AS TO THE ADMISSIBILITY OF
Application No. 28899/95
by Hans-Jürgen STIERINGER
against Germany
The European Commission of Human Rights sitting in private on
25 November 1996, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H. DANELIUS
F. MARTINEZ
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 August 1994 by
Hans-Jürgen STIERINGER against Germany and registered on 9 October 1995
under file No. 28899/95;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 21 October 1996 not to communicate
the applicant's complaint about the alledged lack of independence
of the probationary judges, sitting at the first instance court;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1931, is a German national and resident
in Bremen. He is a lawyer and notary by profession.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1991 criminal proceedings were started against the applicant
on the suspicion of having committed fraudulent conversion. In these
proceedings the applicant was assisted by defence counsel.
On 19 October 1992 the applicant was taken into detention on
remand on the basis of an arrest warrant issued by the Berlin-
Tiergarten District Court (Amtsgericht) on 13 October 1992.
On 16 February 1993 the Berlin Public Prosecutor's Office drew
up the bill of indictment against the applicant and a co-accused.
In March 1993 the applicant unsuccessfully requested that various
private files, allegedly needed for the preparation of his trial, be
made available to him for consultation in prison.
On 8 June 1993 the 19th Extended Criminal Chamber (Große
Strafkammer) of the Berlin Regional Court (Landgericht), sitting as
Economic Crimes Chamber (Wirtschaftsstrafkammer) and composed of three
judges and two lay assessors (Schöffen), committed the applicant and
the co-accused for trial.
On 30 June 1993 the Presiding Committee (Präsidium) of the Berlin
Regional Court, in the exercise of its functions under S. 21e of the
Courts Organisation Act (Gerichtsverfassungsgesetz), set up an
auxiliary criminal chamber (Hilfsstrafkammer) for the purpose of
relieving the 19th Criminal Chamber which, due to its workload, could
not deal with urgent cases, such as the case of the applicant who was
detained on remand.
The 19b Auxiliary Criminal Chamber was composed of the Presiding
Judge le Viseur and Judges Garz-Holzmann and Appelt-Kurlemann on the
understanding that their functions in the 5th Criminal Chamber had
priority. On 5 July 1993 the Committee of the Berlin Regional Court
decided that Judge Appelt-Kurlemann who was to leave as from 15 July,
was replaced by Judge von der Decken, who had the status of a
probationary judge (Richter auf Probe). On 11 October 1993 the
Committee of the Berlin Regional Court, having regard to the heavy
workload of Judge Garz-Holzmann following her appointment as Presiding
Judge of another Criminal Chamber and the priority of her duties in
that Chamber, decided that Judge Kramer, who had the status of a
probationary judge, was assigned as further Judge to the 19b Auxiliary
Criminal Chamber.
On 2 September 1993 the Presiding Judge of the 19b Auxiliary
Criminal Chamber fixed 1 November as date for the opening of the trial
hearings in the applicant's case. The trial was to be continued on the
ensuing Thursdays and Mondays.
On 1 November 1993 the trial against the applicant and the co-
accused opened before the 19b Auxiliary Criminal Chamber of the Berlin
Regional Court, composed of the Presiding Judge le Viseur, Judges von
der Decken and Kramer, as well as Ms. Heiber and Mr. Glässer as lay
assessors. Ms. Heiber was sitting as principal lay assessor
(Hauptschöffe), drawn by lot for the 19th Extended Criminal Chamber's
session day of 2 November 1993. Mr. Glässer, initially called as
substitute lay assessor (Ergänzungsschöffe), had replaced the second
principal lay assessor, who was prevented from sitting.
On 4 November 1993 the applicant complained about the composition
of the 19b Auxiliary Criminal Chamber, namely about the participation
of two probationary judges as well as the participation of Ms. Heiber
and Mr. Glässer as lay assessors.
At the hearing of 8 November 1993, the 19b Auxiliary Criminal
Chamber dismissed the applicant's complaints.
