RUPP v. GERMANY
Inadmissible
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
1. The first applicant, Ms Hermine Rupp (application no. 60889/12), is a German national who was born in 1955 and lives in Schongau. She was represented before the Court by Mr K. Wittmann, a lawyer practising in Ingolstadt. 2. The second applicant, Ms Manuela Rupp (application no. 60893/12), is a German national who was born in 1985 and lives in Neuburg a.d. Donau. She was represented before the Court by Ms R. Rick, a lawyer practising in Munich. 3. The third applicant, Ms Andrea Rupp (application no. 60879/12), is a German national who was born in 1986 and lives in Neuburg a.d. Donau. She was represented before the Court by Ms A. Brossin de Méré, a lawyer practising in Paris. 4. The facts of the cases, as submitted by the applicants, may be summarised as follows. 5. The first applicant is the mother of the other two applicants. 6. The first applicant was married to R.R., who was the father of the other two applicants. 7. R.R. disappeared in the night of 12 October 2001 and subsequently did not reappear; neither did his car, which had disappeared the same night. 8. On 14 October 2001 the first applicant reported R.R. missing. 9. The investigations had initially been terminated without any results. They were reopened by the Ingolstadt police in November 2003. 10. On 13 January 2004 the applicants and the second applicant’s fiancé, M.E., were taken to the police station. The applicants’ house was searched the same day, without any evidence being found. All three applicants were questioned that day, first as witnesses and after a couple of hours as suspects. They were represented by counsel from that day on. 11. When being questioned on that day, the first applicant confessed that R.R. had come home drunk in the night of 12 October 2001 and she had pushed him during an argument. As a consequence R.R. had fallen down the stairs. She and M.E. had carried R.R.’s corpse away. On 14 January 2004 she added that she had wiped away a pool of blood, carried the corpse to R.R.’s car and submerged both the car and the corpse in a pond near the village of Irgertsheim the same night. On 21 January 2004 she withdrew these confessions. During subsequent questioning she repeatedly stated that R.R. had not come home that night. 12. The second applicant stated in her first interview, on 13 January 2004, that her father had not returned home that night. A couple of days later she changed her statement and alleged that her mother had accidentally pushed her father and he had fallen down the stairs. On 4 February 2004, during a video-taped reconstruction of the crime scene with the police, she stated that her fiancé alone had killed her father with a club. On that day she was told by a police officer that there was a rumour that her father’s corpse had been fed to the dogs. Later the same day she stated that her mother had also hit her father with a club. On 18 and 21 February 2004 she stated that it had been her fiancé alone who had killed her father, cut the corpse into pieces and fed it to the dogs. After she had withdrawn all confessions, on 1 June 2004 she incriminated herself, alleging that she had killed her father with a hammer, and her fiancé had burnt the corpse. She withdrew that confession as well, alleged sexual abuse by her father and repeated some of the other versions. 13. The third applicant stated in her first interview, on 13 January 2004, that she did not know whether her father had returned that night or not. After a police officer alleged that her mother and the second applicant’s fiancé had confessed to the killing, she complained of sexual abuse by her father that night, after which her mother and father had had a row and her mother had pushed him down the stairs. On 23 January 2004 she declared that the second applicant’s fiancé and her mother had killed her father with a club. On 3 February 2004 she changed her version and alleged that a hammer had been used. On 19 March 2004 she again alleged abuse by her father that night. As a consequence, the second applicant’s fiancé had pushed him down the stairs and disposed of the corpse along with the car. On 28 April 2004 she changed her story once more, alleging that the hitting had taken place on the staircase and that her father’s corpse had been cut into pieces and fed to the dogs. Afterwards she denied having seen anything at all. Finally she withdrew all confessions. 14. The second applicant’s fiancé, M.E., stated at his first interview that the first applicant had killed R.R. with a club and that he had helped her to dispose of the corpse and the car in a pond near the village of Irgertsheim. He repeated this version several times until 15 April 2004. Then he alleged that he had hit R.R. with a club, carried the corpse into the cellar, cut it into pieces, boiled the head in a pot and fed the pieces to the dogs. Later on he alleged that the first and the second applicants had participated in hitting R.R. On 11 May 2004 he changed his confession, and alleged that he alone had hit R.R. in the neck. In October 2004 he withdrew all confessions. 15. After the withdrawal of their confessions, all the applicants alleged that they had made their confessions because the police officers had put pressure on them. 16. The applicants were in pre-trial detention throughout the criminal proceedings. 17. On 13 May 2005 the Ingolstadt Regional Court convicted the first applicant and the second applicant’s fiancé M.E. of manslaughter and sentenced the first applicant to eight years and six months’ imprisonment. The second and third applicants were convicted of having aided and abetted the manslaughter by omission and were sentenced to three years and six months’ and two years and six months’ imprisonment respectively. The Ingolstadt Regional Court was convinced that R.R. had returned home drunk with his car that night, had been killed by the first applicant and the second applicant’s fiancé, and had then been cut into pieces and fed to the dogs. The car had been destroyed in a scrap baling press. The second and third applicants had witnessed the killing without helping R.R. The court’s findings with regard to the events of the crime were based on the testimony of the police officers who had interviewed the applicants and the second applicant’s fiancé during the investigations. At that time neither R.R.’s corpse nor the car had been found. 