In the Colak case*,
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* Note by the Registrar: The case is numbered 15/1987/138/192. The
second figure indicates the year in which the case was referred to the
Court and the first figure its place on the list of cases referred in
that year; the last two figures indicate, respectively, the case's
order on the list of cases and of originating applications (to the
Commission) referred to the Court since its creation.
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The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr C. Russo,
Mr R. Bernhardt,
Mr J.A. Carrillo Salcedo,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 26 October and 24 November 1988,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 18 December 1987, within the
three-month period laid down in Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 9999/82) against the Federal Republic of Germany
lodged with the Commission under Article 25 (art. 25) by
Mr Serif Colak, a Turkish national, on 7 June 1982.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) of the Convention and to the declaration whereby the Federal
Republic of Germany recognised the compulsory jurisdiction of the
Court (Article 46) (art. 46). The object of the request was to obtain
a decision from the Court as to whether the facts of the case
disclosed a breach by the respondent State of its obligations under
Article 6 para. 1 (art. 6-1).
2. The Registrar endeavoured to reach Mr Colak - in particular
through Mr Rosenberg, the lawyer who had acted for him before the
Commission - in order to put to him the enquiry provided for in
Rule 33 para. 3 (d) of the Rules of Court, but despite several attempts he
was unsuccessful, being unable to discover the applicant's
whereabouts.
3. The Chamber to be constituted included ex officio
Mr R. Bernhardt, the elected judge of German nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 29 January 1988, in the presence of the
Registrar, the President drew by lot the names of the other five
members, namely Mr G. Lagergren, Mr F. Matscher, Mr R. Macdonald,
Mr J. Gersing and Mr A. Donner (Article 43 in fine of the Convention
and Rule 21 para. 4) (art. 43). Subsequently, Mr C. Russo,
Mr J.A. Carrillo Salcedo and Mr L.-E. Pettiti, substitute judges,
replaced Mr Donner and Mr Lagergren, who had resigned before the
hearing, and Mr Gersing, who had died (Rules 2 para. 3, 22 para. 1 and
24 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Deputy Registrar, consulted the Agent
of the German Government ("the Government") and the Delegate of the
Commission on the need for a written procedure (Rule 37 para. 1). In
accordance with the order made in consequence, the Registrar received
the Government's memorial on 30 May 1988. In a letter of 18 July, the
Secretary to the Commission informed him that the Delegate would
submit his observations at the hearing.
5. Having consulted, through the Deputy Registrar, those who
would be appearing before the Court, the President directed on
3 August 1988 that the oral proceedings should open on 25 October
(Rule 38). On 26 August he granted the Agent of the Government leave
to address the Court in German (Rule 27 para. 2).
6. On 20 September 1988, the Commission produced various
documents requested by the registry on the President's instructions.
Two further documents were lodged by the Government on 10 October.
7. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting immediately beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Meyer-Ladewig, Ministerialdirigent,
Federal Ministry of Justice, Agent,
Mr D. Wanner, Staatsanwalt,
Federal Ministry of Justice, Adviser;
(b) for the Commission
Mr E. Busuttil, Delegate.
The Court heard addresses by Mr Meyer-Ladewig for the Government and
Mr Busuttil for the Commission, as well as their replies to its
questions.
AS TO THE FACTS
8. Serif Colak, a Turkish national born in 1935, lived and worked
in the Federal Republic of Germany for a number of years.
9. During the night of 20-21 April 1979, in the course of a fight
in a Frankfurt restaurant, he injured another Turk by a knife thrust
to the abdomen.
He was arrested on 27 April on grave suspicion of attempted murder
(versuchter Totschlag - Articles 212 and 23 of the Criminal Code).
The following day, the Frankfurt District Court (Amtsgericht) ordered
his detention on remand. The detention order stated that he was
suspected of causing grievous bodily harm (gefährliche
Körperverletzung - Articles 223 and 223a of the Criminal Code).
