FOURTH SECTION
DECISION
Application no. 37027/20
Dirk ALARICH
against Germany
The European Court of Human Rights (Fourth Section), sitting on 17 October 2023 as a Committee composed of:
Faris Vehabović, President,
Anja Seibert-Fohr,
Sebastian Răduleţu, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 37027/20) 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”) on 18 August 2020 by a German national, Mr Dirk Alarich, who was born in 1968 and lives in Kühlungsborn (“the applicant”) and was represented by Ms C. Bertheau, a lawyer practising in Berlin;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant’s inability to examine witnesses in criminal proceedings against him and the alleged lack of impartiality of the sitting judges.
2. The applicant and four accomplices (A., B., C. and D.) were prosecuted for multiple counts of fraud. They had allegedly used falsified payslips in order to obtain bank loans for individuals who lacked the necessary creditworthiness. Once the loans were disbursed, these individuals would transfer a portion of the money to the perpetrators.
3. In a first set of criminal proceedings against A., B. and C. the accused gave statements naming the applicant and D. as the main culprits. On 1 July 2016 the Rostock Regional Court convicted A., B. and C. of several counts of fraud. While the operative part of the judgment did not state that the accused had been convicted as members of a gang, the reasons in the judgment did refer to the commission of the criminal acts as part of a gang in several instances.
4. The facts of the case, as established by the Regional Court, refer also to the applicant. The court found, notably, that the three accused and the applicant had acted based on a shared plan and the applicant’s name was predominantly mentioned in connection with the actions of A., B. and C. In terms of specific contributions of the applicant to the criminal acts in question, the court primarily found that he had distributed the proceeds of the crimes among the group. The court characterized the applicant’s participation in the crimes, inter alia, as follows:
“[...] the accused conspired with the separately prosecuted [the applicant] and D. to commit, jointly and for an undefined duration, various unspecified acts of fraud against credit institutions with the goal of establishing a substantial and lasting source of income.
According to the plan devised by A. and B. (as well as [the applicant]), the bank was to be deceived regarding the purchase price of EUR 220,000 in order to obtain a loan in the same amount from which A., B. and [the applicant] intended to benefit.
Furthermore, the number of criminal acts carried out according to the same pattern indicates that each of the accused and the separately prosecuted [the applicant] and D. were familiar with all essential aspects of the “system” and that they had joined forces with the intention of continuing these activities; [...]”
5. Subsequently, the applicant and D. were charged with nine counts of fraud as members of a gang with A., B. and C., in respect of which the latter had already been convicted. The trial before the Rostock Regional Court began on 17 November 2016. The court was composed of the same three professional judges, only the two lay judges were replaced.
6. A., B. and C. relied on their right not to incriminate themselves. The judgment against them had not yet become final as they had lodged appeals against it. Instead, the court read out the corresponding passages from the first judgment and heard as witnesses regarding these statements the representative from the public prosecutor’s office and the two lay judges who had participated in the first proceedings. Furthermore, the court heard the loan recipients as witnesses. Their contact with the alleged perpetrators had usually been limited to B., but one witness stated that the applicant had driven him to the bank in order to sign the loan agreement. In addition, the court heard several witnesses regarding similar acts of fraud with which the applicant had not been charged. The witnesses could testify to the applicant’s participation in obtaining the respective loans. Moreover, an acquaintance of the applicant who had been involved in one of the cases with which A., B. and C. had been charged was heard.
7. The applicant also asked to hear the three professional judges as witnesses regarding the fact that the statements provided by A., B. and C. at the first trial, as far as they concerned the applicant’s participation in the crimes, had been lacking in detail. The court rejected the request as irrelevant. Under the Code of Criminal Procedure, a judge who is heard as a witness is barred by law from exercising his judicial office in the same criminal proceedings.
