R.S. v. GERMANY
Inadmissible
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Síofra O’Leary;Yonko Grozev
1. The applicant, Mr R.S., is a German national who was born in 1979 and lives in Berlin. He was represented before the Court by Mr M. Manzel, a lawyer practising in Berlin. 3. The applicant was a soldier in the German armed forces from 1 March 2001 until 28 February 2013. On the first day of his service, he was formally instructed that, pursuant to the pertinent internal regulation of the armed forces, the consumption of drugs was prohibited both on duty and off duty and was subject to disciplinary sanctions (see paragraph 25 below). From July 2002 until March 2009, the applicant consumed cannabis in his spare time on several occasions. 4. After another soldier had informed the applicant’s disciplinary superior (Disziplinarvorgesetzter) about this, the latter confronted the applicant with the accusation on 20 March 2009. The applicant denied having consumed drugs and agreed to have a rapid drug test carried out that same day. As the test turned out to be positive, the applicant was questioned a second time. The disciplinary superior informed the applicant of his right to remain silent by virtue of Section 32 of the Disciplinary Code of the German Armed Forces (see paragraph 26 below), but did not tell him about the possibility of contacting a lawyer, as this right was not laid down in the said provision. The disciplinary superior also told the applicant that, if he chose not to remain silent, he was obliged to make true statements under the Disciplinary Code. The applicant then confessed to having consumed cannabis. 5. On 26 March 2009 the disciplinary superior informed the Public Prosecutor, who launched preliminary criminal proceedings against the applicant. On 30 June 2009 these proceedings were discontinued because the applicant’s guilt was considered to be of a minor nature and because prosecution was not in the public interest. 6. On 26 March 2009 the applicant’s disciplinary superior informed the Prosecutor of the armed forces (Wehrdisziplinaranwalt) that he had referred the matter to the Public Prosecutor. On 21 April 2009, in an internal document, the Prosecutor of the armed forces ordered a preliminary investigation. 7. On 22 April 2009 the applicant, of his own motion, went to see the deputy of the disciplinary superior. He again admitted to having consumed cannabis. 8. Following the applicant’s second confession, his disciplinary superior advised him to see the Vertrauensperson (“person of confidence”, see paragraph 27 below) so as to give him the opportunity to convince the latter to make a statement that was favourable to him. The disciplinary superior informed the applicant of his right to object to the Vertrauensperson being part of the proceedings. As the applicant did not object, the disciplinary superior also asked the Vertrauensperson to talk to the applicant. Shortly after, the applicant went to see the Vertrauensperson and told him about the background of his drug consumption. 9. On 28 April 2009, after the Prosecutor of the armed forces had asked the disciplinary superior to do so, the applicant was informed for the first time of his right to contact a lawyer. He was also asked whether he agreed to the Vertrauensperson being given access to the file. The applicant gave his consent without asking a lawyer for advice. 10. On 11 May 2009 the applicant was formally questioned for the first time. He remained silent. The same day, the Vertrauensperson was questioned and gave evidence about the applicant’s statements during their conversation, as the applicant had not objected to the Vertrauensperson being heard (see paragraph 27 below). 11. On 27 May 2009 disciplinary court proceedings against the applicant were opened. This decision was served on the applicant on 8 June 2009. 12. On 7 October 2009 the Prosecutor of the armed forces charged the applicant with the disciplinary offence of having breached his duties with intent by regularly consuming cannabis from 2002 to 2009. 13. On 29 July 2010 the Northern Military Court found the applicant guilty of a disciplinary offence pursuant to Section 23 § 1 of the Act on the Legal Status of Soldiers (see paragraph 25 below). It ordered that the applicant be banned from promotion for the next thirty months and that his salary be cut by a twentieth (i.e. five per cent) for a period of ten months. It considered the pecuniary fine to be necessary for educational reasons, as the applicant had no realistic prospect of promotion (see paragraph 25 below). 14. In the proceedings before the Military Court, the applicant remained silent. The court, therefore, based its findings on the result of the drug test and, mainly, on statements made by the applicant’s disciplinary superior. Emphasising the difference between criminal proceedings and disciplinary proceedings, it considered that admitting these pieces of evidence did not violate the applicant’s right to a fair trial. It pointed out that, when the applicant had first confessed his drug consumption to his disciplinary superior on 20 March 2009, after the latter had informed him about his right to remain silent, the proceedings were at the stage of a disciplinary investigation by a soldier’s disciplinary superior; the Prosecutor of the armed forces had not yet opened a preliminary investigation. It considered that a soldier only had to be informed of his right to contact a lawyer once the latter proceedings were opened. Hence, the evidence obtained from the applicant’s first confession of 20 March 2009 could be admitted (see paragraph 4 above). However, the applicant’s second confession of 22 April 2009 (see paragraph 7 above) could not be admitted as evidence because the prosecutor of the armed forces had ordered the initiation of a preliminary investigation prior to that date, which was why the applicant had to be informed of his right to contact a lawyer. 