10. On an application by the prosecuting authority, the District
Court altered the detention order on 29 May 1979, after having heard
the accused and in the light of the statements of witnesses and
information obtained by the police. Mr Colak was now under suspicion
of attempted murder, an offence which carries a very heavy sentence.
This new order remained the legal basis for the applicant's detention
until final sentencing.
1. The committal proceedings
11. On 13 October 1979, the prosecuting authority referred
Mr Colak's case to the Frankfurt Regional Court (Landgericht). It
charged him with attempted murder and requested the opening of trial
proceedings (Hauptverfahren) in the Assize Court (Schwurgericht -
section 74 para. 2 of the Courts Act - Gerichtsverfassungsgesetz).
On 20 November 1979, the applicant received notification in German and
in Turkish of the indictment (Anklageschrift), on which he was able to
express his views when he appeared before the President of the Assize
Court (Article 201 of the Code of Criminal Procedure). On this
occasion the applicant did not raise any objection to his committal
for trial on the charge set out in the indictment.
12. On 18 December 1979, the 20th (Criminal) Chamber (Strafkammer)
of the Regional Court rejected the public prosecutor's request for the
trial to be held before the Assize Court and opened the trial
proceedings in the Extended Criminal Chamber (Grosse Strafkammer -
section 74 para. 1 of the Courts Act). It considered that the accused was
under grave suspicion not of attempted murder but of causing grievous
bodily harm.
The prosecuting authority appealed and on 31 January 1980 the
Frankfurt Appeal Court (Oberlandesgericht) quashed the lower court's
decision on this point. It decided that the proceedings be opened in
the Assize Court in accordance with the terms of the indictment. In
its view, there was sufficient evidence to support a finding that the
applicant had acted with recklessness (bedingter Vorsatz) as to
whether death occurred and accordingly had committed the offence of
attempted murder.
2. The trial in the Assize Court
13. The hearings in the Assize Court began on 28 April 1980.
After Mr Colak had been asked for various personal details, the public
prosecutor read out the charges (Anklagesatz; see paragraph 11 above)
as they were set out in the indictment (Article 243 of the Code of
Criminal Procedure).
14. At the hearing on 5 May, the Assize Court informed the
applicant, and his defence counsel (Article 265 of the Code of
Criminal Procedure), that there was a possibility of his being
convicted of causing grievous bodily harm rather than of attempted
murder. According to the record of the hearing, the accused and his
defence counsel had the opportunity to prepare their defence in the
light of this indication, which did not evoke any response.
Article 265 of the Code of Criminal Procedure provides as follows:
"1. The accused may not be convicted under a provision other than
that referred to in the indictment retained by the court, without
first having been informed of any alteration in the legal
classification of the charges and having had the opportunity to defend
himself.
...
3. The hearing must be adjourned at the accused's request if he
alleges that he has been unable to prepare his defence sufficiently
and contests new facts which have emerged making possible the
application of a provision other than that referred to in the
indictment retained by the court, allowing for a heavier penalty.
4. The court shall also adjourn the hearing at the request of a party
or of its own motion if it considers this step to be appropriate in
order to enable the prosecution or the defence to prepare themselves
sufficiently in the light of the new state of affairs.
..."
Under German law, an indication given pursuant to the above-mentioned
Article makes possible a conviction on the basis either of the
original indictment or of the new classification of the facts alleged.
Where a court has expressly ruled out charges initially brought, if it
intends to revert to them, it must make a further statement to this
effect (judgment of the Federal Court of Justice - Bundesgerichtshof -
19 July 1972, Monatsschrift für Deutches Recht 1972, p. 925).
15. The hearing was adjourned on 13 May 1980 because the victim,
who was the main witness, had failed to appear. The same day Mr Colak
was released on bail of 40,000 DM.
16. A new hearing opened on 15 January 1981. The Assize Court,
whose composition had changed in the meantime, asked the accused for
various personal details. The prosecution then, again, recited the
charges preferred on 13 October 1979 (see paragraphs 11 and 13 above).
17. The following day the Assize Court referred again to the
alternative possibility that Mr Colak might be convicted of causing
grievous bodily harm and gave him the opportunity to prepare his
defence accordingly.
