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FIFTH
SECTION
CASE OF ELEZI v. GERMANY
(Application
no. 26771/03)
JUDGMENT
STRASBOURG
12
June 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Elezi v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Renate
Jaeger,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 20 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26771/03) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Serbian national, Mr
Ruzhdi Elezi
(“the applicant”), on 12 August 2003.
- The
applicant, who had been granted legal aid, was represented by
Ms
F. Weber, a lawyer practising in Berlin. The German Government
(“the
Government”) were represented by their Agent, Mrs A.
Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry
of Justice.
- The
applicant alleged, in particular, that his case had not been heard by
an “impartial tribunal”, as guaranteed by Article 6 of
the Convention, because the lay judges participating in his trial
were biased after they had been provided with a copy of the part of
the bill of indictment containing the essential results of the
prosecution's investigations.
- On
21 June 2007 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- The
Government of the Republic of Serbia, having been informed of their
right to intervene in the proceedings (Article 36 § 1 of the
Convention and Rule 44 of the Rules of Court), declared that they did
not wish to exercise that right.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1965 and lives in Berlin.
A. The investigation proceedings
- On
31 August 1999 the applicant was arrested and placed in pre-trial
detention on suspicion of having participated in smuggling
Yugoslavian nationals into Germany.
- In
the first part of its bill of indictment dated 11 May 2000 (running
to a total of 641 pages), the Berlin Public Prosecutor's Office set
out the charges (Anklagesatz, compare Article 200 § 1,
first sentence, of the Code of Criminal Procedure in paragraph 27
below) against the applicant and five co-defendants, including his
sister (pp. 1-81). It accused the defendants of numerous counts of
human trafficking, committed between 1997 and 1999 in exchange for
money and as members of a gang. In addition to that, the applicant
and his sister were charged with planning a robbery.
- In
the part of the indictment setting out the essential results of the
investigations (wesentliches Ergebnis der Ermittlungen,
compare Article 200 § 2, first sentence, of the Code of
Criminal Procedure in paragraph 28 below), the prosecution set out in
detail the exact course of events for each charge of human
trafficking and summarised the testimonies of the witnesses and the
contents of the intercepted telecommunications which were to prove
the charges (pp. 253-636 of the indictment). It took the view, inter
alia, that the applicant had concluded a fictitious contract of
employment with his sister in order to pretend to have a legal income
to support his family. Moreover, it stated that it would have to be
taken into consideration as an aggravating factor when sentencing the
applicant that he had involved his young children in his criminal
activities.
B. The proceedings before the Berlin Regional Court
- On
30 October 2000 the Berlin Regional Court opened the trial against
the applicant and four co-defendants, including his sister. The
court, sitting as a grand criminal division (große
Strafkammer), was composed of three professional judges and two
lay judges. One substitute professional judge and two substitute lay
judges also attended the hearings.
The prosecution read out the
charges against the applicant and his co-defendants at this hearing
(see Article 243 § 3 of the Code of Criminal Procedure in
paragraph 33 below).
- On
4 December 2000 the Regional Court, following her confession,
separated the proceedings against the applicant's sister from those
against the applicant. The hearings in both sets of proceedings
continued to be conducted by the same professional and lay judges.
- On
5 February 2001, in the course of the separated proceedings against
the applicant's sister, the lay judges and their substitutes were
informed of the essential results of the prosecution's investigations
against all (six) defendants by being given a copy of this part of
the indictment which they were to read outside the main hearing. The
professional judges of the Regional Court had considered it necessary
to inform the lay judges of the contents of the essential results of
the investigations as the applicant's sister had stated that she
generally confessed to the offences described therein, including
their manner of execution, without, however, being willing to make
any further, more detailed statement. The Regional Court subsequently
convicted the applicant's sister according to the confession she had
made of numerous offences of human trafficking in exchange for money
and as a member of a gang.