The Chamber found in particular that S. 29 of the Law on the
Judiciary, as amended by the Act on the Relief of the Administration
of Justice, allowing for the participation of two probationary judges
in judicial decisions, could not be objected to from a constitutional
point of view nor under the European Convention on Human Rights. The
Chamber observed that S. 29, as amended, took account of the
circumstances following the German Unification, when the number of
persons brought within the jurisdiction of the courts had considerably
increased while the judiciary had not changed. Moreover, according to
the Chamber, it was not feasible to assign probationary judges to the
criminal chambers on the basis of fixed quotas. The Chamber further
dismissed the applicant's objections as to the participation of the lay
assessors, drawn by lot to sit on 1 November 1993. It considered that
the Presiding Judge had brought the regular session of 2 November 1993
forward in time (Terminvorverlegung) to 1 November 1993.
Judge Kramer was appointed as permanent judge in the course of
the applicant's trial, which continued for twenty-three days until
7 February 1994.
On 7 February 1994 the applicant was convicted of fraudulent
conversion and sentenced to three years and six months' imprisonment.
The Regional Court found that the applicant, as member of the
supervisory board of a building company, had fraudulently arranged for
the payment of DM 11.6 million to a third person.
On 14 July 1995 the Federal Court of Justice (Bundesgerichtshof)
dismissed the applicant's appeal on points of law (Revision). The
Federal Court of Justice found that the review of the judgment of
7 February 1994 in the light of the applicant's appeal submissions had
not disclosed any error of law.
In its decision, the Federal Court of Justice confirmed its case-
law according to which the independence of probationary judges was
sufficiently ensured under SS. 12, 22 and 78 (4c) of the Law on the
Judiciary. Accordingly, S. 29 of the Law on the Judiciary, as amended,
which temporarily allowed for the sitting of two probationary judges
in a bench, could not be objected to from a constitutional point of
view. The requirements established in the case-law of the Federal
Constitutional Court (Bundesverfassungsgericht), namely the existence
of extraordinary circumstances and imperative necessities in the
administration of justice, were met in the transitional period
following the German unification. Furthermore, taking into account
that Judge Kramer had already been nominated by the Committee for the
Selection of Judges (Richterwahlausschuß) before the opening of the
trial against the applicant and that her appointment had been imminent
- she had been appointed after the seventh day of trial hearings, the
decision on the composition of the 19b Auxiliary Criminal Chamber did
not disclose any appearance of arbitrariness.
The Federal Court of Justice next examined the applicant's
complaint about the composition of the 19b Auxiliary Criminal Chamber
as far as the lay assessors were concerned. According to the
applicant, the trial against him had started with an extraordinary
session of the 19b Auxiliary Criminal Chamber, as the 19th Extended
Criminal Chamber had been in session on 2 November 1993. Accordingly,
auxiliary lay assessors should have participated, or, in the
alternative, the principal lay assessors drawn by lot for the
19th Extended Criminal Chamber's next regular session.
The Federal Court of Justice noted that the 19b Auxiliary
Criminal Chamber had been set up on 30 June 1993 in order to relieve
the regular 19th Criminal Chamber of the Berlin Regional Court. The
19b Auxiliary Criminal Chamber held its sessions on Mondays and
Thursdays, whereas the 19th Criminal Chamber held its regular sessions
on Tuesdays and Thursdays. On 2 September 1993 the Presiding Judge of
the 19b Auxiliary Criminal Chamber had fixed the date of 1 November
1993 for the opening of the trial, which was to be continued on the
following Thursdays and Mondays. The principal lay assessors drawn by
lot for the 19th Criminal Chamber's regular session of 2 November 1993
were called to sit at the applicant's trial. On that day, the
19th Extended Criminal Chamber had continued trial hearings
(Fortsetzungsverhandlungen) in two other complex cases.
The Federal Court of Justice considered that in these
circumstances the 19b Auxiliary Criminal Chamber's session of
1 November 1993 was not an extraordinary session, but a regular session
brought forward in time, and the participation of the lay assessors
could not be objected to.
