CASE OF LITWIN v. GERMANY
Remainder inadmissible;No violation of Art. 6-1
Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
5. The applicant was born in 1958 and lives in Fulda. 6. On 23 February 2000 the applicant was arrested on suspicion of having committed robberies. He was detained pending trial. The trial, at which he was represented by counsel, began on 19 October 2000. At the end of the fifth day of the trial, and after evidence had been heard, the court set the next trial hearing for 17 November 2000 at 9 a.m. According to the court transcript, the trial only started at 10 a.m. on that date. 7. On 17 November 2000 between 9 a.m. and 10 a.m. negotiations took place inside the court building, the content of which are in dispute between the parties. 8. According to the applicant’s submissions, the court, having previously indicated that the potential penalty that the applicant faced could amount to fourteen years’ imprisonment, promised a maximum penalty of nineandahalf years’ imprisonment in exchange for the applicant’s waiver of his right to appeal, as well as a waiver of the applicant’s and his wife’s claims over confiscated assets and an agreement that he would not call for further evidence. 9. According to the Government, the public prosecutor did not take part in the agreement reached. The court, following a proposal made by the applicant’s counsel, promised a penalty of less than ten years’ imprisonment in exchange for the applicant’s waiver of claims over confiscated assets. 10. According to the court transcript of the hearing on 17 November 2000, which makes no mention of the agreement, further documents were then read out, the presiding judge gave legal advice as to the qualification of the alleged offences and both the applicant and his wife, who was present in the courtroom, declared that they waived any rights to the assets confiscated by the prosecution service. 11. At the end of the hearing, the Fulda Regional Court convicted the applicant of aggravated extortion, aggravated robbery and attempted aggravated robbery (two counts of each offence) and dangerous bodily injury (one count) and sentenced him to nine-and-a-half years’ imprisonment. The court, stating that the applicant had not entered a plea, based its findings on DNA expert evidence pointing to a high probability that the applicant had been the person that had caused marks found at the crime scenes and on further circumstantial evidence derived, in particular, from witness testimony. The court considered the fact that the applicant had eventually waived his right to the confiscated assets and had thus delivered a major proportion of his criminal profits as a mitigating factor. 12. After delivery of the judgment, the court verbally informed the applicant of his right to lodge an appeal on points of law. In the applicant’s presence, counsel for both the defence and the prosecution waived their rights to appeal. 13. The applicant subsequently appointed new counsel. On 12 April 2001 the applicant’s new counsel applied for restitution of the status quo ante and lodged an appeal on points of law, arguing that the waiver of the right to appeal had been invalid because it had not complied with the requirements of the Federal Court of Justice’s case-law. As the applicant had not been aware of the invalidity of his waiver, he could not be held responsible for having failed to comply with the statutory time-limit of one week for lodging an appeal on points of law. In a written statement attached to the application, the applicant submitted that his previous counsel had informed him that he would have to expect the imposition of a prison sentence of at least fourteen years if he did not accept the court’s proposal and that he was only informed about the invalidity of the waiver during a first conversation with his new counsel which took place on 10 April 2001. 14. In pleadings dated 10 May 2001 counsel specified the grounds of appeal on points of law. He complained that the negotiated agreement had not been recorded in the court transcript, as required by the case-law of the Fourth Chamber of the Federal Court of Justice (see paragraph 19 below). In his view, this constituted a breach of the principle of a public hearing. He also argued that the actual waiver of the right to appeal had been declared before delivery of the judgment – namely when negotiating the agreement – and had been invalid for this reason as well. 15. On 11 June 2001 the Second Chamber of the Federal Court of Justice (file no. 2 StR 223/01) dismissed the applicant’s request for restitution of the status quo ante and rejected his appeal on points of law as inadmissible. Relying on its own settled case-law, the court observed that a waiver of the right to appeal could not be revoked, rescinded or withdrawn. The Court of Justice did not find it necessary to establish whether the waiver had been part of a negotiated agreement, as this fact did not call into question the validity of the waiver as such. The waiver had to be measured by different standards: notably, whether the accused had retained the freedom to either accept a judgment against him or lodge an appeal had to be verified. This freedom had to be preserved, even if the judgment had been based on an objectionable agreement and the waiver had constituted honouring such an agreement. Notwithstanding any procedural defect in the alleged agreement, the accused may have pursued his interests in an autonomous and appropriate way. The only decisive factor was whether the accused had been unduly influenced when waiving his right to appeal. In the present case, there was no indication that there had been such undue influence. The applicant’s submissions neither disclosed an error or misunderstanding on the applicant’s part, nor any deceit or false information given by the court, nor any impairment of the interests of the defence. 16. The court further considered that, as a result of the valid waiver of the right to appeal, the Fulda Regional Court’s judgment had become legally binding on 17 November 2000 and that the appeal on points of law thus had to be rejected as inadmissible. It followed that the applicant could not be granted restitution of the status quo ante. If a person had knowingly waived a right to appeal, he had not been “prevented from observing a time-limit” within the meaning of Article 44 § 1 of the Code of Criminal Procedure. The decision was served on the applicant’s counsel on 5 July 2001. 