- On
8 February 2001 the Regional Court informed the applicant in the
course of his hearing (the fifteenth hearing before that court in his
case) that the lay judges had been given copies of the part of the
bill of indictment containing the essential results of the
investigations in the proceedings against his sister. The applicant
thereupon lodged a motion for bias against the two lay judges and
their two substitutes. He argued that the lay judges could no longer
follow the trial without prejudice after having taken note of the
entire pre-assessment of the evidence by the prosecution. Pursuant to
Article 126 § 3 of the Directives for Criminal
Proceedings and Proceedings concerning Regulatory Offences (see
paragraph 32 below) it was expressly prohibited to disclose the
essential results of the investigations to lay judges.
- On
19 February 2001 the four lay judges thereupon made a separate formal
declaration in writing in identical terms. They stated that in the
proceedings against the applicant's sister, the latter had confessed
that the accusations against her as set out in the prosecution's
essential results of the investigations were well-founded. The
applicant's sister, represented by counsel, had agreed that the lay
judges were informed of the contents of these results by being
provided with a copy of this part of the indictment, which they had
read.
- The
lay judges further explained that prior to being given a copy of this
document, the president of the chamber had informed them that, as a
rule, this part of the indictment was not disclosed to lay judges as
it contained the prosecution's view at the end of the investigation
proceedings and was not to be confused with the taking of evidence in
the main hearing. Moreover, the president had pointed out to them
that the proceedings against the applicant and those against his
sister had to be assessed separately. They were aware of this, able
to distinguish between the taking of evidence in both sets of
proceedings and knew that the essential results of the
investigations, of which they had taken note in the proceedings
against the applicant's sister, were not relevant for the taking of
evidence in the proceedings at issue. Consequently, they were not
biased against the applicant. They further stated that the
submissions in writing were their personal declarations.
- On
19 February 2001 the three professional judges of the Regional Court
dismissed the applicant's motion for bias as ill-founded. They argued
that, assessing the case in a reasonable manner, there were no
grounds to doubt the lay judges' impartiality (compare Articles 24 §
2 and 31 of the Code of Criminal Procedure in paragraph 30 below).
Having regard to the diverging views taken by the criminal courts and
by legal writers on the question as to whether lay judges could be
provided with the essential results of the investigations (see
paragraph 35 below), they took the view that Article 249 § 2 of
the Code of Criminal Procedure (see paragraph 34 below) presupposed
that lay judges took note of the contents of the case file. As the
lay judges had explained in their declarations made following the
applicant's complaints of bias, they were aware, due to the
explanations given by the professional judges, that the copy of the
part of the bill of indictment containing the essential results of
the investigations expressed the view taken by the prosecution. The
lay judges understood that this document was not to be confused with
the results of the main hearing, on which alone the judgment should
later be based. Therefore, the defendant had no reason to fear that
the lay judges could consider their reading of the document in
question part of the proceedings against him.
- On
26 February 2001 the applicant lodged a complaint of bias against the
three professional judges. He argued that they had failed to take
account of his fears that the lay judges were no longer impartial and
that the presiding judge had formulated the written declarations made
by the lay judges. The court dismissed this complaint as inadmissible
on the same day, arguing that it was in substance an appeal against
the decision of 19 February 2001 against which however no appeal
lay to the Regional Court.
- In
a total of forty-two hearings, the Regional Court read out numerous
minutes of tape recordings of intercepted telecommunications, which
had been made in Albanian and translated into German, and heard many
witnesses, some of whom had been named by the applicant, as well as
two experts on the question of his mental condition.
- On
8 October 2001 the Berlin Regional Court, while acquitting him of
having planned a robbery, convicted the applicant, inter alia,
of human trafficking, acting on a commercial basis and as a member of
a gang, and sentenced him to four years and six months' imprisonment.