15. On 28 June 2012, the Federal Administrative Court rejected the applicant’s appeal against the decision of the Northern Military Court. It found that neither the applicant’s first confession of 20 March 2009 nor his second confession of 22 April 2009, nor the statements by his disciplinary superior, respectively the superior’s deputy – to whom he had confessed on those occasions – could be admitted as evidence, because the applicant had not been informed of his right to contact a lawyer in advance. The court reasoned that such instruction, which was not required for minor disciplinary measures imposed by the disciplinary superior himself, was always required for evidence to be admitted in disciplinary court proceedings so as to ensure the fairness of the latter. 16. However, the court considered that the finding that the applicant had consumed cannabis in his spare time, in breach of his duties as a soldier, could be based on three pieces of evidence. First, the statement of a witness who had known about the applicant’s drug consumption prior to the commencement of any proceedings. Second, the drug test to which the applicant had agreed after the initial questioning by his disciplinary superior on 20 March 2009. The court noted, however, that the examining physician had indicated that the positive result could also have been caused by passive smoking of cannabis and was not in itself sufficient to prove the applicant’s cannabis consumption. Third, the statement of the Vertrauensperson about the conversation he had had with the applicant. 17. The court found that he did not have a right to refuse to give testimony. The Vertrauensperson did not belong to the persons listed in either Section 53 or Section 53a of the Code of Criminal Procedure (see paragraph 28 below) who could refuse testimony on professional grounds. It was constant case-law of the domestic courts that this provision did not extend to employee representatives or staff council members, and there was no reason to treat the Vertrauensperson more favourably than those persons. A right to refuse testimony did not follow from Section 54 of the Code of Criminal Procedure (see paragraph 28 below) either, as the pertinent internal regulations of the armed forces authorised the Vertrauensperson to testify before Military Courts. 18. The Federal Administrative Court further found that hearing the Vertrauensperson as a witness did not violate Article 136a of the Code of Criminal Procedure (see paragraph 28 below). The fact that the applicant’s disciplinary superior had advised him to contact the Vertrauensperson did not amount to “deception” within the meaning of Article 136a. When giving this advice, the disciplinary superior had not been aware of the fact that the Vertrauensperson might be heard as a witness in court proceedings against the applicant and had no intention of deceiving the applicant as to the lack of confidentiality of his statements to the Vertrauensperson. No pressure had been exerted on the applicant to confess his drug consumption to the Vertrauensperson. Referring to Section 27 of the Participation of Soldiers Act (see paragraph 27 below), the court took into account that the role of the Vertrauensperson in disciplinary proceedings was a neutral one and not comparable to a defence lawyer acting on behalf of the accused soldier. The intention behind advising the applicant to talk to the Vertrauensperson was, thus, to give him the opportunity to convince the Vertrauensperson to make a statement that was favourable to him. 19. Moreover, Section 8 of the Participation of Soldiers Act did not prevent hearing the Vertrauensperson as a witness. Noting that the provision obliged him to observe professional secrecy vis-à-vis third parties and that the German legislator, as a rule, distinguished between the obligation to observe secrecy and the right to refuse testimony, the Federal Administrative Court observed that courts were not a third party within the meaning of that provision, which, in addition, did not contain a right to refuse testimony. The term “Vertrauensperson” could not lead to a different result. This formulation reflected the fact that he was elected by the soldiers, hence he had the confidence of the majority of voters, and was entrusted with the task of representing their interests. This did not imply that soldiers accused of wrongdoing could rely, without restriction, on the Vertrauensperson to remain silent in proceedings of which he was made part. Rather, Section 27 § 2 of the Participation of Soldiers Act showed that the Vertrauensperson had an independent role in disciplinary court proceedings and his task was to provide the perspective of a fellow soldier, so as to allow for an informed exercise of discretion. The interests of the accused soldier were sufficiently protected by his right to object to the participation of the Vertrauensperson in the disciplinary court proceedings prior to their opening. Sections 8 and 27 § 2 of the Participation of Soldiers Act did not give the accused soldier the right to object, at a later stage, to the Vertrauensperson being heard with retroactive effect. 