CASE OF BIKAS v. GERMANY
No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence;Proved guilty according to law)
André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer
6. The applicant was born in 1958 and lives in Leipzig. 7. On 30 October 2009 the Munich II Public Prosecution Office charged the applicant with coercion to engage in sexual activity in at least 300 cases and with sexual coercion in another eighteen cases. 8. On 20 July 2012 the Munich II Regional Court, after taking evidence at seventeen days of hearing, issued a decision limiting the prosecution to charges concerning four incidents which had taken place between 19 and 25 August 2007. The court provisionally discontinued the proceedings in respect of all the other offences the applicant had been charged with (see paragraph 7 above), in accordance with Article 154 § 2 of the Code of Criminal Procedure (see paragraph 17 below), in view of the penalty the applicant could expect for the four remaining incidents. The applicant was further informed that if he was convicted the court could take into account findings made in respect of the other incidents when setting his sentence. 9. In a judgment delivered on the same day, the Regional Court convicted the applicant of four counts of coercion to engage in sexual activity, committed between 19 and 25 August 2007, and sentenced him to six years’ imprisonment. 10. In its findings of fact, the Regional Court stated that between January 2001 and October 2007 the applicant had forced P., aged between 29 and 35 at the relevant time and suffering from a moderate mental disorder and an autistic and speech disorder, to satisfy him manually or orally on at least fifty further occasions (out of the at least 300 offences the applicant had initially been charged with, see paragraph 7 above). The court had regard to P.’s extensive description of different incidents, which happened either in the house the applicant and P. were both living in or in the applicant’s car. P. had notably explained how the applicant had regularly, when his wife and son were absent, brought her into his apartment or in the basement boiler room, had undressed himself and had instructed her how to satisfy him, partly while playing pornographic films. The applicant had systematically threatened P. that she would have to return to a home for the disabled if she did not comply with his requests. From 19 to 25 August 2007, when the applicant’s wife and son were on holiday, the applicant had forced P. to satisfy him orally at least twice and to satisfy him manually on two further occasions in their house or in the basement boiler room. The veracity of P.´s consistent statements was confirmed by further witnesses and three psychological expert opinions on P.´s credibility and ability to testify. 11. The Regional Court explained that it had restricted the conviction to the four events that had taken place between 19 and 25 August 2007. It had discontinued the proceedings in respect of the at least 300 further charges under Article 154 § 2 of the Code of Criminal Procedure but was convinced that in at least fifty cases there had been incidents comparable to the four of which the applicant was formally convicted. It had simply been impossible to determine their exact time and place due to the victim’s speech disorder. 12. In the impugned passages of the judgment, the Regional Court found as follows: “The chamber is convinced on the basis of the credible statement by the injured party that in addition to the four cases between January 2001 and October 2007 on which judgment was passed, at least 50 other comparable cases occurred. The injured party herself said that the applicant had coerced her to perform sexual acts from as early as 2001. From 2003, the frequency of these incidents had increased and the applicant had demanded sexual gratification from her approximately every 1½ weeks. Even if one were to disregard the years 2001 and 2002 and August and October 2007 in favour of the applicant and also to presume that from 2003 onwards, such incidents occurred only once a month there are 56 cases. Following the deduction of a further safety margin the chamber assumes that there were at least 50 more, comparable cases during the total period from January 2001 to October 2007. ... On the other hand, the chamber considers as an aggravating element that it is convinced that, in addition to the four incidents in August 2007 which the accused has been convicted of, there have been at least 50 comparable incidents since January 2001. A conviction for those events was only made impossible by the victim’s incapacity to substantiate them in terms of the time and the place where they happened in a manner making it possible to define them as procedural offences (offences in the procedural sense). As it could no longer be determined with certainty in which cases the accused, by his threats, made the victim satisfy him orally or manually, the chamber will proceed on the basis that there were 50 further cases of manual satisfaction.” (“Die Kammer ist aufgrund der glaubhaften Aussage der Geschädigten davon überzeugt, dass es neben den vier abgeurteilten Taten im Zeitraum Januar 2001 bis Oktober 2007 zu mindestens 50 weiteren, vergleichbaren Fällen kam. Die Geschädigte selbst gab an, der Angeklagte habe sie bereits ab dem Jahr 2001 zu sexuellen Handlungen genötigt. Ab dem Jahr 2003 sei die Frequenz dieser Vorfälle gestiegen und der Angeklagte habe ungefähr alle 1 ½ Wochen sexuelle Befriedigung von ihr verlangt. Selbst wenn man zugunsten des Angeklagten die Jahr 2001 und 2002 sowie den August und Oktober 2007 unberücksichtigt lässt und zudem davon ausgeht, dass es ab dem Jahr 2003 lediglich einmal im Monat zu derartigen Vorfällen kam, so ergeben sich 56 Fälle. Nach Abzug eines weiteren Sicherheitsabschlags geht die Kammer von mindestens 50 weiteren, vergleichbaren Fällen im gesamten Zeitraum von Januar 2001 bis Oktober 2007 aus. ... Andererseits wertet die Kammer zu Lasten des Angeklagten den Umstand, dass es nach Überzeugung der Kammer neben den verurteilten vier Vorfällen im August 2007 bereits ab Januar 2001 zu mindestens 50 vergleichbaren Vorfällen gekommen war. Eine Verurteilung dieser Vorfälle scheiterte lediglich an der mangelnden Fähigkeit der Geschädigten, die Vorfälle zeitlich und örtlich so zu konkretisieren, dass diese als prozessuale Taten abgrenzbar waren. Da sich nicht mehr mit Sicherheit aufklären ließ, in welchen Fällen der Angeklagte die Geschädigte durch seine Drohung zu einer oralen und in welchen zu einer manuellen Befriedigung brachte, geht die Kammer insoweit von 50 weiteren Fällen der manuellen Befriedigung aus.”) 13. In an appeal on points of law to the Federal Court of Justice, the applicant complained that the Regional Court had breached the presumption of innocence guaranteed by Article 6 § 2 of the Convention by taking fifty unproven incidents into account as an aggravating factor meriting a more severe sentence, despite the fact that the proceedings in relation to them had been discontinued under Article 154 of the Code of Criminal Procedure. 14. The Federal Public Prosecutor General argued that the Regional Court had been entitled to take account of the sexual offences committed previously by the applicant as an aggravating element as part of his previous history (Vorleben) and thus as one of the elements in setting his sentence under Article 46 § 2 of the Criminal Code (see paragraph 18 below). In accordance with the Federal Court of Justice’s case-law, the Regional Court had made sufficient findings of fact establishing a minimum level of guilt in respect to those offences. 15. On 6 February 2013 the Federal Court of Justice dismissed the applicant’s appeal as ill-founded, without giving specific reasons. 16. In a decision of 16 May 2013, which was served on the applicant’s lawyer on 28 May 2013, the Federal Constitutional Court, without giving reasons, declined to consider a constitutional complaint by the applicant, in which he had again complained of a breach of the presumption of innocence (file no. 2 BvR 575/13).