It found that the applicant had been party to numerous offences of
human trafficking by storing and handing over passports belonging to
the persons smuggled into Germany by other gang members. It based its
findings on the submissions of the applicant, who had admitted having
stored and handed over passports in cooperation with his sister.
Moreover, the court considered the testimony of a police officer who
had reported on the results of the interception of the telephone
conversations made from the applicant's phone and that of the café
he ran with his sister. Furthermore, a witness who had been smuggled
into Germany had testified that he had picked up his passport at the
applicant's café. When searching his home, the police had
found 450 Yugoslavian passports. In fixing the sentence, the Regional
Court considered as a mitigating factor that the applicant had acted
also with the intention of helping his fellow countrymen who had
become refugees following the ethnic persecution of residents of
Albanian origin in Kosovo.
- The
applicant was released from prison the same day.
C. The proceedings before the Federal Court of Justice
- On
29 January 2002 the applicant lodged an appeal on points of law. He
claimed that the lay judges adjudicating on his case had been biased.
He submitted that Article 249 § 2 of the Code of Criminal
Procedure only allowed documents serving as evidence to be brought to
the notice of lay judges. However, the essential results of the
investigations were not such documents within the meaning of that
Article. Pursuant to Article 126 § 3 of the Directives for
Criminal Proceedings and Proceedings concerning Regulatory Offences,
it was expressly prohibited to allow lay judges to take note of this
part of the indictment. The fact that it was impossible for the lay
judges to distinguish between the proceedings against the applicant
and those against his sister was illustrated by the fact that even in
the judgment drafted by the professional judges the two separate
proceedings had been confused (by referring to the wrong person as
being the defendant).
- Moreover,
the applicant claimed that the Regional Court had not fulfilled its
duty to investigate the matter. In particular, it had not played the
recorded telephone conversations in the main hearing and had merely
questioned a police officer on their contents instead. In addition,
the Regional Court had failed to take into consideration relevant
submissions of an expert on the cultural background and situation in
Kosovo.
- On
26 November 2002 the Federal Court of Justice, without giving further
reasons, dismissed the applicant's appeal on points of law as
ill-founded.
D. The proceedings before the Federal Constitutional
Court
- On
6 January 2003 the applicant lodged a complaint with the Federal
Constitutional Court. Referring to his submissions before the Federal
Court of Justice, he claimed that his trial before the Berlin
Regional Court had been unfair and that his right to liberty as
guaranteed by the Basic Law had been infringed.
- On
13 February 2003 the Federal Constitutional Court declined to
consider the applicant's constitutional complaint.
E. The applicant's further detention
- Following
an order issued by the Public Prosecutor's Office, the applicant
served the remainder of his prison sentence from 31 October 2003. In
December 2004 he was again released from prison on probation, the
remaining part of his sentence having been suspended.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The bill of indictment
- Article
200 of the Code of Criminal Procedure regulates the contents of the
bill of indictment. Pursuant to Article 200 § 1, first sentence,
the bill of indictment shall indicate the accused, the criminal
offence he is charged with, the time and place of its commission, its
statutory elements and the applicable criminal provisions (the
charges). Moreover, the evidence, the court before which the main
hearing shall be held and the defence counsel shall be indicated
(Article 200 § 1, second sentence).
- According
to Article 200 § 2, first sentence, of the Code of Criminal
Procedure, the essential results of the investigations shall also be
presented in the bill of indictment.
B. Provisions concerning lay judges
- The Regional Courts, when sitting as a grand criminal
division, are composed of three professional judges, including the
president, and two lay judges (Article 76 § 1 of the Courts
Organisations Act – Gerichtsverfassungsgesetz). Pursuant
to Article 30 § 1 of the Courts Organisation Act lay judges
exercise full judicial function during the main hearing and have the
same voting rights as professional judges in so far as there are no
exceptions provided for by law.
- Article
24 § 2 of the Code of Criminal Procedure provides that a judge
may be challenged for fear of bias if there is reason to doubt his
impartiality. The provision applies, mutatis mutandis, to lay
judges (Article 31 § 1 of the Code of Criminal Procedure).