In this respect, the Federal Court of Justice recalled its
constant jurisprudence regarding regular criminal chambers, according
to which extraordinary sessions with auxiliary lay assessors, pursuant
to S. 47 of the Courts Organisation Act, presupposed a need to hold
sessions in addition to the regular sessions. However, when the
presiding judge of a criminal chamber fixed another date than a regular
session for the opening of trial hearings, while the regular session
was reserved for other purposes, the trial had opened at the regular
session, "brought forward or put back in time" ("Verlegung nach vorne
oder nach hinten"). Consequently, the principal lay assessors drawn
by lot for the regular session had to sit at the trial hearings
concerned. Having regard to the constitutional right not to be removed
from the jurisdiction of the lawful judge (gesetzlicher Richter), the
participation of the principal lay assessors determined in advance
pursuant to S. 45 of the Courts Organisation Act had priority over the
recourse to auxiliary lay assessors. The presiding judge, fixing
hearing dates after due assessment of all circumstances (nach
pflichtgemäßem Ermessen), had first to consider the possibility of
advancing or postponing a regular session, thereby leaving the
composition of the chamber unchanged. An extraordinary session could
only be held, when no early date for such postponement was available.
Subsequent changes of the circumstances underlying such decisions were
irrelevant.
The Federal Court of Justice next addressed the question to what
extent these principles also applied to auxiliary criminal chambers.
In this respect it observed that the setting up of an auxiliary
criminal chamber to relieve a regular criminal chamber was a means of
regulating the organisation of work in cases where judges were
prevented from attending trial hearings. Thus an auxiliary criminal
chamber substituted for the regular criminal chamber in cases which the
latter was not able to deal with. An auxiliary criminal chamber could
not, therefore, have its own principal lay assessors; and session days
were assigned to auxiliary criminal chambers merely for practical
purposes, in particular the organisation of administrative and
technical matters regarding hearings. Rather, the principal lay
assessors drawn by lot for particular sessions of the regular criminal
chamber, had, ipso jure, to attend sessions of the auxiliary criminal
chamber if they were not needed by the regular criminal chamber. When
the regular criminal chamber, on the same session day, continued trial
hearings in another case, started at an earlier date and with other lay
assessors, there was no conflict between the two criminal chambers
which would require the auxiliary criminal chamber to hold an
extraordinary hearing with auxiliary lay assessors. Only if, at the
time of fixing the date for the opening of trial hearings before the
auxiliary criminal chamber, had these lay assessors already been called
to sit at a trial hearing opening before the regular criminal chamber,
did the session fixed by the presiding judge of the auxiliary criminal
chamber constitute an extraordinary session, pursuant to S. 47 of the
Courts Organisation Act.
Moreover, apart from considerations of transparency and
practicability, the close link between the auxiliary criminal chamber
and the principal lay assessors of the regular criminal chamber, for
which the auxiliary criminal chamber was a substitute in dealing with
its cases, required that both criminal chambers applied the same
principles regarding the possibility of advancing or postponing a
regular session and the fixing of extraordinary sessions, in order not
to remove the accused from the jurisdiction of the lawful judge.
Furthermore, the Federal Court of Justice, deviating from one of
its earlier decisions, considered that when a regular session, brought
forward in time, was fixed as the date for the opening of trial
hearings before an auxiliary criminal chamber, the question of whether
the hearings were continued at a regular session was irrelevant.
The Federal Court of Justice concluded that when the trial
hearings before an auxiliary criminal chamber did not open on the date
of a regular session of the regular criminal chamber, the closest
regular session had to be brought forward or put back. However, such
practice was only reasonable to the extent that regular sessions were
postponed to the very day preceding or following a regular session.
The Federal Court of Justice also dismissed the applicant's
procedural complaints concerning the taking of evidence.
The decision was served on 21 August 1995.
On 2 September 1995 a panel of three judges of the Federal
Constitutional Court refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde) of 24 August 1995.
B. Relevant domestic law and practice
a. The internal organisation of courts
According to S. 21e of the Courts Organisation Act
(Gerichtsverfassungsgesetz), the presiding committee of a court
determines, before the beginning of the relevant year, inter alia, the
composition of the benches, the replacement of judges and the
allocation of work; these rules can exceptionally be changed during the
year concerned, if this is necessary inter alia in view of the
excessive workload of a judge or bench.
b. The lay assessors
The rules regarding lay assessors sitting in criminal chambers
at regional courts are laid down in S. 77, in conjunction with SS. 30
to 57 of the Courts Organisation Act.
