THIND  v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
The first applicant, Mr Dilbag Singh Thind, was born in 1965. The second applicant, Mr Balvinder Singh Thind, was born in 1956. The applicants, who are Indian nationals and brothers, both live in Grimma. They were represented before the Court by Mr H. Meyer-Mews, a lawyer practising in Bremen. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 26 March 2003 the Leipzig District Court issued an arrest warrant against the applicants. It found that the applicants were suspected of having infiltrated Indian nationals into Germany or other States of Western Europe in exchange for money on several occasions. They were likely to abscond if not taken into detention, in particular as they risked being sentenced to a considerable term of imprisonment. On 31 March 2003 the applicants were arrested and taken into pre-trial detention. On 15 September 2003 the Leipzig Regional Court admitted the indictment dated 16 July 2003 and ordered the applicants’ continued detention. The applicants were notably charged with having infiltrated Indian nationals into Germany and Great Britain on fifty-two occasions, acting as members of a gang on nine of these occasions. On 9 December 2003 the Leipzig Regional Court opened the trial against the applicants, who were represented by two officially appointed defence counsel each. It subsequently held hearings on average once per week. On 8 February 2005 the Leipzig Regional Court issued a new detention order against the first applicant, taking into account that a number of charges against him had been dropped in the course of the main hearing. It confirmed that order on 30 March 2005 on the first applicant’s appeal. The first applicant was now charged, in particular, with having infiltrated or having attempted to infiltrate foreigners into Germany or other countries of Western Europe on a commercial basis on fifteen occasions, while acting as a member of a gang on seven of these occasions. The Regional Court found that the first applicant was strongly suspected of having committed these offences on account of the contents of telephone conversations intercepted on judicial order and on account of the testimonies of twenty witnesses heard until then in court. He was still likely to abscond if released, despite the fact that he was married to a German national, had two young children and had already been in detention pending trial for almost two years. He risked being imposed a severe prison sentence if convicted and was suspected of belonging to an organisation which was in a position to smuggle persons abroad. Therefore, milder measures, such as his release on bail, were not suitable to avert the danger of his absconding and his continued detention was still proportionate. On 18 April 2005 the Dresden Court of Appeal, endorsing the reasons given by the Regional Court in its decisions, dismissed the first applicant’s appeal as ill-founded. On 19 May 2005 the Dresden Court of Appeal, following the first applicant’s remonstrance, refused to amend its decision of 18 April 2005. It considered, in particular, that the first applicant’s continued detention was not disproportionate in the light of the case-law of the Federal Constitutional Court and the European Court of Human Rights on the subject-matter. The sentence he risked being imposed if convicted largely exceeded the length of his detention pending trial until then. The Court of Appeal conceded that the proceedings had already lasted for a considerable time. Disagreeing with the first applicant, it found, however, that the prosecution authorities and the Leipzig Regional Court had not delayed the proceedings. The proceedings were very complex, notably because the offences had to be proved by examining the results of numerous intercepted telephone conversations made in a foreign language. The defendants being Indian nationals, the participation of interpreters in the proceedings was necessary. Moreover, the defendants’ lawyers had lodged numerous motions in the sixty hearings of the case held until then, which had prolonged the proceedings. It had been sufficient for the Regional Court to hold one hearing per week, which as a rule lasted the whole day. The defendants’ lawyers had rejected the Regional Court’s proposal made in March 2005 both to prolong the duration of the weekly hearing and to hear the case on two days per week, arguing that they were unavailable. On 9 May 2005 the first applicant lodged a complaint with the Federal Constitutional Court against the decision taken by the Dresden Court of Appeal on 18 April 2005 and applied for an interim injunction quashing that decision and releasing him from prison. He subsequently extended his constitutional complaint to comprise also the decision of the Court of Appeal dated 19 May 2005. He claimed that his continued detention pending trial was disproportionate and in breach of the Basic Law, construed in the light of Article 5 § 3 of the Convention. He argued that the proceedings had been unreasonably delayed by the Leipzig Regional Court and that the criminal courts wrongly upheld the detention order on the unfounded assumption that he would abscond if released. On 2 June 2005 the Federal Constitutional Court, without giving reasons for its decision, declined to consider the first applicant’s constitutional complaint and declared that his application for interim measures had thereby become devoid of purpose (file no. 2 BvR 724/05). On 8 February 