18. As regards the applicants’ criminal liability the Regional Court relied in detail on two expert reports. The first report concerned the applicants’ and M.E.’s mental health. It asserted that the first applicant had an intelligent quotient of 53 and she therefore suffered from reduced mental capacity on the threshold of severe mental retardation (Debilität im Grenzbereich zur Imbezilität), the second applicant had an intelligence quotient of 71 which could be classified as a learning disability (unterdurchschnittliche Intelligenz im Bereich der Lernbehinderung), and the third applicant had an intelligent quotient of 63 and she therefore suffered from reduced mental capacity as well (Debilität). The second applicant’s fiancé, M.E. was found to have an intelligence quotient of 70. The second report concerned the question whether their reduced mental capacity diminished or excluded their criminal liability, which was answered in the negative. 19. The applicants appealed on points of law. On 10 January 2006 the Federal Court of Justice dismissed their appeal. 20. The applicants and M.E. served their sentences: the first applicant until 12 November 2009, the second applicant until 2 February 2006 and the third applicant until 27 October 2005. 21. On 10 March 2009 R.R.’s corpse was found, sitting in his car at the Bergheim barrage of the Danube in Neuburg a.d. Donau. A commissioned expert came to the conclusion that R.R. had not been killed by blunt force to his head, backbone or rib cage. The corpse, which was in rather good condition considering the fact that it had been in the water for several years, did not show any appearance of having suffered external force. 22. In July 2009 the applicants and M.E. requested the reopening of the proceedings and claimed monetary compensation for wrongful detention on remand and imprisonment after trial. 23. On 17 November 2009 the Landshut Regional Court rejected the request to reopen the proceedings. On the applicants’ and M.E.’s appeal against this decision, the Munich Court of Appeal granted their request to reopen the proceedings. 24. On 31 March 2010 the Landshut Regional Court reopened the proceedings and subsequently held several hearings. The proceedings against the third applicant were separated from those of the first and second applicants and M.E. due to her physical condition (see paragraph 33 below). 25. On 25 February 2011 the Landshut Regional Court acquitted the first applicant and M.E. of manslaughter and the second applicant of having aided and abetted manslaughter by omission. 26. In part B of the judgment the Regional Court assessed the first and second applicants’ mental health. It relied on two expert opinions, which confirmed those obtained in the first set of proceedings, namely that the first applicant had an intelligence quotient of 53 and the second applicant of 71 and both therefore suffered from reduced mental capacity. 27. Part E of the judgment contained the reasons for the acquittal. The court expressed its conviction that R.R. had arrived home at 12.45 a.m. The court was unable to establish what exactly had happened afterwards, but it was certain that one, some or all of the accused had acted in a way which had finally caused R.R.’s death during that night. The court was unable to establish which of the accused had participated in these actions, how R.R.’s death had been caused and how the corpse and the car had come to be disposed of at the barrage of the Danube. As nothing pointed to suicide or death by violence on the way home, in the acquitting court’s view R.R.’s death must have occurred after he arrived home. The fact that R.R. had returned home had been confirmed by the applicants and M.E. during the first set of proceedings. 28. The Regional Court considered that the applicants’ and M.E.’s statements could be used as evidence as there was nothing to indicate that prohibited methods of questioning had been used. In so far as the police officers had confronted the applicants in a few cases with incorrect facts, their method of questioning had to be considered as a minor attempt to mislead which did not interfere with the applicants’ right to silence. The fact that the applicants had been interrogated as witnesses at the beginning of their first interview, and not immediately as suspects, did not lead to the inadmissibility of the statements as evidence either. Furthermore, throughout the proceedings neither the applicants nor their counsel had claimed specifically that the police officers had used illegal pressure during questioning. The general allegation in this regard was unsubstantiated and nothing in the course of the proceedings indicated that the police officers had used leading questions to obtain confessions. Furthermore, the videotaped reconstruction of the crime scene, which the court had viewed, had not given any impression of psychological pressure on the applicants’ free will when talking about the crime. 29. In two separate sections subsequent to the acquitting part of the judgment the Regional Court also issued the decision concerning costs and expenses and the decision concerning compensation. The decision concerning costs and expenses was titled part F and the decision concerning compensation part G. The Regional Court ordered the treasury to pay the costs of the proceedings but declined to reimburse the applicants’ legal costs and expenses in accordance with Article 467 § 3 of the Code of Criminal Procedure (see paragraph 45 below). It further dismissed the applicants’ monetary compensation claims with regard to their pre-trial detention and their imprisonment in accordance with Article 5 § 2 of the Act on Compensation for Prosecution Measures (Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen, see paragraphs 46 to 49 below). 