LIEBREICH v. GERMANY
Inadmissible
Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
The applicant, Mr Harry Liebreich, is a German national who was born in 1967 and lives in Berlin. He was represented before the Court, as already in the proceedings before the domestic courts, by Mr T. Mengede, a lawyer practising in Berlin. 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. On 20 September 2001 the Tiergarten District Court opened the trial against the applicant on charges of insurance fraud. In the course of the second trial hearing on 27 September 2001, the applicant presented a medical certificate dated 25 September 2001 issued by H., a licensed doctor (Diplom Mediziner) for psychiatry. According to that certificate, the applicant was suffering from a depression and was therefore presently unfit to plead (verhandlungsunfähig). After the applicant had declared that he had been able to follow the hearing until then, the latter was ended on his request. On the third day of the hearing, the applicant declared to be fit to plead. On 30 October 2001 the Tiergarten District Court, having held seven hearings, convicted the applicant of 26 counts of insurance fraud and sentenced him to three years’ imprisonment. It found that the applicant, who ran a garage, had simulated accidents with the help of others in order to obtain the payment of insurance benefits. In fixing the applicant’s sentence, the court took into account as an aggravating factor that the applicant had acted on a commercial basis. It considered in mitigation that it could not be excluded that the applicant, who had confessed to the offences, had needed a large amount of money in order to satisfy claims for protection money (Schutzgeld) extorted from him by unknown third persons. The applicant appealed against the District Court’s judgment. He contested in particular that he had committed the frauds on a commercial basis as he had used the money obtained thereby to pay the blackmailers. He further argued that the sentence was too severe as he had acted with diminished criminal responsibility. Following the constant threats uttered by the blackmailers he suffered from serious anxiety and depression which necessitated continuous neurological and psychiatric treatment. The hearing before the Berlin Regional Court took place on 25 June 2002. In the applicant’s submission, his counsel informed the court orally prior to the formal opening of the hearing in the presence of the Public Prosecutor’s Office and his co-defendants’ defence counsels that the applicant was unfit to plead. His counsel submitted two medical certificates dated 13 May 2002 issued by doctor H., the neurologist and psychiatrist in charge of the applicant’s treatment for the past years. According to these certificates, the applicant, who was under constant psychiatric treatment, was unfit for work from 25 September 2001 presumably until 5 August 2002 and also unfit to plead. His lawyer further presented a medical certificate dated 13 November 2001 issued by doctor H. in which the doctor stated that the applicant suffered from a serious anxiety and depression syndrome, might suffer from a personality disorder and was being treated with anti-depressants. The doctor recommended carrying out a psychiatric examination in the course of the appeal proceedings in order to assess the applicant’s criminal responsibility. The applicant’s lawyer further informed the Regional Court that the applicant was presently under the influence of strong anti-depressants which he was obliged to take in order to treat his illness. The court inspected the certificates and handed them back to his counsel as it did not wish to take them to the files at that moment. The hearing was then opened and the applicant and his co-defendants made submissions on their personal situation. Excerpts of the District Court’s judgment were read out. Having been advised of his right to remain silent, the applicant declared that he was ready to make submissions on the charges against him. In the applicant’s submission, his counsel reminded the court at that moment that the question of the applicant’s fitness to plead had to be addressed. The Regional Court interrupted the hearing for one hour in order to award the defendants and their counsels the opportunity to consider limiting the appeals to the fixing of the sentence. When the hearing was resumed, the applicant, having consulted his counsel, declared that he restricted his appeal to the fixing of his sentence. The applicant then handed over to the court the two medical certificates dated 13 May 2002 (see above) issued by doctor H. according to which he was unfit to plead. According to the minutes of the hearing as rectified by the court, the applicant, having consulted his counsel, declared on the court’s enquiry that he considered himself to be fit to plead and was ready to participate in the hearing. Thereupon, the presiding judge interrupted the hearing for approximately fifteen minutes. According to the minutes of the hearing, the applicant, following this break, declared again on the court’s enquiry that he felt fit to make and to receive procedural statements. According to the minutes of the hearing, the presiding judge subsequently informed the parties that she had phoned doctor H. during the break. The latter had confirmed that the applicant had been prescribed antidepressants. In view of the (average) dosage of the medication, the applicant was fit to make and to receive procedural statements also when he had taken the