FIFTH SECTION
DECISION
Application no. 26892/12
Dieter WANNER
against Germany
The European Court of Human Rights (Fifth Section), sitting on 23 October 2018 as a Chamber composed of:
Yonko Grozev, President,
Angelika Nußberger,
André Potocki,
Síofra O’Leary,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 27 April 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The case originated in an application (no. 26892/12) 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”) by a German national, Mr Dieter Wanner (“the applicant”), on 27 April 2012.
2. The applicant was represented by Mr C. Schneble, a lawyer practising in Offenburg. The German Government (“the Government”) were represented by one of their Agents, Mr H.-J. Behrens, of the Federal Ministry of Justice and Consumer Protection.
3. The applicant complained about his criminal conviction for giving false testimony as a witness, relying, in particular, on the privilege against self-incrimination and the presumption of innocence, as guaranteed by Article 6 of the Convention, and on his right to freedom of expression, as guaranteed by Article 10.
4. On 5 July 2016 the application was communicated to the Government.
A. The circumstances of the case
5. The applicant was born in 1978 and lives in Schutterwald.
1. The initial proceedings
6. On 23 March 2007 the Lahr District Court convicted the applicant, inter alia, of aggravated assault, committed jointly with others (in Mittäterschaft), and sentenced him to nine months’ imprisonment, suspended on probation. It established that on the night of 29 April 2006 he and three unknown accomplices had entered L.’s flat and, while hitting and kicking him, had demanded that he repay 3,500 euros (EUR). During the trial the applicant denied taking part in the assault, although he conceded that L. had owed him EUR 3,500 and that he had been to his home several times before in order to demand payment. Nevertheless, the District Court found the applicant guilty, relying on the testimony of L. and his wife, which it considered credible. L. testified that he had recognised the applicant, since they were acquainted with each other and he had not been masked. L.’s wife identified the applicant from several photographs she was shown.
7. On 12 July 2007 the conviction became final after the applicant, who had initiated appeal proceedings, withdrew his appeal during the hearing before the Offenburg Regional Court.
2. The proceedings at issue
8. At the request of the Offenburg public prosecutor’s office, the applicant was summoned to appear before the investigating judge to be examined in the context of the assault on L. as a witness in proceedings which had been initiated against his three accomplices, whose identity remained unknown. On 7 September 2007 he appeared before the investigating judge. The judge explained to him that, as a witness, he was required to tell the truth. She did not inform him of his right to remain silent on certain questions so as not to incriminate himself under Article 55 of the Code of Criminal Procedure (see paragraph 17 below). He was warned that he could face coercive detention if he did not comply with his obligation to give testimony (see paragraphs 17-18 below). He maintained that he had not been at the scene of the crime and consequently could not say anything about those who had taken part in the assault.
9. Subsequently, the applicant was charged with giving false testimony while not under oath.
10. On 25 November 2008 the Offenburg District Court acquitted the applicant of those charges because it was not convinced that he had participated in the assault. After taking all the evidence again, the District Court, applying the principle in dubio pro reo, held that it was also possible that he had been at a birthday party at the time the crime had been committed.
11. On 23 November 2010, following an appeal by the prosecution, the Offenburg Regional Court convicted the applicant of giving false testimony while not under oath and sentenced him to six months’ imprisonment, suspended on probation. After hearing all the witnesses again, it established that he had taken part in the assault and consequently had not told the truth when he had been heard as a witness on 7 September 2007.
12. The Regional Court considered that the applicant had not been informed of his right not to provide answers by which he might incriminate himself. However, it found that such an instruction had not been necessary. There had been no danger of a new prosecution for the assault because the Lahr District Court’s judgment had become final (see paragraphs 6-7 above). In view of the principle of ne bis in idem, he could not have been prosecuted again for that act.
13. Referring to the relevant case-law of the Federal Court of Justice, the Regional Court accepted that the right to remain silent under domestic law also extended to questions which could indirectly incriminate a witness, even by contributing only a small piece of evidence against him. However, it could not discern any indirect danger that the applicant would be prosecuted for other crimes committed together with his accomplices, even if he were to reveal their names. He had submitted nothing in this regard, nor had the evidence-taking disclosed any facts which could justify his fear of a new criminal prosecution.
