Published on 2 April 2024
FOURTH SECTION
Application no. 25095/23
Christian SCHMID
against Germany
lodged on 14 June 2023
communicated on 12 March 2024
SUBJECT MATTER OF THE CASE
The application concerns the impartiality of the tribunal in criminal proceedings against the applicant.
The applicant worked as an authorised signatory of a German private bank and, from 2007 to 2011, co-signed the bank’s corporate tax returns. The bank was implicated in the so-called “cum-ex” scheme, a large-scale tax fraud scheme by which significant dividend tax refunds were obtained under false pretences. After the “cum-ex” scheme was uncovered, preliminary proceedings for tax evasion were initiated against the applicant.
On 18 March 2020 the Bonn Regional Court sentenced M.S. and N.D., a shareholder and an employee of an asset management company based in the Cayman Islands, for tax evasion and aiding and abetting tax evasion in connection with the “cum-ex” scheme. In its written judgment, the court frequently mentioned the applicant’s role in the offences, referring to him as a “separately prosecuted person” and stating, inter alia, that he had intentionally committed a criminal offence under the Fiscal Code.
On 27 May 2020 the applicant was indicted for tax evasion before the Bonn Regional Court. Two out of the five judges of the competent chamber of the court, namely the presiding judge and the judge rapporteur, had sat in the proceedings against M.S. and N.D. The applicant repeatedly and unsuccessfully lodged requests to have the two judges removed from the bench for fear of bias, arguing that the written judgment against M.S. and N.D. contained statements about his involvement in the offences and that the presiding judge had referred to his personal recollection of the examination of a witness from the previous trial while discussing the testimony of the same witness during the trial against the applicant.
On 1 June 2021 the Bonn Regional Court found the applicant guilty of tax evasion and sentenced him to 5 years and 6 months in prison. The court relied mainly on the statements of M.S. who, after being sentenced, had testified as a witness.
On 6 April 2022 the Federal Court of Justice rejected the applicant’s appeal on points of law.
On 27 January 2023 the Federal Constitutional Court decided not to accept the applicant’s constitutional complaint for adjudication. It found that the domestic courts’ decisions not to remove the two judges from the bench were in line with the well-established case-law of the Federal Court of Justice, according to which the previous involvement of a judge in proceedings concerning the same subject matter alone was not sufficient grounds for objecting to the judge for bias and such fears were only justified in the presence of additional specific circumstances. In so far as the judgment of 18 March 2020 contained findings and a legal assessment concerning the applicant’s involvement in the criminal offences, these statements had been indispensable for the criminal conviction of M.S. and N.D. (2 BvR 1122/22).
The applicant relied upon Article 6 § 1 of the Convention, arguing that he had not been tried by an impartial tribunal. He complained that two of the judges had previously been involved in the proceedings against M.S. and N.D. concerning the same subject matter and that the judgment delivered in those proceedings contained several unnecessary and definitive statements about his role in the offences. He submitted that in the proceedings against him, the judges had not carried out a fresh assessment of his involvement, as shown by the presiding judge’s remark as well as media reports according to which notes taken by the judges during the trial against M.S. and N.D. were freely available to other judges sitting in “cum-ex” cases.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to an impartial tribunal under Article 6 § 1 of the Convention (see Meng v. Germany, no. 1128/17, 16 February 2021; Schwarzenberger v. Germany, no. 75737/01, 10 August 2006; Mucha v. Slovakia, no. 63703/19, 25 November 2021)?