- The Directives for Criminal Proceedings and
Proceedings Concerning Regulatory Offences (Richtlinien für
das Strafverfahren und das Bußgeldverfahren – RiStBV)
set out recommendations for the prosecution authorities concerning
the conduct, in particular, of criminal proceedings. These Directives
are not statutory provisions, but administrative guidelines agreed
upon by the Ministers of Justice of all Länder.
- Article
126 § 3 of these Directives provides that the bill of indictment
may not be disclosed to the lay judges. However, notably in
proceedings concerning extensive or complex facts, they may be
provided with a copy of the charges during the main hearing after
these have been read out in court.
C. Provisions concerning the conduct of the trial
- Article
243 of the Code of Criminal Procedure regulates the course of the
trial. After the presiding judge has ascertained that the defendant
and his counsel as well as witnesses and experts summoned are present
and has questioned the defendant on his personal situation (§§
1 and 2), the Public Prosecutor shall read out the charges (§
3).
- According
to Article 249 § 1 of the Code of Criminal Procedure, title
deeds and other documents serving as evidence shall be read out at
the main hearing. Article 249 § 2 of the Code of Criminal
Procedure provides that the reading out may be dispensed with if the
professional and lay judges have taken note of the wording of the
title deed or document and if the other participants had an
opportunity to do so (so-called self-reading procedure –
Selbstleseverfahren).
D. Case-law on the question whether lay judges may have
knowledge of the essential results of the investigations
- In
its judgment of 26 March 1997 (no. 3 StR 421/96, Collection of the
Decisions of the Federal Court of Justice (Criminal Division)
(BGHSt), vol. 43, pp. 36 et seq., 38-39), the Federal
Court of Justice reiterated:
“Access to case files for lay judges – just
as for associate professional judges – is not regulated by
law. It appears that until now the courts only dealt with the
specific case of providing a report by the Public Prosecutor's Office
on the essential results of the investigations to lay judges, which
they considered as unlawful. The Supreme Court of the German Reich,
referring to the legislator's will as apparent from the law's
drafting history, specified in this respect that providing [the
report to lay judges] contravened the principles of oral proceedings
and immediacy. Lay judges risked mixing up their impressions from
that report with those from the main hearing whereas professional
judges, as a rule, were able to distinguish between the two sources
of information due to their training and professional experience (see
Collection of the Decisions of the Supreme Court of the German Reich
(RGSt), vol. 69, pp. 120, 124). The Federal Court of
Justice has until now shared this legal opinion (BGHSt, vol.
5, pp. 261 et seq.; ... BGHSt, vol. 13, pp. 73 et seq.
...; Juristische Rundschau (JR), 1987, p. 389).
However, the First Senate, in an obiter dictum, raised doubts
as to whether it would further follow these precedents, because
different treatment for professional and lay judges was not provided
for by law and no convincing reasons could be given for it. Lay
judges, who were called upon to decide on all difficult factual and
legal issues together and of equal rank with the professional judges,
could well be believed to be capable of understanding the sense and
meaning of the bill of indictment (Federal Court of Justice, judgment
of 23 February 1960, no. 1 StR 648/59).
On the contrary, the majority of legal writers today
consider granting lay judges access to the case files to be lawful
...