14. The Regional Court further ruled out a breach of Article 6 of the Convention. It took note of the applicant’s argument that Article 6 protected a convicted offender from being questioned as a witness about the same events in respect of which he had been found guilty by a final judgment as he would be forced to incriminate himself in an offence he had consistently denied. However, it found that Article 6 only protected a defendant from contributing to his own criminal prosecution. When, as in the instant case, there was no such danger, a convicted offender was obliged to testify as a witness in accordance with the relevant provisions of criminal procedural law.
15. On 28 July 2011 the Karlsruhe Court of Appeal dismissed an appeal by the applicant on points of law, finding no legal error to his detriment in the Regional Court’s judgment.
16. On 19 October 2011 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant, without providing reasons (no. 2 BvR 1905/11). The decision was served on his counsel on 27 October 2011.
B. Relevant domestic law
17. The relevant provisions of the Code of Criminal Procedure provide as follows:
Article 48
“(1) Witnesses shall be obliged to appear before the judge on the date set down for their examination. They shall have the duty to testify if no exception admissible by statute applies. ...”
Article 55
“(1) Any witness may refuse to answer any questions the reply to which would subject him ... to the risk of being prosecuted for a criminal or regulatory offence.
(2) The witness shall be instructed as to his right to refuse to answer.”
Article 70
“(1) A witness who without a legal reason refuses to testify or to take an oath shall be charged with the costs caused by this refusal. At the same time a coercive fine shall be imposed on him and if the fine cannot be collected, coercive detention shall be ordered.
(2) Detention may also be ordered to force a witness to testify; such detention shall not, however, extend beyond the termination of those particular proceedings, nor beyond a period of six months. ...”
18. Article 153 of the Criminal Code provides that a witness or expert who gives false unsworn testimony before a court or other authority competent to examine witnesses and experts under oath is liable to imprisonment from three months to five years. A witness is not liable to punishment under that provision if he or she wrongfully refuses to testify or if he or she remains silent, completely or partially, during examination. Such a witness, however, faces coercive measures under Article 70 of the Code of Criminal Procedure (see paragraph 17 above), with the amount of the coercive fine ranging from EUR 5 to 1,000 (section 6 § 1 of the Introductory Act to the Code of Criminal Procedure). A witness who gives false testimony is liable to punishment even if the court, despite its obligation to do so, failed to instruct him or her of the right to refuse to testify, with that omission being taken into account as a mitigating factor in sentencing (see Federal Court of Justice, no. 2 StR 408/03, decision of 13 February 2004). In exceptional cases, such an omission may lead to the testimony not being admitted as evidence in subsequent criminal proceedings, provided the accused objects to its admission as evidence during the hearing of the subsequent proceedings (see Bavarian Court of Appeal (BayObLG), no. 2 St RR 48/01, decision of 16 May 2001).
COMPLAINTS
19. The applicant complained about his criminal conviction for giving false testimony as a witness, relying, in particular, on the privilege against self-incrimination and the presumption of innocence, as guaranteed by Article 6 of the Convention, and on his right to freedom of expression, as guaranteed by Article 10.
THE LAW
A. Alleged violation of Article 6 of the Convention
20. Article 6 of the Convention, in so far as relevant, reads as follows:
“1. In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ...”
1. The parties’ submissions
21. The Government submitted that the applicant’s complaint in respect of his examination before the investigating judge was not compatible ratione materiae with Article 6 of the Convention. He was examined as a witness in the proceedings against his three unknown accomplices in the assault on L. on 30 April 2006. He had already been convicted for his involvement in that offence and that conviction had become final. He was not at risk of prosecution for that offence and there was no indication that he had been involved in the commission of further offences. The instruction by the investigating judge that he could be sanctioned to a coercive fine, should he refuse to give testimony as a witness, had not constituted a “charge”. Even assuming that it had, such a “charge” would not have been “criminal”, because the refusal to give testimony as a witness did not constitute a criminal offence under domestic law and the coercive fine, which ran to a maximum of EUR 1,000 or, in the event of failure to pay, detention for a maximum period of six months, aimed at making the witness testify, rather than at sanctioning. In view of his final conviction, he could no longer rely on the presumption of innocence in respect of that offence, nor on his right not to incriminate himself, which was closely connected to the presumption of innocence. Both the presumption of innocence and the privilege against self-incrimination served the purpose that a person did not have to actively contribute to his or her criminal conviction against his or her will.
