SPAHIU v. GERMANY
Inadmissible
Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Afrim Spahiu, was born in 1966 in Terstenik, Kosovo, and lives in Arnsberg. He is represented before the Court by Mr M. Reuther, a lawyer practising in Arnsberg. The respondent Government are represented by Mrs A. Wittling-Vogel, Ministerialdirigentin, Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 1 October 1998 the Dortmund Regional Court opened a trial against the applicant and others, as members of a joint criminal enterprise, on charges of having induced a number of people to lodge falsified asylum applications in twenty-nine cases. After a dispute as to jurisdiction between the Regional Court and the Court of Appeal, on 17 March 1999 the Federal Court of Justice ordered the Dortmund Regional Court to carry on with the proceedings. On 20 November 2000 the Dortmund Regional Court, the Grand Criminal Division (Große Strafkammer) sitting as a Jury Court (Schwurgericht) and presided over by Judge F., who had been appointed to the Dortmund Regional Court a year earlier, convicted S.-S. and R, two German co-accused of the applicant, of having helped people in ten cases to lodge falsified asylum applications, S.-S. as a member of a joint criminal enterprise comprising, notably, the applicant. The proceedings against the co-accused had been severed after they had confessed to the offences. The applicant, who had been summoned as a witness in these proceedings, had refused to give evidence. The judgment contained references to the applicant’s role in the offences. The main passages in this respect read as follows: “Spahiu had the idea of helping asylum seekers, against payment of a considerable fee, to increase their prospects of success by submitting false statements. ... Spahiu had told the accused, S.-S., about a secret organisation called ‘the Anti-Serbian Movement’ (‘the ASM’), founded in Kosovo, but also active in Germany and other European countries. According to Spahiu, he was a high-ranking member of this organisation. ... The accused, S.-S., did not doubt the truth of Spahiu’s story and assumed that the ASM actually existed ... The chamber did not investigate whether the ASM really existed or whether it was just a sham organisation. According to Spahiu, the prospects of success of an application for asylum could be increased if the applicant referred to his or her membership of the ASM, as well as to the holding of senior office within it. ... According to Spahiu’s plan, membership certificates, as well as documentation regarding the holding of senior office, should be submitted in the asylum proceedings by the accused, R., on stationery seemingly from the ASM and signed by him [Spahiu], H., who is also being prosecuted, and the accused, S.-S. ... According to Spahiu’s plan, the applicants would pay fees of up to 20,000 German marks for such assistance in the asylum proceedings. ... First of all, a counselling interview was arranged with each applicant. During this interview, in which Spahiu and S., and, in some cases, the accused, S.-S., took part, the applicant seeking help was informed about the requirements of a successful application for asylum. ... In all the cases which are the subject of the verdict, Spahiu, S. and the accused, S.-S., invented posts in senior positions within the ASM which were allegedly held by the asylum seekers. In order to prove the alleged position of the applicants to the administrative authority or the administrative court Spahiu, using a computer, developed a standard form. ... This statement was then stamped ‘Anti-Serbian Movement’. This stamp had been designed by Spahiu, who had also had it made. The statements were usually signed by Spahiu. ... Furthermore, Spahiu created another statement [donation receipt]. ... This statement was signed either by the accused, S.-S., as secretary general or, once S. S. no longer held this position, by Afrim Spahiu as secretary general and by H., who is also being prosecuted ... In 1996, at the request of Afrim Spahiu, the accused, R, agreed to handle the applications of the members of the ASM. ... When further enquiries needed to be made, the accused, R., contacted Spahiu and S. rather than the asylum seekers.” In the subsequent summaries of the different cases of falsified asylum applications the applicant was generally referred to as “the separately prosecuted” (der gesondert Verfolgte). Regarding the criminal liability of the accused S.-S. the Regional Court found that she had acted as a member of a joint criminal enterprise and had conspired with the separately prosecuted Afrim Spahiu and M.S. to commit such crimes in the future. Regarding the sentence of S.-S. the trial court took into consideration, inter alia, that together with the other members of the joint criminal enterprise she had “taken advantage of the vulnerable situation of the asylum seekers”. The judgment did not include an assessment of evidence because it had become final and could therefore be abridged by virtue of Article 267 § 4 of the Criminal Code of Procedure (see “B. Relevant domestic law” below). From the circumstances, which were found to be decisive in assessing the penalty, it follows, however, that both co-accused had confessed to the offences with which they had been charged. On 22 March 2001 the trial against the applicant continued before a Grand Criminal Division sitting as a Jury Court and Judge F. presiding. Throughout the proceedings, the applicant lodged numerous applications for the removal