EHRM, 10-08-2006, nr. 75737/01

On 23 April 1996 the applicant and his suspected accomplice D. were arrested in Cadiz in Spain on suspicion of having murdered Mrs D. On 6 May 1996 the Heilbronn District Court (Amtsgericht) issued an arrest warrant against the applicant. As the applicant objected to being extradited to Germany, he remained in detention in Spain.

On 5 July 1996 D. — the victim's adopted son — was extradited to Germany.

On 8 April 1997 a chamber of the Heilbronn Regional Court (Landgericht), presided by judge V. and also comprising judges W. and B., convicted D. of murder and of having committed robbery followed by death constituting one single offence (Mord in Tateinheit mit Raub mit Todesfolge), and of attempted murder. D. was found guilty of having murdered his adoptive mother Mrs D., of having attempted to murder his adoptive father and of having robbed his adoptive parents' belongings. According to the findings of the Regional Court, which were primarily based on the statements and admissions of the accused, these offences had been committed jointly with the applicant.

The passages of the judgment establishing the facts of the case which refer to the applicant read as follows:

The Regional Court further noted that this assessment of the facts followed essentially the accused's own submissions, who tried to place all responsibility on the applicant. Nevertheless, the Regional Court found him guilty himself. It further considered whether it was necessary to hear the applicant — who remained at the time in detention in Spain — as a witness in the proceedings against D. Having regard to the fact that the applicant had denied any involvement in the crime, the chamber did not expect that the applicant's testimony would yield any further information.

On 22 April 1997 the applicant was extradited to Germany.

On 12 February 1999 the main hearing was opened before a chamber of the Heilbronn Regional Court presided by judge W. and including judge B.; both had already sat in the chamber which had previously tried D.

At the opening of the trial, the applicant objected to the participation of judges W. and B. on the ground of possible bias (Ablehnung wegen Besorgnis der Befangenheit). He argued that the passages in the court's judgment against D., seen from his viewpoint, but also objectively, were susceptible of raising doubts about the impartiality of these judges. On being informed that a chamber presided by judge V. — who had presided over the trial against D. — would decide about the objection, the applicant raised an objection against V. on the same grounds.

On 12 February 1999 judges W. and B. submitted their respective official statements (dienstliche Äusserung) on the objection. They pointed out that it would have been more satisfactory to try both D. and the applicant in joint proceedings, as the same facts were concerned. However, this had not been possible as D. had already been extradited on 5 July 1996 and it could not be foreseen at the time when the extradition proceedings relating to the applicant would be terminated. Having regard to the necessity to expedite proceedings, the chamber found it appropriate to consider both cases in separate proceedings. During the main proceedings against D., the applicant had not been available to the court. The establishment of the facts of the case in the judgment against D. were mainly founded on D.'s own submissions. In order to assess the extent of D.'s guilt, it had been essential to cast light on the applicant's involvement. As the chamber could only base its assessment on D.'s own submissions, they had been aware of the fact that their sources of knowledge were limited and that an assessment of the applicant's possible involvement had to be left to the main proceedings against the applicant. Both judges emphasised that they had neither reached a final opinion nor adopted an inner attitude which could negatively influence their impartiality towards the applicant.

On 16 February 1999 the substitute chamber of the Heilbronn Regional Court rejected the applicant's objection against the presiding judge V. It found that the simple fact that a judge had been previously dealing with the same facts in a case against another, subsequently convicted person did not suffice to justify an objection against that judge because an accused person would reasonably presume that a judge based his judgment exclusively on the outcome of the public hearing in the specific case. According to the court, an objection would have been justified only if the judgment of 8 April 1997 had contained unjustified and degrading value judgments on the applicant. The court found this not to be the case, because it was clear from the judgment of 8 April 1997 that the passages referring to the applicant were exclusively based on D.'s submissions, as the applicant himself, having objected to his extradition from Spain, had at the time not been available to the court.

On 17 February 1999 the substitute chamber dismissed the applicant's objection against judges W. and B. for the same reasons.

On 10 December 1999 the Heilbronn Regional Court convicted the applicant, who had denied any involvement in the crimes, of murder and of having committed robbery followed by death constituting one single offence and sentenced him to life imprisonment. According to the Regional Court's findings, the applicant had killed Mrs D. in order to cover up the robbery; while D. had approved of the applicant's actions. The Regional Court based its judgment mainly on the applicant's own statements given both during preliminary investigations and during the main hearing, on incriminating testimony given by D., which the chamber followed only to a certain extent, and on corroborative evidence such as the analysis of traces found at the scene of the crime.

