PREHN v. GERMANY
Inadmissible
Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger
The applicant, Mr Heiko Prehn, is a German national who was born in 1962 and is currently in preventive detention in Berlin Tegel Prison. He was represented before the Court by Mr C. Tümmler, a lawyer practising in Berlin. On 12 September 1996 the Berlin Regional Court convicted the applicant of two counts of rape. It sentenced him to ten years' imprisonment and ordered his preventive detention (Article 66 of the Criminal Code, see Relevant domestic law below). On 13 April 2005 the applicant requested the Berlin Regional Court to suspend the remainder of his sentence, which he would have served fully on 12 March 2006, and his preventive detention on probation. The applicant was initially represented by counsel K.-B. By letter of 17 January 2006 he requested the Regional Court to appoint counsel B., practising in Bremen, to represent him in the proceedings, arguing that K.-B. was not qualified in respect of the subject-matter of the proceedings whereas counsel B. was specialised in execution of sentences and sexual offences. On 16 February 2006 the presiding judge of the Regional Court dismissed that request, arguing that the applicant was already represented by counsel and that there was no reason to appoint counsel who was not practising within the court's judicial district. On 21 February 2006 the presiding judge of the Berlin Regional Court informed the applicant that counsel K.-B. had withdrawn from the case and that it intended to appoint counsel K., practising in Berlin and specialised in criminal law, to represent him (Article 140 § 2 of the Code of Criminal Procedure, applied by analogy; see Relevant domestic law below). The applicant was invited to either give grounds if he objected to that appointment, to propose a different counsel practising in Berlin as officially appointed counsel or to mandate a new counsel. By letter dated 20 February 2006, counsel B. submitted a power of attorney and applied for access to the case-file and to be officially appointed as the applicant had insufficient means to afford a lawyer. Having received that letter, the presiding judge of the Regional Court asked counsel B. by letter dated 23 February 2006 whether he intended to act as the applicant's mandated counsel; otherwise, the court would appoint a lawyer practising in Berlin. The presiding judge further refused B. access to the case-file because it was not sure whether the files would be available for the hearing scheduled on 13 March 2006 if they were sent to Bremen after having been returned by the expert. By a decision of the same day, the presiding judge of the Regional Court dismissed the applicant's fresh request to appoint counsel B. to represent him. He found that there was nothing to indicate that a firm relationship of trust had developed between them which would justify appointing B. despite the considerable additional costs involved. On 28 February 2006 the presiding judge of the Berlin Regional Court, having received no objections by counsel B., appointed counsel K. to act for the applicant. On 7 March 2006 the Public Prosecutor General, in his submissions on the applicant's appeal against the decision of 23 February 2006, took the view that the applicant's appeal was well-founded as the Regional Court should have appointed him counsel B. as he had requested. The Public Prosecutor General considered that in cases in which the detainee, as in the present case, had proposed to appoint him defence counsel who met the professional requirements and was able to guarantee a proper conduct of the proceedings, the court had to appoint him the counsel he had chosen. This equally applied in cases in which the defendant had chosen a counsel who was not practising within the court's judicial district. Weighing the interests involved, the interest in proximity was outweighed by the defendant's interest in being defended by a counsel he particularly trusted in. The distance between Berlin and Bremen, having regard to the good traffic connections and modern means of communication, did not jeopardize a proper defence and conduct of the proceedings. On 13 March 2006 the Berlin Court of Appeal dismissed the applicant's appeal against the Regional Court's decision of 23 February 2006 refusing to appoint him a counsel not practising within the court's judicial district as ill-founded. It agreed with the Public Prosecutor General's view that the applicant had to be represented by counsel in the proceedings at issue pursuant to Article 140 § 2 of the Code of Criminal Procedure, applied by analogy, as the proceedings were complex, as the decision on the applicant's preventive detention was of importance and as the applicant could not defend himself in person in the hearing in which an expert report on him had to be examined. However, unlike the Public Prosecutor General, the Court of Appeal considered that the Regional Court had not been obliged to appoint the applicant counsel B., who was not practising within its judicial district. The appointment of defence counsel named by the detainee required, as a rule, that he proposed a lawyer admitted to practise within the court's judicial district (Article 142 § 1 of the Code of Criminal Procedure; see Relevant domestic law below). This rule was adequate because defence counsel's proximity to the court was essential in order to conduct a proper defence. It facilitated the conduct of the proceedings and counsel's communication with his client in detention – for which modern methods of communication did not make a difference – and with the other parties to the proceedings. The lack of proximity was a significant ground not to appoint a lawyer chosen by the detainee for the purposes of Article 142 § 1 of the Code of Criminal Procedure. Counsel B. resided more than 100 kilometres away from the court and