At a trial, lay assessors exercise the same functions as a judge.
The office of a lay assessor is an honorary one; the qualifications for
this office are laid down in SS. 31 to 35. Principal lay assessors and
auxiliary lay assessors (Hilfsschöffen) are elected for a period of
four years in accordance with a procedure laid down in SS. 36 to 42.
The names of principal lay assessors and of auxiliary lay assessors are
recorded in separate lists.
Pursuant to S. 45, the principal lay assessors sitting with the
professional judges of a criminal chamber in a particular case are
appointed to participate at the chamber's regular sessions (ordentliche
Sitzungen), i.e. its weekly session days, which are fixed in advance
for a period of twelve months. The order in which principal lay
assessors participate in a criminal chamber's regular sessions during
this period is drawn by lot at a public hearing. The order in which
auxiliary lay assessors replace principal lay assessors prevented from
exercising their office is also decided by lot. Auxiliary lay
assessors are called upon, inter alia, when cases require the fixing
of extraordinary sessions (außerordentliche Sitzungen), pursuant to
S. 47. A presiding judge may also call upon auxiliary lay assessors
to attend lengthy trial hearings as substitute lay assessors for the
purpose of replacing, if necessary, a principal lay assessor prevented
from sitting (SS. 48, 192).
c. The judiciary
The general rules governing the judiciary are laid down in the
Law on the Judiciary (Richtergesetz).
Appointment as a permanent judge (Richter auf Lebenszeit)
presupposes that a person, after having obtained the qualification to
exercise the functions of a judge (Befähigung zum Richteramt), has
completed at least three years' service in the judiciary; this period
may be reduced in special circumstances (S. 10 of the Law on the
Judiciary). According to S. 12, such service in the judiciary may be
completed as a probationary judge (Richter auf Probe). Probationary
judges have to be appointed as permanent judges after five years of
service at the latest. The conditions for dismissing probationary
judges are laid down in S. 22; and S. 78 (4c) provides for a right of
recourse to a disciplinary court to challenge such a dismissal.
S. 25 of the Law on the Judiciary repeats the constitutional
guarantee of the independence of the judiciary, as enshrined in
Article 97 of the Basic Law (Grundgesetz). The different aspects of
this principle are regulated in SS. 26 to 37 of the Law on the
Judiciary.
According to S. 28 of the Law of the Judiciary, only permanent
judges may sit as judges in court, unless a federal law provides for
an exception; the presiding judge of a court composed of several judges
has to be a permanent judge. S. 59 para. 3 of the Courts Organisation
Act provides that probationary judges may sit at the regional courts.
S. 29 of the Law on the Judiciary, as amended by the Act on the
Relief of the Administration of Justice (Gesetz zur Entlastung der
Rechtspflege) of 11 January 1993, which came into operation on 1 March
1993, provides that altogether not more than two probationary judges,
or delegated judges (Richter kraft Auftrag, delegierte Richter), may
sit as members of a bench. The amended version of S. 29 of the Courts
Organisation Act expires on 28 February 1998, and as from 1 March 1998,
S. 29 in its previous version will again be operative, limiting the
number of probationary judges or delegated judges to one per bench.
According to the case-law of the Federal Constitutional Court
(leading decisions of 9 November 1955, BVerfGE 4 p. 331, and of
3 July 1962, BVerfGE 14 p. 156, respectively), on the independence of
the judiciary, Article 97 para. 2 of the Basic Law guarantees the
personal independence of the permanent judges in order to ensure their
requisite objective independence. Recourse to judges who do not
benefit from the guarantee of personal independence must remain the
exception. Courts with professional judges must in principle be
composed of permanent judges. Probationary judges may only participate
within the limits set by the necessity to train new judges or other
imperative reasons, such as imperative necessities in the
administration of justice (unumgängliche Bedürfnisse der Rechtspflege).
The existence of a necessity justifying the participation of
probationary judges may vary according to the various branches of the
judiciary, courts or chambers and senates, and must, therefore, be
determined in the particular circumstances of each individual case.