The applicant subsequently appealed on points of law, arguing that judges B. and W. should have been excluded from the trial. On 7 March 2001 the Federal Court of Justice (Bundesgerichtshof) rejected the appeal as unfounded, following a statement of the Federal Public Prosecutor (Generalbundesanwalt) which confirmed the Regional Court's reasoning on the issue of the impartiality of the judges.

On 22 May 2001 the applicant, who was represented by counsel, lodged a constitutional complaint in which he gave a complete account of the proceedings before the lower courts and alleged that the impugned decisions violated his right to a fair trial as guaranteed by the German Basic Law and by the Convention.

The relevant passages of the complaint read as follows:

On 20 June 2001 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant's complaint for adjudication.

The relevant passages of that court's decision read as follows:

The Government contended that the applicant did not exhaust domestic remedies as required by Article 35 § 1 of the Convention. The applicant had failed sufficiently to substantiate his constitutional complaint as required by section 23 sentence 2 in conjunction with section 92 of the Rules of Procedure of the Federal Constitutional Court. In particular, he had failed conclusively to present the extent to which the impugned decisions were based upon arbitrary considerations or why the Heilbronn Regional Court had fundamentally misjudged the meaning and implications of Article 101 § 1, second sentence of the Basic Law.

The applicant contested these arguments. He alleged that the Federal Constitutional Court erroneously declared his complaint inadmissible. The content of his submissions to that court sufficiently demonstrated that the lower courts had rejected his objections for arbitrary reasons and that they had misjudged the meaning and implications of the rights in question, including Article 6 § 1 of the Convention.

The Court reiterates that, whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it normally requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in the domestic law (see, among many other authorities, Cardot v. France, judgment of 19 March 1991, Series A no. 200, § 34).

Turning to the present case, the Court notes that the applicant, who was represented by counsel, in his submissions to the Federal Constitutional Court, gave a complete account of the proceedings before the lower courts and alleged a violation of his right to a fair trial by impartial judges as guaranteed by the German Basic Law as well as by Article 6 § 1 of the Convention. Under these circumstances, the Court finds that the applicant has expressly and in substance raised the complaint about the judges' impartiality before the Federal Constitutional Court. It follows that the applicant must be regarded as having exhausted domestic remedies.

The Court further notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

The Government pointed out, firstly, that the competence of judges in domestic criminal proceedings was established beforehand according to abstract rules, such as the first letter of the accused's name. In courts with only a few chambers, this could lead to the same judge being competent in severed criminal proceedings against co-perpetrators.

According to the Government, there was no doubt about the impartiality of judges W. or B. from either an objective or a subjective point of view. The judges of the Heilbronn Regional Court, in their judgment against D., did not express any unnecessary or factually unfounded value judgments regarding the applicant. The respective statements were those of D. himself and essential in order to establish D.'s guilt. They served the sole purpose of proving in regard to D., on the basis of his own statements and applying the doctrine of ‘in dubio pro reo’, that he had acted with the intent to kill — and not simply to injure — his victim. The Regional Court did not portray the facts as having objectively occurred, but made it clear that the depiction of the applicant's contributory acts was solely based on D.'s own statements during the main hearing. These statements were neither binding nor prejudicial in the criminal proceedings against the applicant.

With regard to the judges' subjective impartiality, the contents of the judges' official statements, the reasons for and legal significance of the passages regarding the applicant in the judgment against D., and the judges' conduct during the main hearing on the applicant's case disproved this assumption. With respect to the latter, the Government pointed out that the Regional Court had heard the applicant's case on twenty-six days, that it had thoroughly examined the credibility of D.'s testimony given in this case, that it had made extensive, if eventually fruitless efforts in order to contact the foreign witnesses named by the applicant, and that it had based its judgment also on corroborative evidence.

The applicant contested the Government's submissions. According to the applicant, there were strong indications that judges W. and B. had been subjectively biased against him. The value judgments contained in the judgment convicting D. had been totally unnecessary in order to establish D.'s guilt. D.'s criminal liability for murder did not depend on the character or features of the alleged co-offender. In the eyes of any reasonable accused, the facts of the present case justified the apprehension of bias. The applicant's apprehension was further enhanced by what was at stake for the applicant — that is, either a life sentence or an acquittal. The fact that the Regional Court more or less complied with its procedural duties in the main proceedings against the applicant did not rebut the apprehension of bias. The applicant further referred to the Court's judgment in the Rojas Moralescase (Rojas Morales v. Italy, no. 39676/98, 16 November 2000).