2005 the Leipzig Regional Court issued a new detention order also against the second applicant, which it upheld on 5 and 19 July 2005 following the second applicant’s request for judicial review and appeal respectively. The second applicant was now charged notably with having infiltrated or having attempted to infiltrate Indian nationals into Germany or other countries of Western Europe on a commercial basis on twelve occasions, acting as a member of a gang on seven of these occasions. As to the evidence in support of the strong suspicion that the second applicant committed these offences and as to the reasons why he risked absconding if released, despite the fact that he had a close relationship with his son living in Grimma, the Regional Court reasoned its order in similar terms as that against the first applicant issued the same day (see above). On 2 August 2005 the Dresden Court of Appeal, endorsing the reasons given in the decisions of the Leipzig Regional Court dated 5 and 19 July 2005, dismissed the second applicant’s appeal in which the latter had complained about the excessive length of his detention pending trial and about the delays caused in the proceedings by the fact that hearings were held only once per week. On 29 August 2005 the Dresden Court of Appeal, on the second applicant’s remonstrance, refused to amend its decision dated 2 August 2005. It took the view that its decision was not contrary to the case-law of the European Court of Human Rights on the reasonable length of detention pending trial referred to by the second applicant. On 28 September 2005 the Dresden Court of Appeal dismissed as inadmissible the second applicant’s request to give him an opportunity for explanation following its decision and also rejected his further remonstrance. On 1 October 2005 the second applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Dresden Court of Appeal of 29 August and 28 September 2005 and applied for an interim injunction ordering his release from prison. He argued that his continued detention pending trial was unconstitutional in view of the protracted length of the proceedings against him. On 25 October 2005 the Federal Constitutional Court, without giving reasons for its decision, declined to consider the second applicant’s constitutional complaint and declared that his application for interim measures had thereby become devoid of purpose (file no. 2 BvR 1659/05). Between 9 December 2003 and 10 January 2006 included, the Leipzig Regional Court held 93 hearings (that is, on average one hearing per week), in the course of which approximately 60 witnesses and experts were heard. In the hearing on 10 January 2006 the Leipzig Regional Court stated that the judges, the applicants’ defence counsel and the Public Prosecutor had discussed an agreement with a view to terminating the proceedings (Verfahrensabsprache). In a decision laid down in the minutes of the hearing, the court declared that it would sentence the first applicant to a maximum of five years and six months’ imprisonment and the second applicant to a maximum of five years’ imprisonment if the applicants made a comprehensive and credible confession concerning certain specified offences they had been charged with. Moreover, the court promised to suspend the sentences imposed and grant probation already when the applicants had served half of their sentence under Article 57 § 2 of the Criminal Code (see Relevant domestic law and practice below) if the information it had obtained to date was correct (in particular that the applicants did not have any previous convictions) and if the formal requirements were met. The applicants then confessed to the offences specified in the Regional Court’s decision. On 17 January 2006 the Leipzig Regional Court pronounced its judgment. It convicted the first applicant of thirteen counts of infiltration or attempted infiltration of foreigners on a commercial basis, acting as a member of a gang on eight occasions, and sentenced him to five years and six months’ imprisonment. It found the second applicant guilty of ten counts of infiltration or attempted infiltration of foreigners on a commercial basis, acting as a member of a gang on seven occasions, and sentenced him to five years’ imprisonment. The court found that the applicants, partly acting together with another brother of theirs living in India, had illegally infiltrated Indian nationals into Germany or other States of Western Europe, notably Great Britain, in exchange for money. It based its findings on the applicants’ confessions, which were confirmed by the transcripts of intercepted telephone conversations and the testimonies of nine witnesses. It took into consideration, as a mitigating factor, inter alia, that the applicants had been in detention pending trial for a long period of time, two years and almost ten months, and had been uncertain about the outcome of the proceedings for a very long period of time due to the long duration of the proceedings. By a decision taken immediately after the pronouncement of the judgment in the hearing, the Leipzig Regional Court quashed the detention orders of 8 February 2005 against both applicants. It then instructed the applicants that they had the right to lodge an appeal on points of law against the judgment and that the agreement with a view to terminating the proceedings reached in the hearing did not bar them from lodging that appeal (so-called qualified instruction – qualifizierte Belehrung). Following an interruption