The training of law assessors for the purpose of their permanent
employment, the delegation of permanent judges employed at lower courts
to a higher court for the purpose of testing their abilities, as well
as the necessity to replace permanent judges temporarily prevented from
working in circumstances where the permanent judges determined in
advance as substitute judges are unable to cope with the extra burden
of work, or in cases where a temporarily extraordinary volume of work
has to be handled, are mentioned as examples. In the latter cases, the
recourse to probationary judges is nevertheless unjustified if the
workload was due to an insufficient number of posts or delays in the
appointment of permanent judges to vacant posts. Moreover, the
principle of the independence of judges demands that the total number
of probationary judges in a given branch of the judiciary is limited
to what is strictly required and that the distribution of probationary
judges among the courts, chambers and senates must be as fair as
possible.
COMPLAINTS
The applicant complains that the criminal proceedings against him
have, in several respects, not complied with Article 6 paras. 1
and 3 (b) of the Convention.
The applicant submits in particular that the 19b Auxiliary
Criminal Chamber was no "tribunal established by law" within the
meaning of Article 6 para. 1. The setting up of this Auxiliary
Criminal Chamber and its composition had not been regulated in advance,
namely at the beginning of the calendar year. He also complains about
the composition of this Chamber with regard to the lay assessors.
The applicant further alleges that, due to the participation of
two probationary judges in the bench of the 19b Auxiliary Criminal
Chamber, the trial had not been conducted by an "independent" tribunal
within the meaning of Article 6 para. 1.
The applicant finally considers that, as a consequence of the
refusal to put his personal files at his disposal for consultation in
prison, he could not duly prepare his defence and exercise his defence
rights, pursuant to Article 6 para. 3 (b).
THE LAW
1. The applicant complains about the criminal proceedings against
him before the Berlin Regional Court which resulted in his conviction
of fraudulent conversion. The invokes Article 6 paras. 1 and 3 (b)
(Art. 6-1, 6-3-b) of the Convention.
Article 6 (Art. 6), as far as relevant, provides as follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law. ...
...
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;
..."
2. The applicant complains that the 19b Auxiliary Criminal Chamber
was not a "tribunal established by law" within the meaning of Article
6 para. 1 (Art. 6-1).
a. The Commission recalls that it is the purpose of the requirement
in Article 6 para. 1 (Art. 6-1) that courts shall be "established by
law" that the judicial organisation in a democratic society must not
depend on the discretion of the Executive, but that it should be
regulated by law emanating from Parliament. However, Article 6 para. 1
(Art. 6-1) does not require the legislature to regulate every detail
in this area by a formal Act of Parliament if the legislature
establishes at least the organisational framework for the judicial
organisation (cf. Zand v. Austria, Comm. Report 12.10.78, D.R. 15, p.
80; see also Eur. Court HR, Piersack v. Belgium judgment of 1 October
1982; Series A no. 53, p. 16, para. 33).
b. The applicant's first argument relates to the establishment of
the 19b Auxiliary Criminal Chamber of the Berlin Regional Court. He
considers that he should have been tried by the 19th Extended Criminal
Chamber and not by an auxiliary chamber which, according to him, had
not been set up in accordance with pre-fixed rules. Moreover, the
19b Auxiliary Criminal Chamber was composed of judges principally
assigned to another criminal chamber.
The Commission, even assuming that this matter had been properly
raised in the applicant's appeal on points of law with the Federal
Court of Justice, notes that the applicant's case was within the
competence of the 19th Criminal Chamber of the Berlin Regional Court
which committed him for trial in June 1993. The applicant, who had
been detained on remand since October 1992, was subsequently tried by
the 19b Auxiliary Criminal Chamber of the Berlin Regional Court. This
Auxiliary Criminal Chamber had been set up by the Presiding Committee
of the Berlin Regional Court for the purpose of relieving the 19th
Criminal Chamber which, due to its workload, could not deal with urgent
cases.
The Commission finds that the Presiding Committee thereby
exercised its functions under S. 21e of the Courts Organisation Act,
namely to organise the distribution of cases and the replacement of
judges or benches and, if necessary in view of the excessive workload
of a bench, to change the rules governing a particular year. The
decision of the Presiding Committee setting up the 19b Auxiliary
Criminal Chamber as well as fixing its jurisdiction was therefore taken
on the basis of the relevant legislation.