8. On 7 May 2018 the applicant was sentenced to 4 years and 3 months’ imprisonment. The findings regarding the individual criminal acts committed by the applicant and his accomplices were in large part identical to the findings in the first judgment. In establishing these facts, the court primarily relied on the statements made by A., B. and C. in the first set of proceedings (see paragraph 6 above). It gave a detailed account of why it considered the statements incriminating the applicant reliable, referring to the witness statements of the loan recipients and several additional pieces of circumstantial evidence established in the course of the proceedings, such as the fact that the applicant had driven one of the loan recipients to the bank (see paragraph 6 above). The court further stated why it did not believe that A., B. and C. had colluded against the applicant, pointing out that their statements had been partly incongruous in their content and that A., B. and C. had also incriminated each other. Furthermore, the court stated why the version of the facts provided by the applicant’s acquaintance (see paragraph 6 above), which downplayed the applicant’s involvement, could not be considered reliable.
9. The applicant’s appeals against his conviction were to no avail.
10. Relying on Article 6 §§ 1 and 3 (d) of the Convention, the applicant complained that the Regional Court judges had not been impartial and, furthermore, that he had been unable to examine witnesses A., B. and C. at any point during the proceedings.
THE COURT’S ASSESSMENT
Alleged violation of Article 6 of the ConventionAlleged lack of impartiality
11. The general principles on impartiality, as well as those relating to impartiality in the context of a judge’s participation in previous decisions on the same subject matter, have recently been summarised in the Court’s judgment in the case of Meng v. Germany (no. 1128/17, §§ 42‑52, 16 February 2021, with further references). The mere fact that a trial judge has made previous decisions concerning the same offence, or that he or she has already tried a co‑accused in separate criminal proceedings, is not in itself sufficient to cast doubt on that judge’s impartiality in a subsequent case (see Meng, cited above, § 47, and Poppe v. the Netherlands, no. 32271/04, § 26, 24 March 2009). The Court has previously accepted, in particular, that in complex criminal proceedings involving several persons who cannot be tried together, references by the trial court to the participation of third persons, who may later be tried separately, may be indispensable for the assessment of the guilt of those who are on trial (see Meng, cited above, §§ 47, 57). An issue as to the judge’s impartiality arises where the earlier judgment already contains a detailed assessment of the role of the person judged subsequently in an offence committed by several persons and, in particular, where the earlier judgment contains a specific qualification of the involvement of the applicant or must be seen to have determined that the person judged subsequently fulfilled all the criteria necessary to have committed a criminal offence, including the applicant’s guilt (see Meng, cited above, §§ 48, 61). Objectively justified doubts were found to arise, in particular, where the domestic courts, over and above giving an account of the facts regarding the person judged subsequently, also made a legal assessment of the acts of that person (ibid., § 61) The Court has also found on numerous occasions that Article 6 § 1 of the Convention had not been violated, in the absence of an assessment of the applicant’s guilt in the earlier proceedings (ibid., § 49).
12. The Court observes that the applicant’s allegations of lack of impartiality concerned professional judges (see paragraph 5 above), who must be assumed to have been more trained, accustomed and prepared than would a lay judge to disengage themselves from their experience of and findings in the previous trial against the applicant’s alleged co‑perpetrators (see Mucha v. Slovakia, no. 63703/19, § 51, 25 November 2021).
13. Turning to the judgment against A., B. and C., the Court notes that in the instances in which the Regional Court referred to the accused collaborating with the applicant (see paragraph 4 above), it presented its findings as established facts and not as mere suspicions (see paragraph 4, and compare Meng, cited above, § 60). However, the Regional Court referred to the applicant as separately prosecuted or put his name in brackets after referring to the accused (see paragraph 4 above), thus underlining the fact that it was not called upon to determine the applicant’s guilt but was only concerned with assessing the criminal responsibility of those accused within the scope of the proceedings at issue (compare Karaman v. Germany, no. 17103/10, § 69, 27 February 2014, and compare and contrast Mucha, cited above, § 61).