from the prison in which the applicant was detained. The Court of Appeal further found that an external counsel could only be appointed in exceptional cases, in which there was a particular relationship of trust between him and the detainee. However, there was nothing to indicate and the applicant failed to substantiate that there was a firm relationship of confidence between him and counsel B. The applicant had never met in person counsel B. who had never previously defended him. The fact that counsel B. had applied for access to the case-file did not suffice to demonstrate such a relationship of trust. There was also nothing to indicate that counsel B. was more experienced in execution matters than counsel K. who had been appointed to represent the applicant. On 4 April 2006 the presiding judge of the Berlin Regional Court dismissed the applicant's fresh request dated 24 March 2006, made in person, to appoint counsel B. to represent him in the proceedings concerning the execution of his sentence. Relying on Article 140 § 2 of the Code of Criminal Procedure, applied by analogy, the court found that the applicant had already been appointed counsel K. for the proceedings at issue and that there were no apparent grounds to appoint him another counsel. On 18 May 2006 the Berlin Court of Appeal, endorsing the reasons given by the Regional Court, dismissed the applicant's appeal. The Berlin Court of Appeal disagreed with the applicant's view that he was not represented by counsel in accordance with the requirements of a fair trial. It further rejected counsel B.'s argument that the court's appointment of counsel K. was arbitrary in view of what was at stake in the proceedings, the applicant's preventive detention. The Court of Appeal expressly endorsed the reasons it had given in its decision of 13 March 2006 (see above), in which it had already dismissed the applicant's request to appoint counsel B. by a final decision. These reasons also applied if the applicant had to be understood now to have requested the appointment of counsel B. to a more limited extent, namely only in order to appeal against a decision taken on his challenges for bias. Having regard to the complexity of the proceedings, the applicant had been appointed counsel K. for the entire proceedings concerning his preventive detention. As the Court of Appeal had dismissed the applicant's request to be appointed counsel B. by its final decision of 13 March 2006, the applicant's new request to be appointed counsel B. for the proceedings or for parts thereof was inadmissible. On 5 June 2006 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decision of the Berlin Court of Appeal of 18 May 2006. He complained about the failure to appoint him the counsel of his choice, B., and argued that this had deprived him of an effective defence and had led to his prolonged detention beyond 12 March 2006 when he had fully served his sentence. On 27 June 2006 the Federal Constitutional Court declined to consider the applicant's constitutional complaint as it lacked prospects of success (file no. 2 BvR 1203/06). The Federal Constitutional Court reiterated that the right of a defendant to a fair trial comprised the right, aimed at ensuring equality of arms, to defend himself by counsel of his own choosing. Therefore, if the requirements of Article 140 of the Code of Criminal Procedure were met, the defendant should be appointed the lawyer he or she trusted in unless there were important grounds not to do so. However, a defendant could not claim to be represented by a counsel proposed by him in all circumstances. The Federal Constitutional Court found that the impugned decision of the Berlin Court of Appeal of 18 May 2006 complied with these constitutional requirements. In its thoroughly reasoned decision of 13 March 2006, to which the impugned decision had referred, the Court of Appeal considered that a lawyer who did not practise within the court's judicial district could only be appointed by the court if there was a special relationship of trust between that counsel and the applicant. It had not been arbitrary for the Court of Appeal to refuse to appoint the lawyer not practising within the court' On 18 September 2006 the Regional Court, having regard to the report submitted by a psychiatric expert it had consulted, ordered that the applicant be placed in preventive detention pursuant to Article 67c § 1 of the Criminal Code (see Relevant domestic law below). Article 140 of the Code of Criminal Procedure lays down the circumstances in which a defendant must be represented by defence counsel. Pursuant to paragraph 2 of Article 140, the presiding judge shall appoint defence counsel on request or ex officio if the assistance of defence counsel appears necessary in view of the seriousness of the offence or in view of the factual or legal complexity of the proceedings or if it is evident that the defendant cannot defend himself in person. The latter provision is applied by analogy, in particular, to proceedings under Article 67c § 1 of the Criminal Code for review, before completion of the offender's prison term, of whether the execution of a preventive detention order against him or her is still necessary in view of its objective to protect the public from a dangerous offender (see Article 66 of the Criminal Code) or shall be suspended on probation. Article 142 § 1 of the Code of Criminal Procedure, in its version in force at the relevant time, provided that defence counsel to be appointed shall be chosen by the presiding judge, if possible, from the group of lawyers admitted to practice before a court within the court's judicial district. The defendant is to be given the opportunity of naming an attorney-at-law within a time-limit to be specified. The presiding judge shall appoint defence counsel named by the defendant unless there are significant grounds for not doing so.