antidepressants. In the applicant’s submission, the presiding judge informed him of the telephone conversation with his doctor prior to questioning him for the first time on his fitness to plead. The parties were given the opportunity to comment on this issue. The Regional Court considered the applicant as being fit to stand trial and proceeded with the hearing. The applicant then made submissions on the charges. He stated, in particular, that he had become depressive due to his offences, as a result of which he had lost his means of subsistence. At the conclusion of the hearing, the Regional Court sentenced the applicant to two years and nine months’ imprisonment. It found that in the applicant’s submission, which had not been disproved, he had been blackmailed since 1997 by unknown third persons who had damaged cars parked in his garage and had threatened him and his family. As the police had not agreed to afford him protection immediately, he had committed the insurance frauds on a commercial basis in order to be able to pay the protection money extorted by these persons. In fixing the sentence, the court further took into account that the applicant had shown in the hearing that he truly regretted his offences presumably committed because of the said blackmail. It also considered in mitigation that there was a link between his feeble health caused by a slight depression and the criminal proceedings against him. The court found the high damage caused (some 250,000 Deutschmarks), the number of frauds committed by the applicant and the fact that he had instigated several persons to participate in them to be aggravating circumstances. Right after the hearing the applicant went to see doctor H. Having examined him, the latter certified that the applicant was in a confused, very depressed and desperate state of mind and that his submission that he had not been able to follow the court hearing was credible. Doctor H. stated that the information he had given on the phone to the Berlin Regional Court that morning, at a moment when he had been treating other patients, needed to be clarified. From a retrospective point of view it was very likely that the applicant had been unfit to plead for health reasons throughout the hearing before the Berlin Regional Court on that day. On 2 July 2002 the applicant lodged an appeal on points of law. He argued that the conduct of the hearing before the Regional Court despite his unfitness to plead or without having his capacity to plead properly examined by a doctor entailed a serious violation of his right to be present, to be heard and effectively to defend himself as protected by section 230 § 1 of the Code of Criminal Procedure (see ‘Relevant domestic law and practice’ below). In his submissions in reply dated 13 December 2002 the Berlin Public Prosecutor General stated that, having regard to the course of the hearing before the Regional Court as laid down in the minutes of the hearing, that court had no reason to doubt the applicant’s fitness to plead and was thus not obliged to consult a medical expert. On 21 January 2003 (decision served on 27 January 2003) the Berlin Court of Appeal, without giving reasons, dismissed the applicant’s appeal on points of law as manifestly ill-founded. On 25 February 2003 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He submitted that his right to be heard as guaranteed by Article 103 § 1 of the Basic Law had been violated because the Regional Court had held its hearing in the criminal proceedings against him although it had been or should have been aware that he had been unfit to plead. On 18 March 2003 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. If an appeal (Berufung) is lodged against a District Court judgment, the defendant’s case will be reheard by the Regional Court on all questions of fact and law unless the appeal has been restricted by the appellant to certain points of complaint (see section 318 of the Code of Criminal Procedure). According to the settled case-law of the Federal Court of Justice, the mere physical presence of the defendant is not sufficient for him to be considered to “attend” the hearing; he also has to be fit to plead (Federal Court of Justice, no. 5 StR 199/70, decision of 6 October 1970, Collection of the decisions of the criminal section of the Federal Court of Justice (BGHSt), Vol. 23, pp. 331 et seq., 334). A defendant is fit to plead if he is capable of protecting his interests reasonably in and outside the hearing, of conducting his defence in a proper and understandable manner and of making and receiving procedural statements. In particular, a defendant is not considered unfit to plead if, because of the advice and support of his counsel, he is sufficiently able to exercise his defence rights of his own will, either in person or represented by his counsel (see, inter alia, Federal Constitutional Court, no. 2 BvR 345/95, decision of 24 February 1995, NJW 1995, pp. 1951, 1952). If the court has doubts about the defendant’s capacity to plead, as a rule no hearing may be conducted in the criminal proceedings against him (Federal Court of Justice, no. 4 StR 681/83, decision of 29 November 1983, Neue Zeitschrift für Strafrecht (NStZ) 1984, p. 181; Federal Court of Justice, no. 5 StR 449/84, decision of 17 July 1984, NStZ 1984, p. 520). The trial court is called to take evidence in order to verify the applicant’s fitness to plead in accordance with its duty to investigate all facts relevant to its decision (compare section 244 § 2 of the Code of Criminal Procedure).