14. Furthermore, the Court observes that the applicant was usually referred to in connection with the accused and that the findings with regard to him focused on the shared plan and the distribution of the proceeds of the crimes, whereas it did not refer to specific actions by the applicant in the execution of the individual criminal acts (see paragraph 4 above, compare and contrast Mucha, cited above, § 55, where the court’s findings regarding the applicant concerned constituent elements of the offences in question). Neither did the Regional Court make a legal assessment in respect of the applicant (compare and contrast Meng, cited above, § 61 where the applicant had been found “equally guilty”).
15. Lastly, with regard to the proceedings against the applicant himself, the Court observes that the Regional Court had again heard several witnesses and had thus demonstrated its willingness to make a fresh consideration of the case (see paragraph 6 above, and compare Meng, § 50).
16. In light of the above, the Court cannot conclude that the applicant’s doubts as to the Regional Court’s impartiality were objectively justified.Inability to examine witnesses
17. The general principles concerning the right to examine witnesses, in the context of the use of statements made by witnesses for the prosecution who are absent at trial have been summarised in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 118‑47, ECHR 2011) and Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100‑31, ECHR 2015). The Court has applied the same principles to the use of statements by witnesses who are not absent at trial, but refuse to testify relying on the privilege against self-incrimination (see Vidgen v. the Netherlands, no. 29353/06, § 42, 10 July 2012; and Cabral v. the Netherlands, no. 37617/10, § 33, 28 August 2018).
18. A., B. and C. had refused to testify in the proceedings against the applicant on the grounds that their convictions for the same criminal acts had not yet become final (see paragraph 6 above). It follows that the Regional Court was under an obligation to respect the witnesses’ decision to avail themselves of their statutory right not to testify and thus had good reason for admitting their untested statements (compare Sievert v. Germany, no. 29881/07, § 61, 19 July 2012).
19. Regarding the weight of the evidence provided by A., B. and C., the Regional Court could rely on some additional elements linking the applicant to the crimes in question (see paragraph 6 above). However, the court primarily referred to the statements provided by the alleged co‑perpetrators, which provided the only insight into the inner workings of the group (see paragraph 8 above). These statements must thus be considered as the decisive basis for the applicant’s conviction.
20. Turning to the question of whether there were sufficient counterbalancing factors, the Court would begin by observing that the Regional Court approached the untested evidence with caution and gave detailed reasons why it considered the statements given by A., B., and C. reliable (see paragraph 8 above, and compare Schatschaschwili, cited above, §§ 146‑150). Since the applicant knew the identity of his alleged accomplices, he was able to identify and investigate any motives they may have had for lying and could therefore contest effectively their credibility (compare ibid., § 131). In this regard, the Court observes that the Regional Court also heard a witness whose testimony was of a nature potentially to cast doubt on the reliability of the said statements and gave detailed reasons why it did not consider his statement reliable (see paragraphs 6 and 8 above). Furthermore, since A., B. and C. had only given statements at their own trial (see paragraph 3 and 6 above), it was not imputable to the domestic authorities that the applicant was unable to question the witnesses (compare, Sievert, cited above, § 60). Lastly, the Court finds no fault with the rejection of the request to hear the trial judges as witnesses (see paragraph 7 above). Since such an action would have made a retrial before a different judicial formation necessary, hearing the judges as witnesses could not be considered a valid counterbalancing factor.
21. In conclusion, the Court, assessing the overall fairness of the applicant’s trial, considers that, in the circumstances of the present case, the counterbalancing factors were sufficient to compensate for the lack of opportunity to examine the witnesses directly at trial.Conclusion
22. It follows that the complaints under Article 6 §§ 1, 3 (d) are inadmissible under Article 35 § 3 (a) as manifestly ill‑founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 November 2023.
Ilse Freiwirth Faris Vehabović
Deputy Registrar President
Full & Egal Universal Law Academy