Moreover, the Commission considers that in the present
circumstances, there were reasonable grounds to set up an auxiliary
criminal chamber for the purpose of relieving the 19th Criminal Chamber
which, due to its workload, could not deal with urgent cases. In this
context, the Commission recalls that domestic courts are obliged to
conduct the proceedings within a "reasonable time", and that Article 6
para. 1 (Art. 6-1) imposes on the Contracting States the duty to
organise their judicial systems in such a way that their courts can
meet each of its requirements (cf. Eur. Court HR, Muti v. Italy
judgment of 23 March 1994, Series A no. 281-C, p. 57, para. 15; Thomann
v. Switzerland judgment of 10 June 1996, para. 36, to be published).
c. As regards the applicant's further complaint about the lay
assessors, the Commission notes that the applicant was tried by the
19b Auxiliary Criminal Chamber, composed of three judges and Ms. Heiber
and Mr. Glässer as lay assessors. Ms. Heiber had been drawn by lot for
the 19th Criminal Chamber's session on 2 November 1993, Mr. Glässer,
a substitute lay assessor, had replaced the other principal lay
assessor who had been prevented from sitting. The principal lay
assessors were called in accordance with SS. 45, 77 of the Courts
Organisation Act, as interpreted by the Federal Court of Justice.
According to this case-law, the rule according to which principal lay
assessors are sitting at particular, previously fixed, session days and
continue to participate in the trial hearings having opened on that
date, covers situations where the date of a regular session, brought
forward or put back in time, was fixed for the opening of trial
hearings, and that this also applies to trial proceedings before an
auxiliary criminal chamber which sits with the principal lay assessors
of the parallel regular criminal chamber.
The Commission recalls that the logic of the system of safeguards
established by the Convention sets limits to the scope of the power of
review exercisable by the Convention organs in respect of compliance
with the relevant domestic legislation. It is in the first place for
the national authorities, notably the courts, to interpret and apply
the domestic law: the national authorities are particularly qualified
to settle the issues arising in this connection (Eur. Court HR,
Barthold v. Germany judgment of 25 March 1985, Series A no. 90, p. 22,
para. 48; No. 13274/87, Dec. 6.9.90, D.R. 66, p. 164).
The Federal Court of Justice based its interpretation of the
relevant provisions of the Courts Organisation Act on the
constitutional principle that no one shall be removed from the
jurisdiction of his or her lawful judge, as well as on considerations
of transparency and practicability. The applicant's submissions do not
disclose any failure to observe the legislation in question.
d. In these circumstances the Commission finds no indication that
the criminal proceedings against the applicant were not conducted by
a tribunal "established by law" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant further alleges that, due to the participation of
two probationary judges in the bench of the 19b Auxiliary Criminal
Chamber, the trial had not been conducted by an "independent" tribunal
within the meaning of Article 6 para. 1 (Art. 6-1).
The Commission recalls that, in determining whether a court may
be considered to be "independent" both of the executive and of the
parties to the case, regard must be had to the manner of appointment
of its members and the duration of their term of office, to the
existence of guarantees against outside pressures and to whether the
body presents an appearance of independence (cf. Eur. Court HR,
Campbell and Fell v. the United Kingdom judgment of 28 June 1984,
Series A no. 80, pp. 39-40, para. 78). In this context, the
irremovability of judges by the executive during their term of office
must be considered as a corollary of their independence and thus
included in the guarantees of Article 6 para. 1 (Art. 6-1) (cf. Eur.
Court HR, Campbell and Fell judgment, loc. cit., p. 40, para. 80; Zand
v. Austria, loc. cit., para. 80). What is at stake is the confidence
which the courts in a democratic society must inspire in the public
(cf. Eur. Court HR, Sramek v. Austria judgment of 22 October 1984,
Series A no. 84, p. 20, para. 42; De Cubber v. Belgium judgment of
26 October 1984, Series A no. 86, p. 14, para. 26).
In the present case, the 19b Auxiliary Criminal Chamber of the
Berlin Regional Court, when dealing with the applicant's case, was
composed of the Presiding Judge le Viseur, a permanent judge, and two
probationary judges, Ms. von der Decken and Ms. Kramer. The latter was
at the time of the opening of the applicant's trial hearings proposed
for appointment as permanent judge; her appointment took place after
seven hearing days.