30. The court found that these claims were to be rejected because the applicants had caused both their detention on remand and their imprisonment by culpable negligence. It argued that the applicants had acted with culpable negligence because they incriminated themselves by making either deliberately wrong statements, or statements which could be proved neither true nor false. 31. As to the confessions of the first applicant, the court held that the first applicant’s statement of 14 January 2004, that she had lowered R.R.’s corpse and the car into a pond near the village of Irgertsheim, had been untrue because both the corpse and the car had been found at a barrage of the Danube. Furthermore, in 2004 the first applicant had incriminated herself during the first set of proceedings when stating that R.R. had returned home on the night of his disappearance, while in 2001 she had reported him missing. Thus she herself had created a strong suspicion that she had killed R.R. As a result, she had caused the indictment and the judgment by culpable negligence. Regarding the question of whether her reduced mental capacity discharged the first applicant of culpable negligence, the court observed that she had been able to follow the court proceedings and had been capable of answering questions during the police investigations in 2004 after thorough reflection. Her mental capacity was not such that she could not easily foresee that her statements would lead to the strong suspicion that she had killed R.R. 32. In so far as on 1 June 2004 the second applicant had admitted to having hit R.R.’s skull with a hammer, the Landshut Regional Court found that this self-incrimination had been untrue because the expert who examined R.R.’s corpse had come to the conclusion that R.R.’s skull had been intact. As a consequence, the second applicant had created a strong suspicion against herself concerning R.R.’s death. Furthermore, the court found that the second applicant had incriminated herself by her statements when questioned on 13 January, 4, 18 and 21 February 2004, even though the court was not able to determine whether these statements had been true or false. Despite her reduced mental capacity, the Landshut Regional Court was convinced that in 2004 the second applicant had been able to foresee that her statements would create a strong suspicion against her, because most of her self-incriminating statements had been very grave, repeated and given after having consulted her counsel. In the court’s view, the commissioning of an expert on grounds of her reduced mental capacity had not therefore been necessary. Lastly, nothing indicated that these statements were made in response to unlawful questioning. 33. On 11 May 2011 the third applicant was also acquitted of having aided and abetted manslaughter by omission for the same reasons as set out in the Regional Court’s judgment of 25 February 2011. The Regional Court found that she had an intelligent quotient of 63 and that she therefore suffered from reduced mental capacity. As regards the reimbursement of costs and compensation, the third applicant was awarded monetary compensation solely for the first day of her detention on remand. The acquitting court found that the third applicant caused both her detention on remand and her imprisonment by culpable negligence. Her statement of 28 April 2004, that M.E. had killed R.R. with a hammer and that the corpse had been cut into pieces and fed to the dogs, had been untrue because the corpse had been found at the barrage. Therefore, the third applicant had also created a strong suspicion against herself concerning R.R.’s death. Regarding her allegation that she had been sexually abused by R.R. on the night of his disappearance, the court could not determine whether this statement was true or false. However, since she had withdrawn these statements later on this was of only minor importance, because she had equally caused her indictment and imprisonment by culpable negligence. The court found that the third applicant’s reduced mental capacity did not discharge her of culpable negligence. Despite this disability she had been able to express herself clearly and had incriminated herself gravely and repeatedly while advised by counsel. Nothing indicated that she had not been able to understand the importance and meaning of her statements. Furthermore, she made her statements in the presence of her counsel. 34. The applicants appealed against the Landshut Regional Court’s two decisions to refuse monetary compensation and the reimbursement of legal costs and expenses. 35. On 14 July 2011 (concerning the third applicant) and 26 July 2011 (concerning the first and the second applicants) the Munich Court of Appeal rejected the appeals against the refusal of monetary compensation for their imprisonment. The court pointed out that, when assessing whether the criminal proceedings and the convictions had been caused by culpable negligence, the point of view at the time of the first set of proceedings was decisive. A refusal of monetary compensation under Article 5 § 2 of the Act on Compensation for Prosecution Measures was limited to cases where the person concerned had acted with gross negligence. It was therefore not sufficient to draw a suspicion on oneself. The person concerned must have substantially influenced the criminal proceedings or the conviction by his conduct. 