of the hearing, during which the applicants consulted their defence counsel, the applicants waived their right to lodge an appeal with the consent of their defence counsel. The prosecution then also waived its right to appeal. The judgment thereby having become final, the Regional Court suspended the remainder of the prison sentences imposed on the applicants and granted probation pursuant to Article 57 § 2 of the Criminal Code, having regard, inter alia, to the very long duration of the applicants’ detention pending trial. The applicants subsequently lodged an appeal on points of law. They argued that the waiver of their right to appeal was invalid because it was based on an agreement with the court and because only that agreement had made possible their immediate release from prison. On 24 August 2006 the Federal Court of Justice dismissed the applicants’ appeal on points of law as inadmissible. It found that the applicants had validly waived their right to lodge an appeal. Prior to the pronouncement of the Regional Court’s judgment there had been an agreement between that court, the prosecution and the defence aimed at terminating the proceedings. However, the agreement did not comprise a commitment that the defendants waive their right to file an appeal on points of law. According to the minutes, the defendants had been expressly informed by the Regional Court after the pronouncement of the judgment that the agreement reached did not prevent them from lodging an appeal on points of law against the judgment and had thus received the necessary qualified instruction. After a suspension of the hearing, which gave them sufficient time for consideration, they had declared to waive their right to appeal with the consent of their counsel. This waiver was irrevocable. Having regard to the criteria established in its case-law (it referred to the decision of its Grand Chamber of 3 March 2005, no. GSSt 1/04, Neue Juristische Wochenschrift (NJW) 2005, pp. 1440 et seq., see Relevant domestic law and practice below), there were no exceptional grounds rendering the waiver void. Under Article 57 § 2 of the Criminal Code, the courts may suspend the execution of the remainder of a prison sentence and grant probation already when half of the sentence has been served, in particular, if the convicted person is serving his first term of imprisonment and the latter does not exceed two years or if a comprehensive evaluation of the offence, the personality of the convicted person and his development during the execution of the sentence show that special circumstances exist. In its leading decision of 3 March 2005, the Grand Chamber of the Federal Court of Justice laid down the principles governing the validity of a waiver of the right to appeal in the context of agreements with a view to terminating criminal proceedings (no. GSSt 1/04, Neue Juristische Wochenschrift (NJW) 2005, pp. 1440 et seq.). It considered such agreements, in which the criminal courts made a binding declaration on a maximum penalty to be imposed in exchange for the defendant’s confessing to (part of) the offences he was charged with, to be compatible with the Code of Criminal Procedure and the Basic Law if certain conditions were met. In particular, all participants in the proceedings (that is, professional and lay judges, the prosecution, the defence counsel and the defendant) had to be involved in reaching the agreement, the result of which had to be made public in the hearing and had to be included in the minutes. The veracity of the confession made by the defendant in accordance with the agreement had to be verified. The agreement was not allowed to concern the legal qualification of the acts the defendant had been charged with. The penalty proposed by the court still had to reflect the defendant’s guilt and the penalty which, according to the court, was to be expected without a confession could not be disproportionately severe so as to submit the defendant to undue pressure to confess. The court was only allowed to promise a maximum penalty (as opposed to a specified penalty) and could exceed that penalty only if relevant factual or legal aspects had been overlooked and if it had previously averted the defendant in the hearing of its intention to fix a higher penalty. The Federal Court of Justice noted that in view of their heavy workload, the courts would be unable to render criminal justice and to avoid delays in the proceedings without being allowed to have recourse to such agreements. The Federal Court of Justice further observed that in the past, such agreements had in practice often involved the defendant’s promise to waive his right to appeal against the judgment or at least the court’s suggestion to do so. However, the criminal courts were not authorised, in the context of these agreements, to arrange upon a waiver of the right to appeal. An agreement aimed at terminating the proceedings was not to prevent an effective control, by the appeals courts, of the lower courts’ judgments. After the delivery of a judgment which was given following an agreement – irrespective of whether a waiver of the right to appeal had been included or discussed – the court therefore had to instruct the defendant not only about his right to appeal, but in addition on the fact that he was free to lodge an appeal irrespective of the agreement reached (so-called qualified instruction). If such a qualified instruction had not been given, the defendant’s waiver of his right to appeal was void.