The applicant claims that, shortly afterwards, Mr Rosenberg, his
counsel, had a conversation with the President of the Assize Court
outside the courtroom. He asserts that the President stated as
follows:
"You need not worry. Now the court has indicated that a conviction
for grievous bodily harm is possible you can proceed on the assumption
that any conviction will indeed only be on that basis. The Chamber
will not change its views. If it does however, we will inform you in
good time."
("Sie brauchen sich keine Sorgen zu machen. Nach dem Hinweis auf die
mögliche Verurteilung wegen gefährlicher Körperverletzung können Sie
davon ausgehen, dass auch nur insoweit die Verurteilung in Betracht
kommt. Die Kammer dreht sich nicht. Sollte die Kammer sich dennoch
drehen, sagen wir Ihnen rechtzeitig Bescheid.")
The Government dispute this allegation.
18. At the end of the hearing on 23 January 1981, the public
prosecutor took the view that it was impossible to impute to Mr Colak
an intention to kill and that his state of intoxication at the
material time justified a finding of diminished responsibility under
the criminal law. He called for a sentence of three years'
imprisonment for causing grievous bodily harm.
Defence counsel put forward the theory that the victim had been
wounded by a third party. If, however, the wound had really been
caused by the applicant, his responsibility was, in counsel's
submission, diminished and he deserved at most a conviction for
drunkenness (Article 330a of the Criminal Code).
19. At the hearing on 10 February 1981 the Assize Court, basing
its decision principally on the victim's testimony, found the
applicant guilty of attempted murder and sentenced him to five years'
imprisonment.
In its view, the applicant had indeed been reckless as to whether
death occurred. He must have realised that a knife thrust to the
upper part of the abdomen with a blade as long as a hand was capable
of killing. The court however recognised that his responsibility under
the criminal law was considerably diminished on account, inter alia,
of the alcohol which he had consumed.
20. The same day Mr Colak was again remanded in custody under the
detention order of 29 May 1979 (see paragraph 10 above). He appealed
against the order remanding him in custody, but his appeal was
dismissed by the Frankfurt Court of Appeal on 6 March 1981, inter
alia, on the following grounds:
"It seems likely that in these proceedings to date the accused has
assumed that the probable legal consequences of his trial would be
less serious than those which have ensued from ... the judgment of the
[Assize Court], in view of the statements made by that court in
accordance with Article 265 of the Code of Criminal Procedure at both
stages of the trial proceedings to the effect that a conviction under
Article 223a of the Criminal Code might also be possible, and,
further, in view of the fact that the adjudicating chamber had
originally refused the appellant's committal for trial on a charge of
attempted murder ... . The applicant was granted bail undoubtedly
because the [Assize Court] considered a conviction for causing
grievous bodily harm to be a serious possibility. When it had heard
the evidence, its assessment of the legal position changed."
3. The appeal to the Federal Court of Justice (Revision)
21. On 19 May 1981, Mr Colak appealed on a point of law to the
Federal Court of Justice. He complained inter alia that, despite the
assurances (Zusage) of the President of the Assize Court, he had not
been informed of the change in the Court's views regarding the legal
classification of the facts alleged (see paragraph 17 above). He
relied on a breach of Article 265 of the Code of Criminal Procedure
(see paragraph 14 above) and of paragraph 1 of Article 6 (art. 6-1)
of the Convention.
22. On 19 June 1981 the President of the Assize Court issued a
formal statement (dienstliche Erklärung) concerning his alleged
conversation with the applicant's counsel (see paragraph 17 above).
The statement was worded as follows:
"I no longer recall details of conversations with defence counsel in
the corridor."
("Einzelheiten an Flurgespräche mit dem Verteidiger sind mir nicht
mehr in Erinnerung.")
On 4 July 1984, after the applicant's application had been lodged with
the Commission, the President of the Assize Court repeated this
statement in the following terms:
"In connection with the above-mentioned case, I no longer have any
recollection of details of conversations with defence counsel held
outside the courtroom, as to where or when such conversations took
place and what was said."
("In der vorbezeichneten Sache kann ich mich an Einzelheiten über
Gespräche mit dem Verteidiger ausserhalb der Hauptverhandlung nach
Ort, Zeit und Inhalt nicht mehr erinnern.")
23. On 1 December, the Federal Public Prosecutor
(Generalbundesanwalt) of the Federal Court of Justice submitted that
the appeal should be dismissed.
He pointed out, inter alia, that the trial had been conducted on the
basis of an indictment for attempted murder. It was no doubt true
that the Assize Court had mentioned the possibility of a conviction
for grievous bodily harm, but this in no way precluded it from finding
the accused guilty of the offence with which he was charged in the
indictment. "Assurances" given by the presiding judge could make no
difference. It was for the Assize Court as a whole, and it alone, to
determine, following its deliberations, whether the first or the
second of the two offences was established.
24. On 10 February 1982, the Federal Court of Justice declared the
appeal unfounded. It stated merely that, having regard to the grounds
relied upon, the contested judgment disclosed no error of law
prejudicial to Mr Colak.
4. The complaint to the Federal Constitutional Court
(Bundesverfassungsgericht)
25. On 25 February 1982, the applicant lodged a complaint with the
Federal Constitutional Court. He relied on Article 20 para. 3 (the
principle of the rule of law) and Article 103 (the right to be heard
by a court - rechtliches Gehör) of the Basic Law.
He argued inter alia that the assurances given by the President of the
Assize Court ought to have been regarded as binding on that court. By
failing to advise him of its change of position regarding the legal
classification of the facts, it had, in his view, infringed the rights
of the defence, thus depriving him of a fair trial.
26. On 17 May 1982, the Constitutional Court, sitting as a
committee of three judges, found that the appeal did not offer
sufficient prospects of success, and, accordingly, that it should not
be entertained. It based its decision on the following grounds:
"There is some doubt as to the admissibility of the appeal since the
appellant has not stated how he would have conducted his defence
differently if he had been expressly informed of the possibility that
he might be convicted of attempted murder ..., but it is not necessary
to consider this question in greater depth because the appeal does not
have sufficient prospects of success on its merits.
The criminal proceedings concerning the appellant are not open to
criticism under constitutional law. The appellant could not rely on
his not being convicted of attempted murder. It makes no difference
in this respect that the Regional Court had at first found that there
were insufficient grounds for suspecting him of having had the
intention to kill and had, for this reason, refused to refer the case
to the Assize Court, or that he had been told that he might be
convicted of causing grievous bodily harm rather than of attempted
murder, or, further, that in his oral submissions the public
prosecutor had sought a conviction for causing grievous bodily harm.
On the contrary, in view of the indictment for attempted murder, which
was retained by the Court of Appeal, the applicant had to take into
account in his defence the possibility of such a conviction.
The position could not be any different even if it were true, as the
appellant claims, that the President of the Court assured defence
counsel, outside the courtroom, that he could proceed on the
assumption that the Assize Court was thinking in terms merely of a
conviction for causing grievous bodily harm, and that, if it changed
its views, he would be advised thereof in good time. A 'legitimate
expectation' (Vertrauenstatbestand) could be created by a court only
if a statement were made during the hearing or, otherwise, only on
behalf of the whole court and to all the parties. The appellant has
not claimed that this was the case. He refers merely to an informal
conversation between his lawyer and the President of the Court in the
course of which the latter disclosed the Criminal Chamber's
provisional assessment of the facts and the law, but without
suggesting that he had been authorised to do so by the chamber. The
law of criminal procedure makes no provision for an informal promise
of this nature. In the absence of formal confirmation by the court,
and this ought to have been requested by a defence lawyer carrying out
his brief conscientiously if he wished to alter his pleadings in
consequence, such a promise is incapable of generating a 'legitimate
expectation' which would be binding on the court by virtue of the
applicant's right to a fair criminal trial.
It is therefore unnecessary to take evidence regarding the
appellant's allegation, the accuracy of which may perhaps be
inferred from the formal statement by the President of the Criminal
Chamber in the proceedings before the Federal Court of Justice.
The fact that in the circumstances of the case the failure to abide
by 'assurances', or indeed such unauthorised assurances themselves,
may give rise to concern from the point of view of disciplinary
regulations is not sufficient to establish a violation of the
Constitution in the criminal proceedings against the applicant."
PROCEEDINGS BEFORE THE COMMISSION
27. In his application of 7 June 1982 to the Commission
(no. 9999/82), Mr Colak complained of the proceedings leading to his
conviction. In his view, they had been conducted in breach of
Article 6 para. 1 (art. 6-1) of the Convention.
The Commission declared the application admissible on 9 December 1985.
In its report of 6 October 1987 (Article 31) (art. 31), it concluded,
by ten votes to two, that there had been no breach of the Article in
question. The full text of the Commission's opinion and of the
separate opinion accompanying it is reproduced as an annex to this
judgment.
FINAL SUBMISSIONS TO THE COURT
28. At the hearing on 25 October 1988, the Government requested
the Court to "find that there is no breach of Article 6 para. 1
(art. 6-1) of the Convention".
AS TO THE LAW
29. The applicant claimed that he had not had a fair trial.
According to him, he had been convicted, without notice, of attempted
murder, despite the assurances which his lawyer had allegedly received
from the President of the Assize Court, on which he had based his
defence. In the applicant's view, this constituted a failure to
comply with the requirements of Article 6 para. 1 (art. 6-1) which
provides as follows:
"In the determination ... of any criminal charge against him, everyone
is entitled to a fair ... hearing ... by [a] ... tribunal ... ."
The Government denied that the President of the Assize Court had
discussed the case with the accused's lawyer outside the courtroom.
Even if such a conversation had taken place, its scope could not have
been that alleged by Mr Colak. In any case, there would have been no
breach of Article 6 para. 1 (art. 6-1).
The Commission likewise found no breach. Five of its members based
their view on the lack of sufficient evidence as to the disputed
conversation. Five others considered that in any case the applicant
could not have had a legitimate expectation that the Assize Court
would try him solely in relation to the charge of causing grievous
bodily harm.
30. The Court notes in the first place that it is impossible to
establish with certainty whether the conversation alleged by the
applicant took place. Neither the formal statements made by the
President of the Assize Court on 19 June 1981 and 4 July 1984 (see
paragraph 22 above), nor any other items of evidence adduced, provide
sufficient information to enable it to rule on this disputed issue of
fact. However, the wording of these statements does not exclude the
possibility that the President of the Assize Court did in fact have a
conversation with Mr Rosenberg outside the courtroom concerning the
legal classification of the acts alleged against Mr Colak. This
possibility was moreover mentioned by the Federal Constitutional Court
in its judgment of 17 May 1982 (see paragraph 26 above). But even if
such a conversation did take place, the Court would have no means of
ascertaining exactly what was said.
31. Even if the President of the Assize Court did make the
statements alleged by Mr Rosenberg, he could not speak on behalf of
his fellow judges.
According to the terms of the written prosecution submissions read out
at the opening of the hearings in the Assize Court (see paragraph 16
above), Mr Colak was accused of attempted murder. At the hearing on
16 January 1981, the court did not exclude the possibility of a
conviction on this charge. It merely pointed out, as it was obliged
to do by law in the circumstances of the case, that a conviction for
causing grievous bodily harm was also a possibility (see paragraphs 14
and 17 above). Neither at this point, nor at any other, did the
Assize Court suggest that it was no longer intending to deal with the
charge of attempted murder.
The applicant's lawyer knew that the Assize Court would make its
ruling after its deliberations, solely on the basis of the issues
raised during the hearings. Accordingly, he should have satisfied
himself that the President's alleged appraisal of the situation did
indeed reflect the views of the court itself. It was open to him to
seek formal confirmation of those views.
32. The Court therefore finds that there has been no violation of
Article 6 para. 1 (art. 6-1).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 6 para. 1 (art. 6-1).
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 6 December 1988.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar