submissions that the applicant as well
as counsel had been in a position to observe the demeanour of the investigative
judge as well as the aforementioned police officers and doctor when testifying
in court, it nevertheless is of the opinion that such possibility does not
compensate for the lack of opportunity to test the truthfulness and reliability
of the decisive evidence in the case at hand, namely the witnesses’ statements
at the pre-trial stage.
The Court is further of the opinion that the investigating
judge’s assessment that the witnesses’ statements made at the pre-trial stage
had been credible and that there was no indication for collusion on their part
can scarcely be considered a proper substitute for the possibility of the
defence or the trial court to question the witnesses in their presence and make
their own judgment as to their demeanour and reliability (see Van Mechelen
and Others v. the Netherlands, 23 April 1997, § 62, Reports of Judgments
and Decisions 1997‑III and Kostovski v. the Netherlands, 20
November 1989, § 43, Series A no. 166).
Having regard to the above considerations, the
Court therefore finds that no adequate procedures were introduced by the
authorities to counterbalance the difficulties faced by the defence and that
there is nothing to establish that the applicant was given an adequate and
proper opportunity to challenge and question the only direct witnesses against
him. This appears even more evident when taking into account that the applicant
himself, due to the epileptic seizure he had been suffering from, did
undisputedly not have any recollection of the events in issue and was thus not
even in a position of giving evidence denying the charge. The Court recalls in
this respect that a defendant must not be placed in a position where he is
effectively deprived of a real chance of defending himself by being unable to
challenge the case against him(see T. v. the United Kingdom [GC],cited above, § 83and Stanford v. the United Kingdom,cited above, § 26).”
The Court thereforeconsiders that the decisive
nature of the witnesses’ statementsas introduced by the investigating judges’
testimony in the absence of any strong corroborative evidence meant that the
trial court in the instant case was unable to conduct a fair and proper
assessment of the reliability of such evidence. Examining the fairness of the proceedings
as a whole, the Court concludes that there were no sufficient counterbalancing
factors to compensate for the difficulties to the defence resulting from the
admission of the investigating judge’s testimony.
The Court therefore finds that there has been a violation of
Article 6 § 1 read in conjunction with § 3 (d) of the Convention.
II. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
The applicant did not claim any award for
pecuniary damage. He submitted that the objective of his application was to
obtain a retrial before the domestic courts,should the Court hold that the
admissionof the investigating judge’s testimonyin the trial before the Coburg Regional Courtconstituted a violation of the Convention. The Government did not
comment on this issue.
The Court accordingly does not make an award in
respect of pecuniary damage. As to the specific measure requested by the
applicant in compensation, the Courtconsiders that where, as in the instant
case, an individual has been the victim of proceedings that have entailed
breaches of the requirements of Article 6 of the Convention, a retrial or the
reopening of the case, if he or she so requests, represents in principle an
appropriate way of redressing the violation (see Cudak v. Lithuania[GC], no. 15869/02, § 79, ECHR 2010 and Sejdovic
v. Italy[GC], no. 56581/00, § 126, ECHR 2006‑II).
The applicantclaimed EUR 10,000 in respect
of non-pecuniary damage.The Government left thematter to the Court’s
discretion.
The Court accepts that being deprived of the
guarantees provided by Article 6 of the Convention has caused the applicant
non-pecuniary damage which is not remedied by the mere finding of a violation.
Ruling on an equitable basis, it awards him EUR 10,000 under that head.
B. Costs and expenses
The applicant, who had been granted legal aid,
claimed an estimated total of EUR 6,000 in costs and expenses for legal fees
incurred in the proceedings before the Court. He further claimed an estimated
total of EUR 15,000 for costs and expenses incurred before the domestic
courts. He claimed an additional amount in the range of EUR 30 to EUR 40 for
copying costs and postal charges without specifying which part of this sum had
been incurred before the domestic courts or the Court.
The Government argued that any costs and
expenses in relation to the proceedings before the Coburg Regional Court had
not been incurred in order to prevent or redress a violation of the applicant’s
Convention rights. Furthermore, the costs and expenses claimed by the applicant
with respect to the proceedings before the domestic courts were based on an
estimate and had not been substantiated by the applicant. As regards the
lawyers’ fees claimed by the applicant for the proceedings before the Court,
the Government left it to the Court’s discretion to decide on their
reasonableness.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are reasonable
as to quantum. In the present case, regard being had to the documents in its
possession and the above criteria, the Court considers it reasonable to award
the sum of EUR 5,000 in respect of costs and expenses for the proceedings
before the Court, less EUR 850received by way of legal aid from the Council of
Europe, making a total of EUR 4,150, plus any tax that may be chargeable to the
applicant on that amount.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holdsthat there has been a violation of
Article 6 § 1 read in conjunction with Article
6 § 3(d) of the Convention;
2. Holds
(a) that the respondent State is to pay the
applicant, within three monthsfrom the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the
following amounts:
(i) EUR 10,000 (ten thousand euros), plus any tax
that may be chargeable,in respect of non-pecuniary damage;
(ii) EUR 4,150 (four thousand one hundred and fifty
euros), plus any tax that may be chargeableto the applicant, in respect of
costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above amounts
at a rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
3. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 19 July 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
ClaudiaWesterdiek DeanSpielmann
Registrar President