of F. and other judges of the Dortmund Regional Court from sitting in the case on grounds of bias: between May and October 2000 he submitted thirteen such applications. Inter alia, on 22 January 2001 he alleged that F. had already determined the extent of the applicant’s involvement in the offence (Vorwegentscheidung) with the judgment against the co-accused so as to be able to convict him more easily. The Criminal Division, including F., dismissed the application on 25 January 2001 as inadmissible, finding that it contained no evidence of bias. In his application dated 17 May 2001 the applicant challenged Judge F., inter alia, because he had participated in the proceedings against the two co-accused. On 21 May 2001 this application was dismissed as having been lodged late (verspätet). On 17 January 2002 the Regional Court convicted the applicant of participating in a joint criminal enterprise to induce asylum seekers to lodge falsified asylum applications in thirteen cases and sentenced him to five years’ imprisonment. Six of these cases had also led to the conviction of the co-accused. The applicant’s conviction was based, in particular, on the testimony of the former co-accused S.-S., the witness statements of the individual asylum seekers and relevant documents. The applicant had exercised his right not to testify. The judgment comprised 99 pages and contained a detailed assessment of the evidence before the court, in particular also regarding the credibility of S.-S’s statements. As regards the description of the circumstances of the offence, the statement of facts contained similar and partly identical wording to the statement of facts in the judgment against the co-accused. The applicant lodged an appeal on points of law with the Federal Court of Justice in which he submitted, inter alia, that F. should have been excluded from sitting in the case by operation of law, namely by application of Article 23 of the Code of Criminal Procedure (see “B. Relevant domestic law” below) mutatis mutandis, since he had sat on the bench trying the case against the co-accused. In its reply the Federal Prosecutor General’s office pointed out that Article 23 of the Code of Criminal Procedure could not be applied mutatis mutandis in this situation. On 3 April 2003 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill founded. In the constitutional complaint dated 16 July 2003 the applicant’s lawyer gave an account of the preliminary investigation proceedings and the trial against his client. Regarding the merits he firstly maintained that the criminal provisions the conviction was based on were unconstitutional. He further alleged that F. had been appointed to the Dortmund Regional Court specifically for the trial against the applicant. Also, after having presided over the trial of the co-accused F. should have been excluded from the applicant’s trial by operation of law. It was further submitted that F. had lacked the necessary impartiality. At the trial against the co-accused, which was linked to the applicant’s trial, F. had determined the extent of the applicant’s participation in the offences. Because the two proceedings dealt with the same offences and the same offenders the applicant alleged that F. could not view him with the necessary neutrality, objectivity and distance. He finally submitted that “a realistic examination of the procedural provisions concerning exclusion of judges ipso jure, taking into consideration the values of the Basic Law and established knowledge in the area of psychology, leads to the conclusion that it is no longer appropriate that the Criminal Code of Procedure assumes that an issue of bias will not generally arise if a trial judge has previously participated in a decision related to the proceedings at hand.” The applicant submitted that F.’s bias was evidenced in particular by the dismissal of all of his applications for the removal of judges from sitting in the case as inadmissible. On 24 October 2003 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint. It held that the applicant had not sufficiently substantiated the complaint that F. should have been legally barred from adjudicating on his case because he had been involved in criminal proceedings directly related to it. By claiming that F. had participated in the proceedings against him contrary to Article 23 § 2 of the Code of Criminal Procedure (see “B. Relevant domestic law” below) he had simply reiterated the submissions he had made before the Federal Court of Justice. The Federal Constitutional Court further reasoned: “... the applicant failed to demonstrate that the decision not to consider the presiding judge to be legally barred from sitting in his case – thus applying a narrow interpretation of Article 23 of the Code of Criminal Procedure – had been arbitrary, i.e. based on an interpretation and application of Article 23 of the Code of Criminal Procedure which was not legally arguable under any aspect of the provision.” On 24 November 2004 the second set of proceedings (opened in April 2002 before the Regional Court) against the applicant for having induced a number of people to lodge falsified asylum applications in thirteen more cases were provisionally stayed in accordance with Article 154 of the Code of Criminal Procedure (see “B. Relevant domestic law” below) in view of the prior conviction of the applicant. From 12 November 1997 to 26 April 1999, when the arrest warrant was quashed and the applicant released, the applicant was placed in