20. Furthermore, the Federal Administrative Court found that admitting the statement of the Vertrauensperson as evidence did not violate constitutional law. The applicant’s right to protection of personality rights and his right to a fair trial had not been violated because, although advised to do so by his disciplinary superior, he had freely chosen to inform the Vertrauensperson about his drug consumption. He had also been aware that he was not legally obliged to talk to the Vertrauensperson. Moreover, neither his disciplinary superior nor the Vertrauensperson had told the applicant that the Vertrauensperson would treat the information as confidential. On the contrary, the applicant had repeatedly been asked whether he objected to the Vertrauensperson being part of the disciplinary proceedings and had decided not to object. He could thus not rely on the content of his statements made to the Vertrauensperson remaining confidential. 21. The court noted that, prior to making his statement to the Vertrauensperson, the applicant had already confessed his drug consumption to his disciplinary superior and the superior’s deputy without having been instructed about his right to consult a lawyer. It acknowledged that the applicant may thus have decided to talk to the Vertrauensperson because he was under the impression that he could no longer undo his earlier selfincriminatory statements. The Vertrauensperson did not instruct him that none of his earlier confessions could be used as evidence against him (so-called “qualified instruction”). However, the conversation the applicant had had with the Vertrauensperson could not be compared to a situation of questioning an accused, for its purpose was not to further the investigation of the matter. As the Vertrauensperson was, therefore, not obliged to instruct the applicant that he could be heard as a witness in the court proceedings, he was even less obliged to provide a qualified instruction to the applicant. 22. Finally, the Federal Administrative Court found that admitting the statement of the Vertrauensperson as evidence did not violate the applicant’s right to a fair trial guaranteed by Article 6 of the Convention, noting that it could be left open whether the disciplinary proceedings at issue fell under the criminal or under the civil limb of the provision. Noting that Article 6 of the Convention did not lay down any rules on the admissibility of evidence as such, which was therefore primarily a matter for regulation under national law, the question which had to be answered was whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. Referring to, inter alia, the judgment in the case of Bykov v. Russia [GC] (no. 4378/02, § 92, 10 March 2009), it pointed out that the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures, and the use to which any material so obtained was put had to be assessed when examining whether a procedure had extinguished the very essence of the privilege against selfincrimination. The applicant had talked to the Vertrauensperson voluntarily, his confession had not been elicited through subterfuge and there were no elements of oppression or coercion. The court also noted that the applicant could raise his arguments as to why the statement of the Vertrauensperson should not be admitted as evidence before domestic courts and that he could question him in person at the appeal hearing. Emphasising that the statement of the Vertrauensperson was not the only piece of evidence used and that all three pieces of evidence used were consistent with each other, it concluded that the proceedings, taken as a whole, were not unfair. 23. On 30 July 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court. 24. On 15 October 2014 the Federal Constitutional Court declined to consider the applicant’s complaint, without giving reasons. The decision was served on the applicant on 23 October 2014. 25. Section 23 § 1 of the Act on the Legal Status of Soldiers (Gesetz über die Rechtsstellung der Soldaten) provided that a culpable breach of a soldier’s duties constituted a disciplinary offence. Pursuant to the internal regulation of the German Armed Forces (Zentrale Dienstvorschrift) 10/5, no. 404, the consumption of drugs was prohibited both on duty and off duty and was subject to disciplinary sanctions. According to the constant caselaw of the domestic courts, the consumption of drugs would normally be sanctioned by a promotion ban or, in severe cases, by a demotion (see Federal Administrative Court, 2 WD 44/09, judgment of 12 October 2010). Pursuant to Section 58 § 4 of the Disciplinary Code of the German Armed Forces (Wehrdisziplinarordnung), a salary cut may be imposed in addition to a promotion ban, if it appeared that the promotion ban did not have an impact on the soldier’s career in the armed forces. 