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Article Germany: Constitutional Court Rules When ECHR Is Violated, Criminal Proceedings Must Be Reopened Without Requiring Proof the Judgment Against the Defendant Was Influenced by the Violation

In an order published on January 26, 2024, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) held that when the European Court of Human Rights (ECtHR) finds that a national judgment violates the European Convention on Human Rights (ECHR), national criminal proceedings must be reopened without requiring the defendant to demonstrate that the violation could have influenced the convicting court’s decision. The Constitutional Court remanded the matter to the Higher Regional Court for a new decision.

Facts of the Case

On April 9, 2014, the defendant was sentenced to life imprisonment for murdering her then-husband by the regional court of Frankfurt. The presiding judge in her criminal trial had already participated as judge rapporteur (reporting judge) in a previous separate criminal trial at the regional court of Frankfurt against her former partner for the same crime. The judgment in that case contained numerous references to the defendant and her participation in the crime. (BVerfG decision, paras. 2, 6.)

The defendant challenged the presiding judge in her case as potentially biased, but her complaint was rejected, and she was convicted. Her subsequent appeal at the Higher Regional Court of Frankfurt and her constitutional complaint against the participation of the judge at the German Federal Constitutional Court were both unsuccessful. She then filed an application with the ECtHR for a violation of the ECHR. The ECtHR found in her favor and ruled that the participation of the judge in her trial at the regional court violated article 6 of the ECHR (right to a fair trial). (Paras. 4, 5, 7–12.) The ECtHR stated that it “considers that there is nothing to indicate that judge M. acted with personal prejudice in the proceedings against the applicant. Consequently, the judge’s personal impartiality must be presumed (subjective test).” The ECtHR continued, however, that “the Regional Court, in its judgment against G.S., presented its findings regarding the applicant as established facts” and concluded that “the applicant had a legitimate fear that judge M., in the light of the wording of the judgment against G.S., had already reached a preconceived view on her guilt.” (ECtHR decision, paras. 53, 60, 63.)

In light of the ECtHR judgement, the defendant applied to the regional court to have her criminal proceedings reopened according to section 359, number 6 of the German Code of Criminal Procedure (Strafprozessordnung, StPO). Section 359, number 6 provides that criminal proceedings must be reopened if the ECtHR has held that there has been a violation of the ECHR and the judgment was based on that violation. However, the regional court dismissed the application as inadmissible. Likewise, her complaint to the higher regional court was rejected as unfounded. The higher regional court stated that the burden of proof to demonstrate that the judgment was based on a violation of the ECHR was on the defendant and that she failed to do so. The defendant therefore filed a constitutional complaint at the Federal Constitutional Court on August 26, 2022. (BVerfG decision, paras. 13, 17, 19, 22, 24.)

Decision

The Constitutional Court held that the higher regional court’s refusal to reopen the criminal proceedings violated the defendant’s general right of access to justice under article 2, paragraph 1 in conjunction with article 20, paragraph 3 of the German Basic Law (Grundgesetz, GG). In the opinion of the court, requiring the defendant to show that the judgment was based on a violation of the ECHR was “unattainable and unreasonable” and therefore obstructed her access to a new trial in a manner that cannot be justified by factual reasons. (BVerfG decision, para. 54.)

The Constitutional Court stated that while the Higher Regional Court had required the defendant to demonstrate that the judgment contained indicators of possible bias, the ECtHR had stated that the judge’s impartiality must be presumed. The Constitutional Court further said that the lower court had failed to recognize that the ECtHR did not base its finding that the ECHR was violated on the grounds that an actually biased judge participated in the trial, but that an objective test from the defendant’s perspective made the judge’s involvement questionable. The lower court failed to recognize that the possible bias does not have to be reflected in the judgment, but that the participation of the judge alone resulted in a violation of the ECHR. (Paras. 62–64.)

Lastly, the court explained that, even though a judgment must be based on a violation of the ECHR for criminal proceedings to be reopened, this requirement must not result in certain ECHR violations being excluded at the outset from the scope of the criminal procedure provision. In the opinion of the court, such a narrow interpretation would contradict the constitutional requirements triggered by a violation of the right to one’s lawful judge under article 101, paragraph 1, second sentence of the Basic Law. The right to a fair trial codified in article 6 of the ECHR corresponds to the constitutional guarantee to a lawful judge. In cases involving an unlawful composition of the bench, article 101 of the Basic Law requires that the criminal conviction be reversed. A violation of article 6 of the ECHR can be no less weighty and must be taken into account when interpreting and applying section 359, number 6 of the code of criminal procedure. (Paras. 69–74.)

Jenny Gesley, Law Library of Congress
February 21, 2024

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Chicago citation style:

Gesley, Jenny. Germany: Constitutional Court Rules When ECHR Is Violated, Criminal Proceedings Must Be Reopened Without Requiring Proof the Judgment Against the Defendant Was Influenced by the Violation. 2024. Web Page. https://www.loc.gov/item/global-legal-monitor/2024-02-20/germany-constitutional-court-rules-when-echr-is-violated-criminal-proceedings-must-be-reopened-without-requiring-proof-the-judgment-against-the-defendant-was-influenced-by-the-violation/.

APA citation style:

Gesley, J. (2024) Germany: Constitutional Court Rules When ECHR Is Violated, Criminal Proceedings Must Be Reopened Without Requiring Proof the Judgment Against the Defendant Was Influenced by the Violation. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2024-02-20/germany-constitutional-court-rules-when-echr-is-violated-criminal-proceedings-must-be-reopened-without-requiring-proof-the-judgment-against-the-defendant-was-influenced-by-the-violation/.

MLA citation style:

Gesley, Jenny. Germany: Constitutional Court Rules When ECHR Is Violated, Criminal Proceedings Must Be Reopened Without Requiring Proof the Judgment Against the Defendant Was Influenced by the Violation. 2024. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2024-02-20/germany-constitutional-court-rules-when-echr-is-violated-criminal-proceedings-must-be-reopened-without-requiring-proof-the-judgment-against-the-defendant-was-influenced-by-the-violation/>.