17. On 3 August 2001 the applicant lodged a constitutional complaint, claiming that he had been unduly influenced when waiving his right to appeal in exchange for a maximum penalty of nine-and-a-half years’ imprisonment. Furthermore, the Federal Court of Justice had failed to consider the fact that his wife, who had not been involved in the trial, had also been asked to waive any rights she had to the confiscated assets. This procedural method had been arbitrary, had not been in accordance with the statutory provisions governing the confiscation of assets in criminal proceedings and had also constituted a violation of the right to an effective remedy. On 20 November 2003 the Federal Constitutional Court (file no. 2 BvR 1339/01), relying on the relevant provisions of its rules of procedure, refused to admit the constitutional complaint for examination without giving further reasons. This decision was served on the applicant’s counsel on 4 December 2003. 18. Relevant provisions: “If a person was prevented from observing a time-limit through no fault of his own, he shall be granted restitution of the status quo ante upon application. ...” “(1) The application for restitution of the status quo ante shall be filed with the court where the time-limit should have been observed within one week after the reason for non-compliance no longer applies. To observe the time-limit, it shall be sufficient for the application to be filed in time with the court which is to decide on the application. ...” “(1) In suitable cases the court may, in accordance with the following subsections, come to an agreement with the other parties to the proceedings regarding the further progress and outcome of the proceedings. ... (2) The subject matter of such an agreement may only comprise the legal consequences which could form part of the judgment and of the associated rulings, other procedural measures related to the proceedings, and the conduct of the parties. The verdict and measures of correction and prevention may not be the subject of an agreement. (3) The court shall announce what content the agreement might have. In this context, it may ... also indicate an upper and lower limit of the sentence. ...” “(1) Withdrawal of an appeal, as well as waiver of the right to lodge an appeal, may also take effect before expiry of the time-limit for filing. ... (2) Defence counsel shall require express authorisation for such withdrawal.” “(1) Withdrawal of an appeal, as well as waiver of the right to lodge an appeal, may also take effect before expiry of the time-limit for filing. If a negotiated agreement (Section 257c) has preceded the judgment, a waiver shall be excluded. ... (2) Defence counsel shall require express authorisation for such withdrawal.” 19. There has always been agreement between the Chambers of the Federal Court of Justice that agreements with a view to terminating criminal proceedings are not per se inadmissible. It has also been accepted that a waiver of the right to appeal should not be negotiated in the context of such an agreement and that such a waiver is not legally binding on the defendant. However, the Chambers have differed on the question of the consequences of such a waiver if a defendant has nevertheless promised to grant the waiver and has made a declaration that he or she will do so to the trial court. The First and Second Chambers have held that a waiver of the right to appeal is not invalid simply because it formed – though inadmissibly – part of an agreement between the court, the prosecution and the defence. Rather, it has only been considered to be invalid if the procedural defect led to undue influence at the time the waiver was declared. The Third, Fourth and, since 2003, Fifth Chambers have found a waiver of the right to appeal, which has been the subject of an agreement with a view to terminating criminal proceedings, to always be invalid. They have held that a promise not to lodge an appeal, made before delivery of a judgment, albeit not legally binding, always constitutes undue influence on the accused. 20. In a leading decision of 3 March 2005, the Grand Chamber of the Federal Court of Justice laid down the principles governing the validity of a waiver of the right to appeal in the context of agreements entered into with a view to terminating criminal proceedings (file no. GSSt 1/04). It considered such agreements, in which the criminal courts make a binding declaration on the maximum penalty to be imposed in exchange for the defendant’s confessing to (part of) the offences he has been charged with, to be compatible with the Code of Criminal Procedure and the Basic Law if certain conditions are met. 21. In particular, all participants in the proceedings (that is, professional and lay judges, the prosecution, the defence counsel and the defendant) must be involved in reaching the agreement, the result of which must be made public at a hearing and must be duly noted in the court transcript. The veracity of any confession made by the defendant in accordance with the agreement must be verified. The agreement is not allowed to concern the legal qualification of the acts the defendant has been charged with. The penalty proposed by the court still must reflect the defendant’s guilt and the penalty which, according to the court, could be expected without a confession may not be disproportionately severe in order to subject the defendant to undue pressure to confess. The court is only allowed to agree a maximum penalty (as opposed to a specific penalty) and may only exceed that penalty if relevant factual or legal issues have been overlooked and if it has previously advised the defendant at a hearing of its intention to set a higher penalty. The Federal Court of Justice noted that in view of their heavy workload, the courts would be unable to render criminal justice and to avoid delays in proceedings without being allowed to have recourse to such agreements. 22. The Federal Court of Justice further observed that in the past, such agreements had in practice often involved the defendant’s promise to waive his right to appeal against the judgment, or at least the court’s suggestion to do so. However, the criminal courts were not authorised, in the context of these agreements, to arrange for a waiver of the right to appeal. An agreement aimed at terminating the proceedings was not to prevent the effective review, by the appeal courts, of the lower courts’ judgments. After the delivery of a judgment which was given following an agreement – irrespective of whether a waiver of the right to appeal had been included or discussed – the court therefore had to inform the defendant not only of his right to appeal, but also of the fact that he was free to lodge an appeal irrespective of the agreement reached (what is termed a qualified instruction). If such a qualified instruction had not been given, the defendant’s waiver of his right to appeal was void. 23. These guidelines of the Federal Court of Justice have meanwhile been incorporated in Sections 257c and 302 of the Code of Criminal Procedure (see paragraph 18 above).