The Senate does not have to decide in the present case
whether the existing practice of the Federal Court of Justice on
providing the essential results of the investigations to lay judges
can be upheld or whether the doubts expressed by the First Senate and
the dissenting opinion of legal writers have to be preferred, what it
indeed tends to do. In any event, it considers providing minutes of
tape-recordings as a means to facilitate the better understanding of
the taking of evidence about intercepted telecommunications in the
main hearing to be lawful. It may adjudicate on this issue ...
because providing such documents is vitally different from taking
note of the essential results of the investigations, which
essentially involves the evaluation of the suspicion of a criminal
act on the part of the Public Prosecutor's Office.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION DUE TO
A LACK OF IMPARTIALITY OF THE REGIONAL COURT
- The
applicant complained that his case had not been heard by an
“impartial tribunal” because the lay judges participating
in his trial were biased after they had been provided with a copy of
the part of the bill of indictment containing the essential results
of the prosecution's investigations. He relied on Article 6 § 1
of the Convention which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
- The
Government contested that argument.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant argued that his fears as to the lay judges' impartiality
were objectively justified as the latter had taken note of the
essential results of the investigations drawn up by the Public
Prosecutor's Office, which contained its evaluation of the evidence
and of the prevailing suspicion against him. As confirmed not only by
Article 126 § 3 of the Directives for Criminal Proceedings and
Proceedings Concerning Regulatory Offences, but in particular by the
well-established case-law of the Federal Court of Justice, lay judges
risked being unduly influenced by this pre-assessment of the evidence
made by the prosecution and thus risked being prejudiced against a
defendant if they took note of this part of the bill of indictment
before or during the trial. Even in complex proceedings, lay judges
could therefore, as again confirmed by Article 126 § 3 of the
Directives for Criminal Proceedings and Proceedings Concerning
Regulatory Offences, only be provided with a copy of the part of the
bill of indictment containing the charges.
- Moreover,
in the applicant's submission, the evaluation of the evidence made by
the Public Prosecutor's Office in the present case had been drafted
in a partial manner. This evaluation, in which the latter set out why
the defendant should be convicted as charged, had a strong impact on
the lay judges and was thus not comparable to biased media coverage
of criminal proceedings, even though the latter could also lead to a
breach of a defendant's right to a fair trial. Despite having been
cautioned by the professional judges, the lay judges could not be
considered as having been able to distinguish between the criminal
proceedings against the applicant and those against his sister. This
was proved by the fact that even the professional judges had
confounded the different defendants and the assessment of the
evidence in the two sets of proceedings in their judgment against the
applicant. The court should therefore have verified the confession
made in general terms by the applicant's sister by taking evidence at
her trial instead of providing the lay judges with a copy of the
essential results of the investigations.
- In
the Government's view, the applicant's fear as to the lay judges'
impartiality was neither subjectively nor objectively justified. They
argued that the status of lay judges in the criminal proceedings in
general permitted them to have knowledge of the contents of the
entire case file, without this raising an issue of partiality. Lay
judges had equal status as professional judges during the trial.
There was no statutory provision which precluded giving lay judges a
full copy of the bill of indictment. On the contrary, the exercise of
their functions with equal voting rights (see Article 30 of the
Courts Organisation Act) warranted that they disposed of the same
information as professional judges. Article 126 § 3 of the
Directives for Criminal Proceedings and Proceedings Concerning
Regulatory Offences only lay down recommendations which were not
binding for the courts and of which the Public Prosecutor's Office
could diverge if the special circumstances of a case called for such
divergence. After all, lay judges were also considered capable of
basing their judgment only on the admissible evidence taken at the
trial in other circumstances, for example in cases of biased media
coverage of the proceedings or in cases in which the use of evidence
taken at the trial later proved to be prohibited.
- The
Government further submitted that, in any event, providing the lay
judges with a copy of the entire bill of indictment had been
justified in the circumstances of the present case because of the
complexity of the proceedings. Moreover, the applicant's sister had
made a confession by referring only in general terms to the contents
of the bill of indictment. The contents of the latter therefore had
to be introduced into her trial. This had been done by providing the
lay judges with a copy of the bill of indictment, instead of reading
the bill out in its entirety in open court, in order to help the lay
judges with the performance of their task. By cautioning the lay
judges that the essential part of the investigations reflected the
prosecution's view and could not be considered as a basis for the
judgment in the applicant's case, the professional judges had taken
the necessary measures to enable the lay judges to distinguish
between the two sets of proceedings. The lay judges were thus aware
that in the proceedings against the applicant only the evidence taken
during the trial was relevant.