The Court considers, on the outset, that it is not its task to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied in the applicant's case gave rise to a violation of Article 6 § 1 (see Hauschildt v. Denmark, judgment of 24 May 1989, p. 21, Series A no. 154, § 45).

The Court reiterates that impartiality normally denotes the absence of prejudice or bias. In its consistent case-law, the Court determines the existence of impartiality for the purposes of Article 6 § 1 according to a subjective test, that is on the basis of the personal conviction and behaviour of a particular judge in a given case, and also according to an objective test, that is ascertaining whether he or she offered sufficient guarantees to exclude any legitimate doubt in this respect (see, among many other authorities, Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005-…).

In applying the subjective test the Court has consistently held that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Kyprianou, cited above, § 119; Morel v. France, no. 34130/96, § 41, ECHR 2000-VI). Having regard to the material in its possession, the Court is not satisfied that there is evidence establishing that judges W. and B. acted with any personal prejudice.

As to the second test, when applied to a body sitting as a bench, it means determining 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 (see Kyprianou, cited above, § 118; Castillo Algar v. Spain, judgment of 28 October 1998, Reports 1998-VIII, p. 3116, § 45; and Morel, cited above, § 42). 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 the fear can be held to be objectively justified (see Kyprianou, cited above, § 118; Ferrantelli and Santangelo v. Italy, judgment of 7 August 1996, Reports 1996-III, pp. 951-52, § 58, and Wettstein v. Switzerland, no. 33958/96, § 44, CEDH 2000-XII).

In the instant case, the concerns regarding the two judges' impartiality stemmed from the fact that they had given a judgment against D., which contained D.'s statements on the applicant's character and role in the offence.

The Court accepts that that situation could raise doubts in the applicant's mind about the impartiality of the criminal court. However, it has to decide whether these doubts were objectively justified. In that connection, the Court notes that the answer to that question depends on the circumstances of the specific case. The mere fact that a trial judge has made previous decisions concerning the same offence cannot be held as in itself justifying fears as to his impartiality (see Hauschildt, cited above, § 50, and Romero Martin v. Spain (dec.), no. 32045/03, 12 June 2006 concerning pre-trial decisions; Ringeisen v. Austria, judgment of 16 July 1971, Series A no. 13, p. 40, § 97 and Diennet v. France, judgment of 26 September 1995, Series A no. 325-A, p. 17, § 38 concerning the situation of judges to whom a case was remitted after a decision had been set aside or quashed by a higher court; Thomann v. Switzerland, judgment of 10 June 1996, Reports 1996-III, pp. 815–816, §§ 35–36 concerning the retrial of an accused convicted in absentia; and Craxi III v. Italy (dec.), no. 63226/00, 14 June 2001, Ferrantelli and Santangelo and Rojas Morales, cited above, § 59 and 33, respectively, concerning the situation of judges having participated in proceedings against co-offenders).

Turning to the present case, the Court notes that the Heilbronn Regional Court, in its judgment of 8 April 1997, which contained the relevant passages on the applicant, expressly stated that the established facts were essentially based on D.'s own submissions (see paragraphs 8 and 10 above), and thus did not constitute the Regional Court's assessment of the applicant's guilt. The Regional Court further took note of the fact that the applicant was unavailable to the court, as he was at the time in detention in Spain. It follows that the deciding judges had been aware of the fact that they had not yet examined the case from the applicant's point of view. This is further confirmed by the judges' official statements (see paragraph 14 above), in which they emphasised that they had been aware of the fact that their sources of knowledge had been limited and that an assessment of the applicant's possible involvement had to be left to the main proceedings against the applicant. Indeed, the assessment of facts in the judgment given against the applicant clearly differs from that in the judgment against D. and does not contain any references to that judgment, showing that the judges undertook a fresh consideration of the applicant's case.

With regard to the context of the relevant statements, the Court notes that the Heilbronn Regional Court, when giving its judgment on D., essentially followed D.'s own submissions. According to these, the lethal blows against the victim had been dealt not by D. himself, but by the applicant. In order to establish D.'s criminal liability for murder, the Regional Court had to assess the applicant's actions and intentions and had to prove that the accused D. knew and approved of these. It follows that the impugned statements had been relevant to D.'s conviction.

In these respects, the present case can be distinguished from the cases of Ferrantelli and Santangelo and of Rojas Morales (both cited above, §§ 59 and 33, respectively).

Having regard to all circumstances of this case, the Court concludes that the applicant's concerns with regard to judges W.'s and B.'s impartiality were not objectively justified. There has accordingly been no violation of Article 6 § 1 of the Convention.