CASE OF HUMMER v. GERMANY
Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
6. 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. 7. 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. 8. 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. 9. On 16 December 2003 the Kronach District Court issued a warrant for the applicant’s arrest. The applicant was arrested on 19 December 2003 and remanded in custody. By a decision of the Coburg Regional Court of 6 October 2004 the applicant was transferred to a psychiatric hospital pending trial. 10. 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 Court found 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 wounds were 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). 11. The Regional Court qualified 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). 12. 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 23 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 8 December 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. 13. 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 Code of Criminal Procedure as 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). 14. 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. 15. 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 he had 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 the criminal 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. 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 judges on 5 September 2006. 21. 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. 22. 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). 23. 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). 24. 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). 25. 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). 26. 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. 27. 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.