2. The Court's assessment
- The
Court reiterates that the existence of impartiality for the purposes
of Article 6 § 1 must be determined according to a subjective
test, that is on the basis of the personal conviction of a particular
judge in a given case, and also according to an objective test, that
is ascertaining whether the judge has offered guarantees sufficient
to exclude any legitimate doubt in this respect (see Fey v.
Austria, judgment of 24 February 1993, Series A no. 255-A,
p. 12, § 28; Saraiva de Carvalho v. Portugal, judgment of
22 April 1994, Series A no. 286-B, p. 38, § 33; and Morel
v. France, no. 34130/96, § 40, ECHR 2000-VI).
- As
to the subjective test, the Court notes that the applicant did not
dispute the lay judges' personal impartiality and there is nothing to
indicate that they acted with any personal bias against him.
- Under
the objective test, when applied to a body sitting as a bench, it
must be determined whether, quite apart from the personal conduct of
any of the members of that body, there are ascertainable facts which
may raise doubts as to its impartiality. In this respect even
appearances may be of some importance. It follows that when it is
being decided whether in a given case there is a legitimate reason to
fear that a particular body lacks impartiality, the standpoint of
those claiming that it is not impartial is important but not
decisive. What is decisive is whether this fear can be held to be
objectively justified (see, inter alia, Morel, cited
above, § 42; Kyprianou v. Cyprus [GC], no. 73797/01,
§ 118, ECHR 2005-XIII; and Lindon, Otchakovsky-Laurens and
July v. France [GC], nos. 21279/02 and 36448/02, § 77, ECHR
2007-...).
- The
Court finds that in the present case it must first examine whether
the procedure chosen in disclosing to the lay judges the essential
results of the investigations drawn up by and giving the view of the
prosecution was, as suggested by the applicant, illegal, or amounted
to such a radical or unusual departure from the normal practice in
criminal proceedings to his detriment that it must be considered to
raise objectively justified fears as to the court's impartiality for
that very reason (see, mutatis mutandis, Academy Trading
Ltd. and Others v. Greece, no. 30342/96, § 46, 4 April
2000).
- The
Court observes in this respect that the question of access by lay
judges to the case files (which includes the entire bill of
indictment) is not regulated by the Code of Criminal Procedure.
Article 30 § 1 of the Courts Organisation Act provides that lay
judges exercise full judicial function in the main hearing and have
the same voting rights as professional judges and thus does not
provide for a different treatment of professional and lay judges.
Even though it recently expressed doubts as to whether it would
uphold that case-law in the future, the Federal Court of Justice has
nevertheless consistently found until the 1980s that providing the
essential results of the investigations to lay judges would
contravene the Code of Criminal Procedure as lay judges risked mixing
up the contents of the essential results of the investigations,
containing the prosecution's evaluation of the evidence, with the
matters from the main hearing. Likewise, Article 126 § 3 of the
Directives for Criminal Proceedings and Proceedings Concerning
Regulatory Offences provides that that part of the indictment may not
be disclosed to lay judges.
- In
the present case, the part of the bill of indictment in question was
disclosed to the same lay judges in the proceedings against the
applicant's sister, which had been separated from the applicant's
proceedings in order to speed up the proceedings against her
following her confession. Moreover, the reason for this disclosure
was not to provide the lay judges with the prosecution's evaluation
of the available evidence but to give them the necessary information
on the exact contents of a confession made in the court hearing
itself: The applicant's sister had made a general statement that she
confessed to the offences as described in the essential results of
the investigations without, however, being willing to set out her
confession in a more detailed manner. It was therefore necessary to
clarify at the trial the full contents of her confession which she
had made by merely referring to a part of the bill of indictment.
Normally this would be done by reading out the essential results of
the investigations in open court. Instead of reading out the
information, the lay judges read it themselves. They were the only
participants in the proceedings who had not yet received a full copy
of the bill of indictment.
- In
these circumstances, the Court is not convinced that the procedure
chosen in disclosing the impugned part of the bill of indictment was
objectively unjustified in the context of these proceedings.
- The
Court shall further examine whether there were objectively justified
grounds for the applicant to fear that the lay judges, by this
procedure, had already reached a preconceived view as to his guilt at
an early stage of his trial. It reiterates in this connection that
the fact that a judge has previously obtained detailed knowledge of
the case file alone does not entail any prejudice on his part that
would prevent his being regarded as impartial when the decision on
the merits is taken (see Saraiva de Carvalho, cited above, p.
39, § 38, and Morel, cited above, § 45).
- In the circumstances of the case, the lay judges'
impartiality was ensured by sufficient safeguards (compare also
Ekeberg and Others v. Norway, nos. 11106/04, 11108/04,
11116/04, 11311/04 and 13276/04, § 48, 31 July 2007). It emerges
from the lay judges' declaration made following the applicant's
motion for bias against them that the president of the chamber had
explained to them the nature of the essential results of the
investigations prior to providing them with a copy. They had
understood that the prosecution's view expressed therein was not the
basis for the judgment to be rendered in the applicant's case, which
was to be grounded on the evidence taken in the main hearing alone.
The Court further notes that the lay judges had knowledge of the
impugned part of the bill of indictment since the fifteenth day of
the hearing in the applicant's case and that more than twenty further
hearings were held afterwards in which evidence was taken before the
Regional Court delivered its judgment in the applicant's case. In
view of this, it does appear that the lay judges made their final
assessment as to the applicant's guilt on the basis of the evidence
produced and the arguments heard at the hearings.
- The
Court further observes that the applicant did not challenge the
Regional Court's impartiality due to the fact that the latter,
sitting in the same composition, had previously convicted his sister,
an accomplice.
- Therefore,
the applicant's fears as to the impartiality of the lay judges cannot
be regarded as objectively justified. Thus, the Court does not have
to determine whether such fears could only legitimately concern the
two lay judges finally adjudicating on the applicant's case, or also
extend to the two substitute lay judges who participated throughout
the trial. It further does not have to decide on the general question
under Article 6 § 1 of the Convention whether lay judges should
not rather be treated on an equal footing with professional judges,
whose knowledge of the entire bill of indictment is not considered to
raise any doubts as to their impartiality.
- There
has accordingly been no violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained that he had not had a fair trial before
the Berlin Regional Court within the meaning of Article 6 § 1 of
the Convention. That court had failed to comply with its duty
properly to investigate each of the numerous charges against him of
human trafficking and to observe the principle of contradictory
taking of evidence, in particular as it did not listen to the
recorded intercepted telecommunications at the hearing and failed to
take into consideration the relevant submissions of an expert.
Moreover, the Regional Court had disregarded the presumption of
innocence guaranteed by Article 6 § 2 of the Convention in that
it had obtained its conviction of his guilt from other sources than
the taking of evidence in the hearing itself. Furthermore, the order
made by the Public Prosecutor's Office that he had to serve the
remainder of his prison sentence had violated Article 5 § 1 (a)
of the Convention because his conviction had been imposed following
unfair proceedings by a partial tribunal.
- The
Court has examined the remainder of the applicant's complaints as
submitted by him. However, having regard to all the material in its
possession, the Court finds that, even assuming the exhaustion of
domestic remedies in all respects, these complaints do not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention or its Protocols.
- It
follows that this part of the application must be rejected as
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the lack of
impartiality of the Regional Court admissible and the remainder of
the application inadmissible;
- Holds that there has been no violation of
Article 6 of the Convention.
Done in English, and notified in writing on 12 June 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