26. Section 32 of the Disciplinary Code of the German Armed Forces provided that, where facts become known that justified the suspicion of a soldier’s breach of duty, the disciplinary superior of that soldier had to establish the facts by conducting the necessary investigations. The soldier was to be informed about the investigation as soon as possible without putting the purpose of the investigation at risk, and had to be informed at the beginning of the first questioning of which breaches of duty he was accused. At the same time, he had to be advised that he was free to remain silent. If he chose to speak, he had to give a truthful account in relation to official matters. If the instruction required was omitted or not properly given, the statement given by the soldier could not be used to his detriment. In cases warranting the opening of disciplinary court proceedings, the disciplinary superior had to refer the matter to the Prosecutor of the armed forces (Section 41). Pursuant to Section 91 § 1 of the same Code, the provisions of the Code of Criminal Procedure were to be applied to disciplinary court proceedings in addition to the provisions of the Disciplinary Code, unless the nature of the proceedings was opposed to this. 27. The status of the Vertrauensperson, including the mode of his designation, his competencies and powers, and his role within the hierarchy, were laid down in the Participation of Soldiers Act (Soldatenbeteiligungsgesetz). At the material time, that Act, which has since been amended, provided that the Vertrauensperson was elected by groups of soldiers for a period of two years. He was tasked with contributing to the good cooperation between superiors and subordinates and the consolidation of comradely trust. He closely cooperated with the disciplinary superior, both in the interests of the soldiers and those of the armed forces. The Vertrauensperson had to be informed and heard with regard to measures falling within the scope of his mandate and, in certain scenarios, had a right to make suggestions to the disciplinary superior. He had to be heard with regard to day-to-day matters of service and should be heard on a variety of matters concerning staff. Where no agreement could be reached, it was possible to refer certain matters to a more senior level within the hierarchy. The Vertrauensperson was also concerned with staff welfare and offered counselling sessions to fellow soldiers as needed. At the material time, Section 8 § 1, which has since been changed, provided that the Vertrauensperson had to observe professional secrecy vis-à-vis third parties in relation to facts and matters he learned about in the exercise of his functions. Section 27 § 2 provided, at the time, that the Vertrauensperson had to be heard about the soldier concerned and the facts at issue where the opening of court proceedings against a soldier for a disciplinary offence was intended, unless the soldier objected to such hearing. That hearing served the purpose to ensure that the soldier’s interests were taken into account prior to a decision being taken on the opening of court proceedings against him (see Federal Administrative Court, 2 WDB 1/98, decision of 31 August 1998). Section 27 § 4 stated that a transcript of that hearing had to be recorded. 28. The pertinent provisions of the Code of Criminal Procedure read, in so far as relevant, as follows: Section 53 [Right to Refuse Testimony on Professional Grounds] “(1) The following persons may also refuse to testify: 1. clergymen, concerning information that was entrusted to them or became known to them in their capacity as spiritual advisers; 2. defence counsel of the accused, concerning information that was entrusted to them or became known to them in this capacity; 3. attorneys, patent attorneys, notaries, certified public accountants, sworn auditors, tax consultants and tax representatives, doctors, dentists, psychological psychotherapists, psychotherapists specialising in the treatment of children and juveniles, pharmacists and midwives, concerning information that was entrusted to them or became known to them in this capacity. ... 3b. drugs dependency counsellors in a counselling agency recognised or set up by an authority, a body, an institution or a foundation under public law, concerning the information that was entrusted to them or became known to them in this capacity; ... Section 53a [Right of Professional Assistants to Refuse Testimony] (1) Persons assisting, and persons involved in the professional activities of those listed in Section 53 subsection (1), numbers 1 to 4, as part of their training, shall be considered equivalent to such persons. ... Section 54 [Authorisation for Judges and Officials to Testify] (1) The special provisions of the law concerning public officials shall apply to the examination of judges, officials, and other persons in the public service as witnesses concerning circumstances covered by their official obligation of secrecy, as well as to permission to testify. ... Section 136a [Prohibited Methods of Examination] (1) The accused’s freedom to make up his mind and to manifest his will shall not be impaired by ill-treatment, induced fatigue, physical interference, administration of drugs, torment, deception or hypnosis. ... (3) The prohibition under subsections (1) and (2) shall apply irrespective of the accused’s consent. Statements which were obtained in breach of this prohibition shall not be used, even if the accused consents to their use.”