22. The applicant claimed that his right not to incriminate himself under the Convention had to be understood in a wider sense, covering indirect potential self-incrimination for further offences resulting from his incrimination by possible accomplices. Assuming that he had participated in the assault on L., the fact that all his close friends had been ruled out as co‑offenders by the witnesses raised the suspicion that the actual accomplices were part of a criminal gang and had committed further crimes. Accordingly, the investigation into the gang members would naturally also be directed against him, and he would then run the risk of being suspected of further crimes. In addition, he complained that the authorities had indirectly intended to compel him to make a retroactive confession following the termination of the (initial) criminal proceedings against him, despite the fact that he had denied participating in the offence in question throughout those proceedings.
2. The Court’s assessment
(a) Relevant general principles
23. The Court reiterates that, although the right to remain silent under questioning and the privilege against self-incrimination (nemo tenetur se ipsum accusare) are not specifically mentioned in Article 6 of the Convention, there can be no doubt that they are generally recognised international standards which lie at the heart of the notion of a fair procedure under that Article (see, among other authorities, John Murray v. the United Kingdom, 8 February 1996, § 45, Reports of Judgments and Decisions 1996‑I). Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 of the Convention. The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Saunders v. the United Kingdom, 17 December 1996, § 68, Reports 1996‑VI, and H. and J. v. the Netherlands (dec.), nos. 978/09 and 992/09, § 68, ECHR 2014 (extracts)).
24. In Weh v. Austria (no. 38544/97, §§ 44 et seq., 8 April 2004) and Marttinen v. Finland (no. 19235/03, § 69, 21 April 2009) the Court considered it decisive, for the applicability of the privilege against self‑incrimination, whether criminal proceedings were pending or anticipated. The privilege against self-incrimination comes into play if information gained through compulsory powers may be used in criminal proceedings (compare Marttinen, cited above, §§ 72 et seq.).
25. The protections afforded by Article 6 §§ 1 and 3 of the Convention apply to a person subject to a “criminal charge”, within the autonomous Convention meaning of that term. A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (Simeonovi v. Bulgaria [GC], no. 21980/04, § 110, 12 May 2017).
26. This corresponds to the Court’s case-law that a person acquires the status of a suspect, calling for the application of the Article 6 safeguards, not when it is formally assigned to him or her, but when the domestic authorities have plausible reasons for suspecting that person’s involvement in a criminal offence (see Bandaletov v. Ukraine, no. 23180/06, § 56, 31 October 2013, and Sobko v. Ukraine, no. 15102/10, § 53, 17 December 2015, both in application of the principles laid down in Brusco v. France, no. 1466/07, § 47, 14 October 2010). Consequently, the Court has found that even if an interrogation is carried out while the suspect if formally considered as a witness, he or she still may enjoy the privileges under Article 6 of the Convention (compare Brusco, and Sobko, § 55, both cited above).
27. The Court also points out that the principle of nemo tenetur se ipsum accusare is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention (see Saunders, cited above, § 68). It further found that, in keeping with the need to ensure that the right guaranteed by Article 6 § 2 of the Convention is practical and effective, the presumption of innocence may be applied even after the end of the proceedings (see Allen v. the United Kingdom [GC], no. 25424/09, § 94, ECHR 2013). However, the protection afforded by the presumption of innocence ceases once an accused has properly been proved guilty of the offence (see Phillips v. the United Kingdom, no. 41087/98, § 35, ECHR 2001‑VII, and Cleve v. Germany, no. 48144/09, § 37, 15 January 2015).
(b) Application of these principles to the present case
28. The Court considers that the applicant made two separate complaints. Firstly, he claimed that his truthful answers to the questions could potentially have led to his further criminal prosecution for offences of which he had not yet been convicted. Secondly, he alleged the authorities had indirectly intended to compel him to make a retroactive confession following the termination of the (initial) criminal proceedings against him, despite the fact that he had denied participating in the offence in question throughout those proceedings.
(i) Further criminal prosecution
29. The Court notes that the applicant was not told that he had a right to remain silent. The Regional Court conceded that the right to remain silent also extended to content which could only indirectly incriminate a witness. However, it found that the relevant instruction had not been necessary because there was no indication that the investigations into the accomplices could lead to further criminal prosecution of the applicant (see paragraphs 12-13 above).
30. The Court reiterates that the applicability of the criminal limb of Article 6 of the Convention cannot be ruled out solely because the applicant was never formally charged with further crimes allegedly committed with his accomplices in the assault of which he was found guilty. However, the Court considers that the facts of the case do not support his allegation that he risked prosecution regarding further offences. His examination as a witness in the proceedings against his three unknown accomplices in the assault on L., for which he had already been convicted, served the sole purpose of identifying those accomplices. There was no indication that the accomplices were members of a criminal gang and that they might incriminate him with involvement in further offences. The Court therefore does not discern that the domestic authorities had plausible reasons for suspecting his involvement in a (further) criminal offence or intended to bring criminal proceedings against him in respect of such an offence (see Shannon v. the United Kingdom, no. 6563/03, § 38, 4 October 2005, and Weh, cited above, §§ 50-56).
31. Therefore, the applicant was not “substantially affected” by being compelled to fulfil his civic obligation as a witness and to testify truthfully. Consequently, he cannot be considered to have been “charged” with a criminal offence within the meaning of Article 6 § 1 of the Convention in respect of potential further offences, when he was examined as a witness by the investigating judge in the proceedings against his three unknown accomplices in the assault on L. It follows that the criminal limb of Article 6 of the Convention is not applicable in respect of this part of the complaint.
(ii) Participation in the assault on L.
32. The Court notes that at the time of the applicant’s examination by the investigating judge, on 7 September 2007, the judgment of the Lahr District Court, convicting him of the assault on L., became final after he had withdrawn his appeal before the Regional Court (see paragraphs 6-7 above). There was, thus, no legal possibility of him being prosecuted again for his participation in that assault. He was, legally, not “substantially affected” by the obligation to answer truthfully, as a witness, the questions put to him by the investigating judge in the proceedings against his three unknown accomplices in that assault. He was not “charged” with a criminal offence within the meaning of Article 6 § 1 of the Convention in respect of his participation in that offence.
33. Given his final conviction, the applicant could also no longer rely on the presumption of innocence, as the protection afforded by that presumption ceases once an accused has properly been proved guilty of the charge in question (see Phillips, § 35, and Cleve, § 37, both cited above), as also evidenced by the wording of Article 6 § 2 of the Convention. The situation in the present case is fundamentally different from that in cases in which the Court found the presumption of innocence to be applicable after the criminal proceedings had ended. In those cases, the individuals had either been acquitted of a criminal charge or the criminal proceedings had been discontinued (see Allen, cited above, §§ 94, 98 and 102, with further references), warranting continued respect for the individual’s right to be presumed innocent, as he or she had not been proved guilty according to law.
34. Reiterating that the right not to incriminate oneself is closely linked to the presumption of innocence (see Saunders, cited above, § 68), and given that the applicant could no longer rely on the presumption of innocence in respect of his involvement in the assault on L. and that he no longer risked prosecution for that offence, the Court concludes that he could not rely on his right not to incriminate himself when he was examined as a witness by the investigating judge in the proceedings against his three unknown accomplices. In the specific circumstances of the present case, where there was obviously no risk of further prosecution for the person examined as a witness, the rationale behind the right not to incriminate oneself does not require a right for that witness to refuse testimony. Even if that witness made self-incriminatory statements, it could – in the light of the ne bis in idem principle – not result in an active contribution to his or her conviction against his or her will, which lies at the heart of the said Article 6 safeguards.
35. Rather, the effective administration of justice requires such a witness – like any witness who does not have a right to refuse testimony – to comply with the civic duty of giving truthful testimony in accordance with the relevant criminal procedural law. Article 6 of the Convention does not therefore offer any privileges to a former defendant whose conviction has become final as regards giving testimony about the crime of which he was convicted. Consequently, the Court finds that Article 6 of the Convention is not applicable in respect of the applicant’s complaint that the authorities had indirectly intended to compel him to make a retroactive confession following the termination of the (initial) criminal proceedings against him.
(iii) Conclusion
36. It follows that this part of the application must be rejected as incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Alleged violation of Article 10 of the Convention
37. The applicant, relying on Articles 3, 6, 10 and 14 of the Convention, complained that unlawful pressure had been exerted on him to confess to an offence he had consistently denied and that he had had a right to continue to claim his innocence and, furthermore, that he had been treated differently to a convicted criminal who had confessed but kept silent about his accomplices. The Court, being the master of characterisation to be given in law to the facts of the case, considers that this complaint falls to be examined under Article 10 of the Convention, which, in so far as relevant, reads as follows:
“1. Everyone has the right to freedom of expression. ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the prevention of ... crime ... or for maintaining the authority ... of the judiciary.”
38. The Government contested the applicant’s arguments, submitting that the interference with the applicant’s right to freedom of expression by convicting him for giving false testimony had been justified as it had been necessary for maintaining the authority of the judiciary. Establishing the truth was a precondition for rendering justice and required that witnesses were obliged to give truthful testimony. False testimony could result in the miscarriage of justice, therefore it was necessary to criminally sanction a witness who gave false testimony before a court. Lastly, it had to be borne in mind that only the expression of wrong factual statements, which in itself did not warrant the highest level of protection, when being examined as a witness by a court was sanctioned, so the scope of the interference had been restricted.
39. The Court does not rule out that a negative right to freedom of expression is protected under Article 10 of the Convention, but finds that this issue should be properly addressed in the circumstances of a given case (Gillberg v. Sweden [GC], no. 41723/06, § 86, 3 April 2012). This question would have to be determined if the applicant complained about the coercion to testify. In the present case he complained, however, that he was found guilty of having made a false statement, as he had maintained that he had not been at the scene of the crime and consequently could not say anything about those who had taken part in the assault after he was warned by the investigating judge that he could face coercive detention if he did not comply with his obligation to give testimony (see paragraph 8 above).
40. Even assuming that Article 10 of the Convention was applicable in these circumstances, the Court takes the view that the complaint would, in any event, be inadmissible because the interference met the requirements of Article 10 § 2.
41. The interference – in the form of the applicant’s criminal conviction – was prescribed by Article 153 of the Criminal Code and thus in accordance with the law. It pursued the legitimate aims of “maintaining the authority of the judiciary” as well as of “the prevention of crime”, that latter concept encompassing the securing of evidence for the purpose of detecting and prosecuting crime (see Van der Heijden v. the Netherlands [GC], no. 42857/05, § 54, 3 April 2012).
42. The Court thus has to examine whether this interference was “necessary in a democratic society”, in particular whether it was proportionate to the aims pursued. It reiterates that the duty to give evidence in criminal proceedings is ordinarily a normal civic duty in a democratic society governed by the rule of law (see Voskuil v. the Netherlands, no. 64752/01, § 84, 22 November 2007). The applicant had been convicted of the offence in question despite pleading his innocence throughout the criminal proceedings against him. He did not risk further criminal prosecution for that incident as, following the withdrawal of his appeal, his conviction had become final (see paragraph 7 above). All he had been asked to do, was testify regarding the names of his accomplices of that offence. There was no indication that this could lead to the revelation of any further offences involving him.
43. In these circumstances, the domestic courts’ decision not to exempt him from the statutory obligation of any witness to give evidence in the context of criminal investigations and, eventually, at trial against third parties cannot be regarded as disproportionate to the aims of the prevention of crime and of maintaining the authority of the judiciary. The opposite approach – either exempting him from the obligation to give testimony as a witness or not sanctioning the false testimony given by him – could result in the perpetrators of the incident of 30 April 2006 not being identified and prosecuted, and, more broadly, a miscarriage of justice.
44. In the light of the foregoing, the Court finds that, even assuming that Article 10 of the Convention was applicable, the interference was thus “necessary in a democratic society”. Accordingly, the complaint is, in any event, manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must therefore be declared inadmissible in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 22 November 2018.
Claudia WesterdiekYonko Grozev
RegistrarPresident
Full & Egal Universal Law Academy