pre-trial detention for the first time on suspicion of having committed the asylum related offences with which he had been charged in the first set of proceedings. On 4 February 2000 the Federal Constitutional Court found that the applicant’s prolonged detention, as ordered by the Federal Court of Justice on 17 February 1999, had violated his right to liberty. On 19 April 2001 the Regional Court, having consulted three doctors, ordered the applicant’s second arrest and detention, finding that he had intentionally rendered himself unfit to plead by taking an overdose of analgesics. On 18 October 2001 the Hamm Court of Appeal quashed the arrest warrant and the applicant was released. The Hamm Court of Appeal found that the applicant’s right to liberty, having regard to the overall length of his detention, now prevailed over the State’s interest in securing the proper continuation of the proceedings. On 13 December 2001 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant. On 14 January 2002 – by which date the applicant had still not appeared for trial – the Regional Court ordered the applicant’s arrest on the ground that he might attempt to flee and confirmed this arrest warrant when delivering a judgment on 17 January 2002. On 21 March 2002 the Court of Appeal quashed the arrest warrant. On 15 January 2002 the Dortmund District Court issued an arrest warrant in respect of the other offences with which the applicant had been charged in the second set of proceedings. It argued that he was likely to flee if released owing to the considerable sentence he risked being given if convicted and considering that he had already tried to evade trial by deliberately rendering himself unfit to plead and by fleeing to Albania. On 16 March 2002 the applicant was arrested when re-entering Germany and detained for a third time. On 18 April 2002, endorsing the reasons given by the District Court, the Court of Appeal upheld the arrest warrant of 15 January 2002. On 2 May and 12 June 2002 the Federal Constitutional Court declined to consider constitutional complaints lodged by the applicant in this regard. On 25 September 2002 the Regional Court quashed the arrest warrant of 15 January 2002. “(1) A judge who has participated in a decision which has been contested on appeal shall be barred by law from participating in the decision of a higher level of jurisdiction. (2) A judge who has participated in a decision contested by an application for reopening of the proceedings shall be barred by law from participating in decisions in the proceedings to reopen the case. If the contested decision has been given at a higher level of jurisdiction, a judge who has participated in an original decision at a lower level shall be barred. The first and second sentences shall apply mutatis mutandis to the participation in decisions to prepare the reopening of the proceedings.” “(1) A judge may be challenged both where he is barred by law from exercising judicial office and on grounds of bias. (2) A challenge on grounds of bias shall be justified if there is reason to doubt the impartiality of a judge. ...” “(1) A challenge to a judge shall be rejected by the court as being inadmissible if: 1. the challenge is not made in time; 2. there is no disclosure of the ground for the challenge or of the means by which the challenge could be substantiated ... (2) The court shall give its decision rejecting the challenge pursuant to paragraph 1 without the judge in question being excluded from the bench. ...” “... (2) Once proceedings have been instituted, the court may provisionally stay them at any stage at the request of the Public Prosecutor’s Office. ... (4) If the proceedings have been provisionally terminated on account of a penalty or measure of reform and prevention which is to be expected for another offence, the proceedings may be resumed, unless barred by limitation in the meantime, within three months after the judgment imposed for the other offence has entered into force. (5) If the court has provisionally terminated the proceedings, a court order is required for their resumption.” “... (4) If all parties entitled to lodge an appeal waive their right of appeal or if no appeal is lodged within a certain time-limit, the proven facts establishing the statutory elements of the criminal offence and the criminal provision applied must be indicated; ... The further content of the reasons for the judgment shall be determined by the court taking into consideration - at its discretion - the circumstances of the individual case. ...” “(1) The criminal divisions shall be composed of three judges, including the presiding judge, and two lay judges (grand criminal divisions) ... (2) At the opening of the main proceedings, the grand criminal division shall rule that it will be composed of two judges, including the presiding judge, and two lay judges during the main hearing unless a criminal division in the composition of three judges and two lay judges (Schwurgericht) has jurisdiction or the participation of a third judge appears necessary due to the scale or complexity of the case ...” Article 101, § 1, second sentence, of the German Basic Law provides that no one shall be deprived of his right to a decision rendered by a legally competent judge (gesetzlicher Richter). In its case-law, the Federal Constitutional Court has consistently dealt with the issue of whether a judge must be excluded for suspicion of bias in the framework of the right to a decision rendered by a legally competent judge.