The Commission notes that the principle of the independence of
permanent judges is enshrined in Article 97 of the German Basic Law and
further regulated in the Law on the Judiciary. The appointment as
permanent judge presupposes, in accordance with the relevant provisions
of the Law on the Judiciary, as a rule, a three-year-service in the
administration of justice, e.g. as probationary judge, after having
obtained the qualification to exercise the functions of a judge. Any
dismissal of judges in the course of their probationary period is
susceptible to judicial review. The participation of probationary
judges is regulated in the Law on the Judiciary and the Courts
Organisation Act. These legal instruments reflect the constitutional
limitations on the use of probationary judges in the judiciary, as
established in the jurisprudence of the Federal Constitutional Court.
According to this jurisprudence, recourse to judges who, considering
the possibility of their dismissal during the probationary period, do
not fully benefit from the guarantee of personal independence must
remain the exception, namely if a necessity to train judges or other
imperative reasons, such as reinforcing courts, exist.
In the present case, the Federal Court of Justice, in its
decision of 14 July 1995, found that, in the light of the above
principles, the independence of probationary judges was sufficiently
ensured under SS. 12, 22 and 78 (4c) of the Law on the Judiciary.
S. 29 of the Law on the Judiciary, as amended, which temporarily
allowed for the sitting of two probationary judges in a bench, was the
solution to the imperative necessities in the administration of justice
in the transitional period following the German unification.
The Commission finds that, in examining the situation of Judges
von der Decken and Kramer, regard must be had not only to the legal
provisions regarding probationary judges but also to how these
provisions are interpreted and how they actually operate in practice.
Under the German system, the participation of probationary judges
serves at the same time the purposes of training and selecting
candidates for appointment as permanent judges and of allowing the
courts to benefit from the work of these judges who, following legal
studies and training, obtained the general qualification to exercise
the functions of judges. In the exercise of their function as judges,
they enjoy the full guarantees as to their objective independence. The
fact that for the sole purpose of training, they remain for a period
regularly not longer than three years liable to removal by the judicial
authorities does not justify the conclusion that their objective
independence is no longer established. Accordingly, in the
Commission's view, this system does not, in itself, amount to a
situation which could seriously affect the confidence which the courts
must inspire in a democratic society.
The Commission further refers to its above finding that the
decision of the Presiding Committee of the Berlin Regional Court to set
up the 19b Auxiliary Criminal Chamber cannot be objected to under
Article 6 para. 1 (Art. 6-1). The Commission considers that this
Committee's related decision on the composition of the 19b Auxiliary
Criminal Chamber, in particular the assignment of the two probationary
judges Ms. von der Decken, who was about to be appointed as permanent
judge, and Ms. Kramer does not disclose any concrete reasons to doubt
the independence of the Chamber in question. Nor does the Chamber's
handling of the applicant's case, and in particular the conduct of
Ms. von der Decken and Ms. Kramer, give rise to any legitimate doubts
as to these persons' independence.
Against this background, the Commission finds that the
19b Auxiliary Criminal Chamber which determined the criminal charges
against the applicant was an "independent tribunal" within the meaning
of Article 6 para. 1 (Art. 6-1).
It follows that this complaint is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant finally considers that, as a consequence of the
refusal to put his personal files at his disposal for consultation in
prison, he could not duly prepare his defence and exercise his defence
rights, pursuant to Article 6 para. 3 (b) (Art. 6-3-b) of the
Convention.
The Commission observes that the applicant, assisted by defence
counsel throughout the criminal proceedings against him, failed to show
how far he pursued the matter at the trial hearings. His appeal on
points of law did not include any complaint that he had thereby been
unduly restricted in the exercise of his defence rights. However, even
assuming compliance with Article 26 (Art. 26) of the Convention, the
Commission finds no sufficient grounds to conclude that the applicant
had been prevented from duly preparing his defence and exercising his
defence rights at the trial against him.
Consequently, these aspects of the applicant's submissions do not
disclose any appearance of a breach of Article 6 (Art. 6), either.
It follows that this complaint is likewise manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy