...
THE FACTS
The applicant, Mr Horst Werner Mattick, is a German national who was born in 1945 and is currently detained in the Straubing correctional facility (Justizvollzugsanstalt). He was represented before the Court by Mr O. Schmidl, a lawyer practising in Regensburg.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The preliminary investigations
On 23 November 1998 the applicant was remanded in custody (vorläufig festgenommen) on suspicion of attempted homicide. On 24 November 1998 he was placed in pre-trial detention on the basis of an arrest warrant issued by the Deggendorf District Court on the same day.
On 24 March 1999, at the public prosecutor’s request, W., a physician, gave an initial psychiatric expert opinion on the applicant, stating that the requirements of Article 21 of the German Criminal Code (diminished criminal liability – verminderte Schuldfähigkeit) were met. However, he further stated that the requirements of Article 64 of the Criminal Code (placement in an alcohol detoxification clinic – Unterbringung in einer Entziehungsanstalt) were not fulfilled.
On 20 April 1999 the Deggendorf public prosecutor’s office issued a bill of indictment indicating that, on account of his previous convictions, the applicant met the requirements for placement in compulsory confinement (Sicherungsverwahrung) under Article 66 of the German Criminal Code (see “Relevant domestic law” below).
On 19 May 1999 the applicant’s defence counsel requested access to the applicant’s present and previous case files in order to prepare his defence. He stated that, in view of the applicant’s possible placement in compulsory confinement, it was necessary to have access to the case files relating to his previous convictions. Furthermore, he requested an expert opinion on the question whether the requirements of Article 66 of the Criminal Code regarding compulsory confinement were met in the applicant’s case.
2. The proceedings before the Deggendorf Regional Court
On 17 May 1999 the Deggendorf Regional Court opened the main proceedings (Eröffnung des Hauptverfahrens).
On 26 May 1999 it granted the defence counsel access to the file concerning the present case as well as those concerning two previous convictions. The defence counsel received those files on 2 June 1999.
On 2 June 1999 the Deggendorf Regional Court set the case down for hearing on 1 July 1999 and summoned witnesses and W. to appear on that date.
On 7 June 1999 the public prosecutor’s office asked for an expert opinion on the question whether the requirements of Article 66 of the Criminal Code were met.
On 15 June 1999 the Regional Court requested the case files regarding the applicant’s previous twenty convictions. The court received only eight of these files, five of which contained only the judgments (Strafurteile) or sentence orders (Strafbefehle), but no other documents. The court was unable to obtain the other case files. On the same day the public prosecutor’s office requested a supplementary expert opinion on the question whether the requirements for placement in compulsory confinement were met.
On 21 June 1999 W. submitted his expert opinion to the public prosecutor’s office. On 28 June 1999 the defence counsel received a copy. It comprised only seven pages, two of which were dedicated to the expert’s conclusion that the requirements of Article 66 of the Criminal Code were met. On the same day, 28 June 1999, the applicant’s defence counsel also received the case files relating to the eight previous convictions.
(a) The first hearing (1 July 1999)
On 1 July 1999 the defence counsel requested the adjournment of the trial (Aussetzung des Verfahrens), relying on Article 6 § 3 (b) of the Convention. He argued that he had not had enough time to prepare the applicant’s defence. The court rejected his request, stating that the defence counsel had known since the bill of indictment had been served that the issue of compulsory confinement would form the subject matter of the trial. Furthermore, it observed that there had been no change of circumstances (Sachlage) that might have justified an adjournment in accordance with Article 265, paragraph (4), of the German Code of Criminal Procedure. It also pointed out that the expert opinion had been ordered at the applicant’s request. The court further noted that the expert’s written submissions had been much less important than his oral remarks during the hearing. The applicant’s defence counsel also requested the taking of further evidence.
(b) The second hearing (8 July 1999)
The trial was resumed on 8 July 1999. W. delivered his expert opinion and was questioned by the applicant’s defence counsel. On a motion by the defence counsel, the court ordered a supplementary psychological expert assessment, to be carried out by a second expert, T.
(c) The third hearing (13 July 1999)
On 13 July 1999 the court ordered the two experts to deliver their opinions on 21 July 1999. T. conducted a psychological assessment of the applicant on 14 July 1999 and produced his written opinion on 15 July 1999.
(d) The fourth and last hearing (21 July 1999)
During the last hearing on 21 July 1999, T. gave an oral presentation of his psychological assessment. W. then made supplementary statements regarding his own opinion and T.’s assessment. The applicant’s defence counsel subsequently requested an additional expert opinion. His motion was five pages long and included comments on W.’s opinion. However, the court rejected the request as unnecessary, as it considered the expert’s opinion convincing.
The court then closed the procedure for taking evidence and later delivered its judgment. It convicted the applicant of attempted homicide and of having caused grievous bodily harm by one and the same act (versuchter Totschlag in Tateinheit mit gefährlicher Körperverletzung) and sentenced him to five years and six months’ imprisonment. Moreover, the applicant was placed in compulsory confinement. The court stated that the requirements of Article 66 of the German Criminal Code were met, taking into consideration the applicant’s present and previous convictions. It concluded that the applicant had to be considered dangerous and that placing him in compulsory confinement was a proportionate measure.
3. The decision of the Federal Court of Justice
On 7 December 1999 the Federal Court of Justice dismissed an appeal on points of law by the applicant.
4. The decision of the Federal Constitutional Court
On 14 February 2000 the Federal Constitutional Court refused to entertain a constitutional appeal by the applicant.
B. Relevant domestic law
The Dangerous Habitual Offenders Act (Gesetz gegen gefährliche Gewohnheitsverbrecher), which came into force on 24 November 1933, provides for certain correctional and preventive measures (Maβregeln der Besserung und der Sicherung). These measures are not designed as punishment, but rather as an attempt to prevent future offences by reforming the offenders and thus preserving public order.
The measures are governed by Articles 61 et seq. of the Criminal Code. They include placement in a psychiatric hospital, placement in a detoxification clinic (Entziehungsanstalt), compulsory confinement, supervision of conduct (Führungsaufsicht), withdrawal of driving licence and prohibition on practising a certain profession. Article 62 provides that the measure has to be proportionate to the offence committed and to the danger presented by the offender. Paragraph (2) of Article 66 states that an offender may be placed in compulsory confinement if he has committed three intentional offences each of which is punishable by at least one year’s imprisonment and if he has been sentenced to at least three years’ imprisonment for one or more of these acts and poses a threat to public order.
Article 66 reads as follows:
“(1) If a person is convicted of an intentional offence and is sentenced to at least two years’ imprisonment, the court shall place the offender in compulsory confinement in addition to the sentence, if
1. the offender has already been sentenced twice to at least one year’s imprisonment for intentional offences before committing the new offence;
2. the offender has served a prison sentence of at least two years for those previous convictions or has been detained as a correctional or preventive measure; and
3. an assessment of the offender and his offences shows that he poses a threat to the general public owing to his inclination to commit serious offences, in particular those which inflict severe psychological and physical damage on the victims or which cause severe economic damage.
(2) If a person has committed three intentional offences, each of which is punishable by at least one year’s imprisonment, and has been sentenced to at least three years’ imprisonment for one or more of these offences, the court may, under the provision indicated in paragraph (1), point 3, above, place the applicant in compulsory confinement in addition to the sentence even in the absence of a previous conviction or deprivation of liberty (paragraph (1), points 1 and 2, above). ...”
Paragraph (1) of Article 67c reads as follows:
“If a prison sentence is served before placement in compulsory confinement, the court shall examine, towards the end of the sentence being served, whether the aim of the measure still requires placement in compulsory confinement.”
Former Article 67d limited the length of compulsory confinement to ten years. It was amended by the Sixth Criminal Code Amendment Act (Sechstes Gesetz zur Reform des Strafrechts), which came into force on 26 January 1998, and the new Sexual and Other Dangerous Offences Act (Gesetz zur Bekämpfung von Sexualdelikten und anderen gefährlichen Straftaten).
Paragraph (3) of the new Article 67d reads as follows:
“After a period of ten years in compulsory confinement has been completed, the court shall declare the measure to be terminated, as long as there is no danger that the detainee will, owing to his inclination to crime, commit further serious offences which would risk inflicting severe psychological and physical damage on the victims. If the measure is considered to have been terminated, the detainee shall be placed under supervision of conduct.”
Section 1a of the Introductory Act to the Criminal Code states that the new Article 67d applies without any temporal limitations, and hence retrospectively. Article 67e states that the court may examine of its own motion at any given time whether the execution of a measure of compulsory confinement could be suspended on probation, but it is required to do so at least every two years.
COMPLAINT
The applicant complained under Article 6 § 3 (b) of the Convention that his defence counsel had not had enough time to prepare his defence. His counsel had not received the psychological expert opinion and eight of the case files until 28 June 1999, whereas the first hearing had begun on 1 July 1999.
THE LAW
The applicant complained that the lack of sufficient time for the preparation of his defence amounted to a breach of Article 6 § 3 (b) of the Convention, which provides:
“3. Everyone charged with a criminal offence has the following minimum rights:
...
(b) to have adequate time and facilities for the preparation of his defence;
...”
The Government contested this view. Firstly, they drew the Court’s attention to the fact that the bill of indictment had already concluded that the requirements for compulsory confinement were met. Thus, when he had received the case file on 2 June 1999, the applicant had already known that his compulsory confinement would form the subject matter of the trial. The Government further stated that the written expert opinion of 21 June 1999 had merely served as a preparation for the hearing and that only the oral expert opinion had been decisive for the court. They also argued that the written opinion itself was short and was only based on the content of the case file and the initial expert opinion of 24 March 1999. They pointed out that the trial had lasted until 21 July and that the applicant’s defence counsel had in fact made use of that time. In the Government’s submission, this was evidenced by the defence counsel’s two motions of 8 and 21 July 1999 in which he had requested an additional expert opinion. The Government stated that the second motion in particular had been comprehensively substantiated and thus showed that the applicant’s counsel had had sufficient time to prepare his defence.
With regard to the case files, the Government argued that the applicant’s defence counsel had received the file on the present case and two files concerning previous convictions on 2 June 1999. They also stated that five of the remaining eight case files which the defence counsel had received on 28 June 1999 had contained only the judgments and no other documents. The Government further explained that the applicant’s previous convictions had only become relevant with regard to the experts’ oral opinions presented on 8 and 21 July 1999. They further stated that the oral procedure had been interrupted several times and had lasted over three weeks, with four days of hearings, hence providing the defence counsel with additional time.
The applicant replied that the receipt of the written expert opinion two working days before the commencement of the trial had not allowed enough time to have the expert opinion checked by an expert of his defence counsel’s choice. In his opinion, this would have been advisable, as the expert had been chosen by the public prosecutor’s office. Even if this had not been possible, his defence counsel would, at the very least, have needed sufficient time to familiarise himself with its content. In this connection, he pointed out that his defence counsel did not have sufficient medical expert knowledge to deal with the expert opinion himself, and stressed that compulsory confinement was very rarely imposed by German courts.
Moreover, the applicant contended that the fact that his defence counsel had actually made use of the time between the hearings to prepare the defence was irrelevant, as Article 6 § 3 (b) dealt with the preparation of the trial before it commenced. Thus, the time between the different hearings could not be interpreted as serving for the preparation of the trial itself. The applicant stated that his defence counsel had actually filed the motions for additional expert opinions in order to delay the proceedings and gain additional time. He pointed out that the Regional Court had originally scheduled only one hearing, on 1 July 1999, and that it was only as a result of his defence counsel’s additional motions that the trial had lasted until 21 July 1999. However, in his submission, this supplementary time had not been sufficient.
The Court reiterates that Article 6 § 3 (b) of the Convention concerns two elements of a proper defence, namely the question of facilities and that of time. The question of time cannot be addressed in abstracto, but only in relation to the circumstances of the case (see Mortensen v. Denmark, no. 24867/94, Commission decision of 15 May 1996, unreported, and Hayward v. Sweden, no. 14106/88, Commission decision of 6 December 1991, unreported). The Court further reiterates that when determining the length of the preparatory time needed, it takes into account not only the complexity of the case, but also the usual workload of a legal counsel, who certainly cannot be expected to change his whole programme in order to devote all his time to one case. However, it is not unreasonable to require a defence lawyer to arrange for at least some shift in the emphasis of his work if this is necessary in view of the special urgency of a particular case (see, mutatis mutandis, X and Y v. Austria, no. 7909/74, Commission decision of 12 October 1978, Decisions and Reports 15, p. 163).
The Court acknowledges that, when a defendant faces compulsory confinement, the defence lawyer not only has to deal with the current charges but also has to examine previous convictions and a psychological expert opinion. The lawyer therefore has to exercise the utmost diligence and needs an appropriate amount of time.
The Court observes that in the present case the applicant’s defence counsel received the case file for the proceedings pending before the Deggendorf Regional Court on 2 June 1999. On the same day he also received the case files regarding two of the applicant’s previous convictions. Thus, he had approximately one month at his disposal before the commencement of the trial. This period was sufficient for him to familiarise himself with those case files.
As regards the receipt of W.’s expert opinion on 28 June 1999, three days before the commencement of the trial, the Court observes that that opinion served as preparation for questioning the expert in court on 8 July 1999. Hence the defence counsel had an additional week to prepare for the expert’s questioning. Furthermore, both the experts T. and W. were examined again on 21 July 1999. Thus, the applicant had up to two additional weeks to prepare for the experts’ final questioning on 21 July 1999.
As regards the receipt of the remaining case files on 28 June 1999, three days before the commencement of the trial, the Court notes that the issue of compulsory confinement, for which the number and the nature of the applicant’s previous convictions were crucial, was discussed on 8 and 21 July 1999. Therefore, the applicant’s defence counsel had additional time to study the relevant case files. In this connection, the Court points out that the trial lasted until 21 July 1999, because the defence counsel had delayed it in order to gain time. Contrary to the applicant’s opinion, the Court finds that the time between the hearings counts as preparatory time. Article 6 § 3 (b) of the Convention does not require the preparation of a trial lasting over a certain period of time to be completed before the first hearing. Rather, it is the amount of time actually available which counts towards the preparatory time. It could not be otherwise, since the course of trials cannot be fully charted in advance and may reveal elements which have not hitherto come to light and which require further preparation by the parties. Taking into account the defence counsel’s general duty to focus on an urgent case, the Court concludes that the time between 28 June and 1 July 1999 and the supplementary time until 21 July 1999 were amply sufficient for the examination of the written expert opinion and the remaining case files. The Court therefore finds that there is no appearance of a violation of Article 6 § 3 (b) of the Convention. Accordingly, the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Full & Egal Universal Law Academy