KRIEGISCH v. GERMANY
Inadmissible
Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Klaus-Peter Kriegisch, is a German national who was born in 1967 and lives in Heilbronn. He is represented before the Court by Ms Sylvia Schwaben, a lawyer practising in Pfinztal. The respondent Government were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was arrested on 9 December 2003 on suspicion of having bought cocaine from H. and of having subsequently sold it to unknown consumers. H. had previously acquired the drugs in the Netherlands where he had travelled for this purpose in the company of B. and S. In the course of preliminary investigations against the drug supplier H., B. and S., who had both been involved only in the importing of the drugs by H. but not in the subsequent sale to the applicant, were questioned by police officer P. and gave, inter alia, hearsay evidence about statements made by H. and other circumstances indicating that H. had subsequently sold part of the imported drugs to the applicant. On 14 May 2004 a chamber of Mosbach Regional Court (Landgericht), with judge G. presiding, convicted H. of drug trafficking, sentenced him to eleven years’ imprisonment and ordered him to undergo treatment in a detoxification centre. The judgment was primarily based on a full confession made by H. following an unrecorded plea bargain reached with the court providing for mitigation of H.’s expected prison sentence in return for a confession. The veracity of the confession was confirmed by the testimony given by police officer P. regarding the statements made by B. and S. during previous police questionings. The judgment enumerates the several clients to which H. had sold drugs on various occasions and among them mentions a person called “Jürgen Kriegisch”, to whom he had sold cocaine on three occasions. The related passages of the judgment establishing the facts of the case which refer to the said person read as follows: “... he [H.]... brought the narcotics to Wertheim and sold them there as follows: - to Jürgen Kriegisch at least 150 grams of cocaine at a price of 40 euros per gram; - to ...; ... ... he [H.]... brought the narcotics to Wertheim and sold them there as follows: - to Jürgen Kriegisch at the day of its acquisition at least 750 grams but at most 1,125 kilograms of cocaine at a price of at least 30 and at most 40 euros per gram; - to ...; ... He [H.] brought the narcotics to Wertheim. From the quantity he had purchased in this manner, he sold a gross amount of 1.5 kilograms of cocaine directly following his return to Jürgen Kriegisch, who is being prosecuted separately, at a price of at least 30 and at most 40 euros per gram and to ...” On 6 May 2004 the main hearing in three cases against the applicant on charges of drug trafficking was opened before a chamber of Mosbach Regional Court presided over by the same judge, G., who had previously presided over the trial against H. The applicant was represented by counsel throughout the proceedings. On 22 July 2004 the Regional Court heard evidence from, inter alia, police officer P., regarding the statements made by S. and B. when questioned earlier by the police. H. refused to give evidence regarding the case as such and, on a request by the applicant to testify, stated that all he could do for the applicant was to remain silent. During a break the presiding judge made an offer to the applicant that if he confessed, any prison sentence imposed on him would not exceed six years; otherwise the hearing would be adjourned and should the charges brought against the applicant prove true in the course of the resumed proceedings, a term of imprisonment of twelve years was to be discussed. The applicant refused the offer, which was not recorded. Evidence was also heard from B. and S. as hearsay witnesses. B. refrained from making statements about the case as such. S. gave hearsay testimony on statements made by H. in relation to the sale of the drugs to the applicant following their importation but stated that he could not give any information regarding the sale of the drugs by H. to the applicant as such. By a decision of 2 September 2004 the Regional Court, sitting as a panel of three judges including G., ordered the continuation of the applicant’s detention pending trial on the ground that the outcome of the main hearing had confirmed the suspicion of drug trafficking against the applicant. The court based its decision essentially on the information given by police officer P., the hearsay testimony given by S., and on H.’s refusal to testify. At the opening of the resumed hearing on 21 October 2004 the applicant objected to the participation of the presiding judge, G., on the ground of possible bias. He argued, in particular, that G. had already presided in the previous trial against H. and had obtained a confession from the latter after having indicated that if H. confessed he would not impose preventive detention (Sicherungsverwahrung) on him. Pursuant to German law, a ruling on preventive detention constituted a legal consequence that was not subject to the discretion of the judge, and any such plea bargain was therefore unlawful. Furthermore, the assessment of the evidence given by the witnesses during the hearing of 22 July 2004 and the interpretation of H.’s refusal to testify as reflected in the court’s decision to continue the applicant’s detention had been partial. Finally, the applicant maintained that the offer to terminate the trial made by the presiding judge at the hearing of 22 July 2004 showed that the judge had sought to exert undue pressure on the applicant with a view to expediting the proceedings and avoiding a proper investigation of the case. The applicant’s objection against presiding judge G. was dismissed by the substitute chamber (Vertreterkammer) of Mosbach Regional Court the same day. As regards the court’s order continuing the applicant’s detention pending trial, the court found that it was based on the outcome of the discontinued hearing of 22 July 2004 and did not anticipate the judges’ assessment following examination of the case in the course of the proceedings. As regards the offer to terminate the proceedings, the substitute chamber found that an accused person would reasonably presume that such an offer by the presiding judge could only mean that in the event of a confession the accused would not face a sentence longer than six years and that otherwise he could be acquitted or face a sentence of up to twelve years, depending on the outcome of the trial. Under no circumstances could the offer be interpreted to imply that in respect of the same facts and circumstances the applicant would be liable to six or twelve years’ imprisonment depending on whether or not he made a confession. At subsequent hearings, on 25 and 29 October and on 4 and 8 November 2004, the Court again heard H., S., B. and police officer P. The court also heard E., who had been a non-presiding judge (beisitzender Richter) during the previous hearing of 22 July 2004 and whose testimony gave an account of the statements made by H. and S. at that hearing. S. again stated that he could not give any information regarding the sale of the drugs by H. to the applicant as such, and withdrew any statements previously made to police officer P. during the police interview, indicating that H. had mentioned the applicant as purchaser of the drugs. H. himself denied having been involved in drug trafficking with the applicant. The court heard a number of further witnesses called by the applicant in his defence, but refused the applicant’s request for expert opinions, with a view to verifying the credibility of B.’s testimony. The applicant refrained from making statements regarding the case as such throughout the proceedings. On 8 November 2004 Mosbach Regional Court convicted the applicant of drug trafficking in one case and acquitted him in the other two cases. He was sentenced to nine years’ imprisonment. The Regional Court based its judgment mainly on the testimony given by B., police officer P. and judge E. The court pointed out that B. had only been a hearsay witness but had also testified as to her own perception of the events. The court stated that it was aware that the credibility of B.’s statements required particular scrutiny, and gave reasons as to why the content and circumstances of her testimony before the court had confirmed its credibility. The Regional Court further reasoned that its finding was supported by H.’s refusal to testify in order to protect the applicant and the evidence given by S. during his interview with police officer P. The court further pointed out that H.’s confession during his own trial had not been taken into consideration in the trial against the applicant. On 2 February 2005 the applicant lodged an appeal on points of law with the Federal Court of Justice (Bundesgerichtshof) arguing that the presiding judge had been biased and should have been excluded from the trial. He further complained, inter alia, that the admission of evidence and the assessment of the witnesses’ statements by the court had been arbitrary. On 1 June 2005 the Federal Court of Justice rejected the appeal as unfounded, following a statement of the Federal Public Prosecutor (Generalbundesanwalt). On 6 July 2005 the applicant lodged a constitutional complaint alleging that the decisions of the Regional Court and the Federal Court of Justice infringed his right under Article 101 § 1, second sentence, of the German Basic Law (Grundgesetz), which provided that no one should be deprived of his right to a decision rendered by the court established by law (gesetzlicher Richter), on the ground that the presiding judge had been biased and the refusal to exclude him from the trial had been arbitrary. The conduct of the proceedings against H. and the plea bargain offered to the applicant at the beginning of his trial showed that the presiding judge had been convinced of the applicant’s guilt from the beginning of the proceedings. He further complained that H.’s confession had been obtained in violation of Article 136a § 1 of the Code of Criminal Procedure and should therefore not have been admissible as evidence in his own trial. By a decision of 16 November 2005 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint on the ground that it was unfounded. It held that the dismissal of the applicant’s objection to the presiding judge by the relevant courts had not been based on arbitrary considerations and did not therefore constitute a violation of the applicant’s right under Article 101 § 1, second sentence, of the German Basic Law. As regards the participation of the presiding judge in the proceedings against H., the Federal Constitutional Court pointed out that the lower courts could rely on the principle that the participation of a judge in separate proceedings did not generally give rise to bias on that judge’s part. The Federal Constitutional Court specified that even though the considerable difference in the length of the prison sentences mentioned by the presiding judge in his offer to the applicant might give cause for concern, the alternatives given were only meant to indicate the scope within which a possible sentence was “to be discussed” and not to give binding alternatives regarding the length of a possible prison sentence depending on whether the applicant confessed or not. An indication by the presiding judge that a confession might entail a substantial mitigation of sentence and an offer of an upper limit on the prison sentence did not in itself constitute an attempt by the presiding judge to unduly influence the applicant. The fact that the offer was made by the presiding judge at a time when important witnesses had not yet made a statement during the main hearing, but only during police interviews, did not establish bias on his part either, particularly as the Regional Court had already heard the police officer who had previously interviewed those witnesses. The Federal Constitutional Court further held that the presiding judge’s attempt to reach a plea bargain with the applicant with a view to terminating the proceedings did not amount to a violation of his basic rights, since in any event it had been to no avail and the judgment of the Regional Court had thus not been based on it. The same applied to the alleged violation of the provisions of the Code of Criminal Procedure in connection with the confession obtained from H., since the Regional Court did not base its judgment in the proceedings against the applicant on H.’s previous confession. The relevant provisions of the Code of Criminal Procedure read as follows: Article 24 § 2 “An objection can be raised on the ground of fear of bias if there is a reason which may justify doubts regarding the impartiality of a judge.” Article 136a “(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, torture, deception or hypnosis. Coercion may be used only as far as this is permitted by the statutory criminal procedure. Threatening the accused with measures not permitted under its provisions or holding out the prospect of an advantage not envisaged by statute shall be prohibited. ...” Article 333 “An appeal on points of law may be lodged against judgments of the penal chambers...” Article 338 “A judgment shall always be considered to be based on a violation of the law ...3. if a professional judge or lay judge has participated in the drafting of a judgment after being challenged for bias and if the application to challenge was either declared to be well-founded or erroneously rejected...”. Article 101 § 1, second sentence, of the German Basic Law (Grundgesetz) provides that no one shall be deprived of his right to a decision rendered by the court established by law (gesetzlicher Richter). In its case-law, the Federal Constitutional Court has consistently dealt with the issue of whether a judge should be excluded for suspicion of bias as a problem of the right to a decision rendered by the legally competent judge.