36. Applying these principles to the applicants’ cases, the Munich Court of Appeal fully endorsed the legal reasoning of the Landshut Regional Court in part G of the judgment concerning compensation. The alleged use of psychological pressure during the police questionings did not change this assessment. Even if there might have been such a situation, both the constancy and severity of the self-incrimination and the fact that the applicants had been represented by counsel during their various statements had to be taken into account. Furthermore, in view of the expert opinions commissioned in 2004 and during the proceedings at issue nothing indicated that the applicants’ criminal liability had been diminished or excluded at the time they had made their statements. The Munich Court of Appeal noted that during the hearings before the Landshut Regional Court the court had received advice both from a psychologist and a psychiatrist. There had been no reason on the basis of the related request to take further evidence to obtain an additional psychological expert opinion in respect of the applicants’ statements during the first set of proceedings. 37. In the decision dated 26 July 2011 concerning the denial of compensation for the first and the second applicant the Munich Court of Appeal additionally mentioned that the Landshut Regional Court had respected the applicants’ right to be presumed innocent as guaranteed by Article 6 § 2 of the Convention. It noted that the Landshut Regional Court had been permitted to voice a remaining suspicion against the applicants, as long as it clearly stated that any remaining suspicion did not amount to a finding of guilt. These requirements were fulfilled because the Regional Court, in stating that it was convinced that one or all of the accused had caused R.R.’s death without being able to establish which of the accused and in what way, had not commented on the applicants’ guilt but on whether the evidence before it left any suspicious circumstances. 38. On 12 September 2011 the Munich Court of Appeal further rejected the applicants’ appeal against the refusal of reimbursement of legal costs and expenses, fully endorsing the Munich Court of Appeal’s reasoning in its decision of 26 July 2011 while referring to part F of the Regional Court’s judgment. 39. The first applicant complained of a violation of her right to be heard regarding both decisions of the Munich Court of Appeal. The second applicant lodged a motion to be heard and statement of objections (Gegenvorstellung) against the Court of Appeal’s refusal to pay monetary compensation. The third applicant lodged a motion to be heard against the refusal of monetary compensation and statements of objections against the refusal to reimburse legal costs. All requests were rejected by the Munich Court of Appeal. 40. The first applicant lodged a constitutional complaint with the Federal Constitutional Court against the Court of Appeal’s decisions denying compensation and reimbursement of costs and expenses. In so far as they have submitted, the second and third applicant only lodged constitutional complaints with the Federal Constitutional Court against the Court of Appeal’s decisions refusing the reimbursement of legal costs and expenses. All the applicants alleged that the Munich Court of Appeal’s decisions violated their right to be heard, their right to be presumed innocent and their right to an effective remedy. 41. On 15 March 2012 the Federal Constitutional Court declined to consider the second applicant’s constitutional complaint concerning the refusal of reimbursement of legal costs without providing reasons (file no. 2 BvR 2192/11). 42. On 16 March 2012 the Federal Constitutional Court declined to consider the first applicant’s constitutional complaints concerning both the refusal to reimburse legal costs and the refusal to pay monetary compensation, without providing reasons (file no. 2 BvR 2368/11). 43. On 16 March 2012 the Federal Constitutional Court declined to consider the third applicant’s constitutional complaint (file no. 2 BvR 2374/11). 44. Article 467 § 1 of the Code of Criminal Procedure provides, inter alia, that where the indicted accused is acquitted, his necessary costs and expenses shall be borne by the Treasury. 45. Article 467 § 3 of the Code of Criminal Procedure reads as follows: “(3) The indicted accused’s necessary expenses shall not be charged to the Treasury if the indicted accused caused the preferring of public charges by filing criminal information in which he claimed to have committed the offence with which he was charged. The court may dispense with charging the indicted accused’s necessary expenses to the Treasury if 1. he caused the preferring of public charges by falsely incriminating himself with regard to material points or in contradiction to his later statements or by concealing material exonerating circumstances despite having made a statement in response to the accusation, or ....”. 46. Compensation for damage caused, inter alia, by wrongful prosecution, detention on remand or imprisonment is covered by the Act on Compensation for Measures of Criminal Prosecution (Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen). 47. Pursuant to section 1 of that Act, a defendant is notably entitled to compensation for damage incurred by a criminal conviction if the conviction is quashed in re-opened proceedings. 48. According to Article 2 § 1 of the Act on Compensation for Prosecution Measures, a person who has been held in detention on remand may claim compensation if he was acquitted or if the proceedings against him were otherwise discontinued. 49. Article 5 § 2 of the Act on Compensation for Prosecution Measures provides that compensation under that Act is ruled out if the accused caused the prosecution deliberately or by culpable negligence (vorsätzliche oder grob fahrlässige Verursachung). The latter is established when it has to be said of an accused that he himself prompted the criminal proceedings by behaving in a way which failed to take into account the elementary fact that such behaviour would obviously lead to criminal proceedings.