AS TO THE ADMISSIBILITY OF
Application No. 22648/93
by Heinrich WIEDEMANN
against Germany
The European Commission of Human Rights sitting in private on
7 April 1997, 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
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
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 18 May 1993 by
Heinrich WIEDEMANN against Germany and registered on 17 September 1993
under file No. 22648/93;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
6 May 1996 after an extension of the time-limit and the
observations in reply submitted by the applicant on
2 July 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, born in 1937, and living in
Bebra. He is represented by Mr. W. Both, a lawyer practising in
Rotenburg.
The facts, as submitted by the parties, may be summarised as
follows.
On 21 January 1991 the Rotenburg District Court (Amtsgericht)
convicted the applicant of unauthorised use of a waste destruction
installation (Betreiben einer Abfallbeseitigungsanlage ohne
Genehmigung) and imposed a fine amounting to DEM 6,000.
The Court found that in 1972/73 the applicant, a businessman
dealing with furniture, constructed a warehouse after having received
a building permit. In addition to the warehouse he built, using the
concrete slabs left over from the warehouse construction, a fireplace
which he then used to burn waste such as cardboard and wood. He thus
saved money as otherwise he would have had to use containers for
transporting the waste to authorised destruction installations.
Upon the applicant's defence that two officials had allegedly
inspected his premises and not objected to the fireplace, the two
officials in question were heard as witnesses and denied having seen
the fireplace and approved its use. Consequently the Court considered
that the applicant had no excuse for having used the fireplace over a
period of years without worrying about whether or not this was allowed
under the existing environmental regulations.
On 10 June 1991 the 8th Criminal Chamber (Kleine Strafkammer) of
the Kassel Regional Court (Landgericht), sitting with the Presiding
Judge S., rejected the applicant's appeal (Berufung). Upon the appeal
of the Public Prosecutor, it quashed the District Court's sentence and
imposed a fine amounting to DEM 13,500. In the trial record, it was
erroneously stated that the parties to the proceedings had waived their
right to appeal. The Regional Court therefore abbreviated the text of
its judgment in accordance with S. 267 para. 4 of the Code of Criminal
Procedure (Strafprozeßordnung). The record was corrected upon the
request of the applicant's defence counsel of 31 July 1991.
On 30 October 1991 the Frankfurt Court of Appeal
(Oberlandesgericht) granted the applicant's request for leave to appeal
out of time as his appeal submissions allegedly filed in time could not
be found at the Kassel Regional Court. The Court of Appeal also
decided that the time limit for the submission of the reasons of appeal
should start to run as from the service of the amended judgment.
On 19 December 1991 the full text of the Regional Court's
judgment was communicated to the applicant. The Regional Court, in the
amended judgment, found that the requirement of a permit for the
fireplace had existed already at the relevant time. The Regional Court
considered that the applicant should have been aware that the burning
of waste was illegal. He also had a duty to enquire whether he was
allowed to burn waste. As he failed to do so he was guilty of the
offence in question.
On 5 May 1992 the Frankfurt Court of Appeal confirmed the
conviction, but quashed the sentence and sent the matter back to
another bench of the Regional Court. The Court of Appeal noted that
the Regional Court had, in an unobjectionable manner, found that the
applicant had no excuse in using his fireplace, as his alleged error
relating to the requirement of a permit was avoidable. However, the
Regional Court should also have taken this element into account in
fixing the sentence as being possibly a mitigating factor.
S. 345 para. 2 of the Code of Criminal Procedure generally
provides that, where a case is referred back upon an appeal on points
of law, the new set of trial proceedings is conducted before another
bench (Spruchkörper) of the same court or another court of the same
level. According to the internal organisation of work (richterliche
Geschäftsverteilung) at the Kassel Regional Court in 1992, the 7th
Criminal Chamber was competent to decide in cases where a judgment of
the 8th Criminal Chamber had been quashed and the matter was sent back
for further action. In 1992 Presiding Judge S. was assigned to the 7th
Criminal Chamber.
On 30 June 1992 the 7th Criminal Chamber, sitting with Presiding
Judge S. and two lay assessors who had not been involved in the first
set of appeal proceedings, rejected the applicant's appeal. Upon the
Public Prosecutor's appeal, it fixed a fine of DEM 13,500. In fixing
the sentence, the Regional Court noted that according to S. 327 para. 3
(2) of the Penal Code (Strafgesetzbuch) the offence in question was
punishable with up to two years' imprisonment or a fine. The Regional
Court considered that the applicant's alleged error in believing that
he did not need a special permit, did not constitute a mitigating
factor. As a businessman the applicant should have enquired whether
or not he needed a permit for the fireplace. Furthermore, complaints
raised by third persons about the use of the fireplace should have
prompted him to find out whether he acted lawfully in using it.
Instead he had used the fireplace over a period of years in order to
save money without caring about whether this was lawful. Therefore the
fine imposed was adequate.
The applicant lodged an appeal on points of law (Revision),
complaining inter alia that Presiding Judge S. had again decided his
case when it was sent back by the Frankfurt Court of Appeal for the
purpose of fixing a new sentence.
On 30 June 1992 the Frankfurt Court of Appeal dismissed the
applicant's appeal on points of law.
On 31 March 1993 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit his constitutional complaint on
the ground that it offered no prospect of success. The Constitutional
Court considered that there existed no constitutional norm which
required that in the case of an appellate court sending a matter back
for reconsideration by the first instance court other judges than those
who formerly dealt with the case had to decide in the matter. It is
further pointed out that the situation in question was to be
distinguished from the Hauschildt v. Denmark case decided by the
European Court of Human Rights (judgment of 24 May 1989, Series A
no. 154) because in that case a judge had been considered no longer to
qualify as an impartial trial judge on account of his pre-trial
activities in the investigation phase. Furthermore, it is noted that
according to the Hauschildt judgment not all pre-trial activities of
a judge exclude him from participating in the later trial.
COMPLAINTS
The applicant considers that he had justified reason to doubt the
impartiality of Judge S. when she decided his case again after it was
sent back by the Frankfurt Court of Appeal. This all the more so as
she signed a trial record erroneously stating that he had waived his
right to appeal and had recommended him at the oral hearing of
30 June 1992 to withdraw his appeal. He invokes Article 6 para. 1 and
Article 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 May 1993 and registered on
17 September 1993.
On 22 January 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
6 May 1996, after an extension of the time-limit. The applicant
submitted observations in reply on 2 July 1996.
THE LAW
The applicant complains that he did not receive a fair hearing
by an "impartial tribunal" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1), in so far as relevant, provides:
"In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by an
... impartial tribunal ..."
The Government claim that to the extent that the applicant's
complaint about the alleged lack of impartiality of the Presiding Judge
S. are based on other circumstances than her participation in the first
set of appeal proceedings, he failed to exhaust the domestic remedies.
They point out that he did not challenge the Presiding Judge for bias
at the hearing concerned. Moreover, in the Government's view, the mere
participation of a judge in a further set of proceedings following
successful appeal proceedings does not justify any doubts as to his
impartiality. The provision of S. 345 para. 2 of the Code of Criminal
Procedure did not generally exclude any judge from sitting again on a
case sent back by a superior court. Moreover, even assuming compliance
with Article 26 (Art. 26), the applicant's further submissions did not
disclose any lack of impartiality on the part of the Presiding Judge
S.
The applicant disagrees with the Government's views. He points
out that the Frankfurt Court of Appeal expressly remitted the case to
another bench of the Kassel Regional Court.
The Commission recalls that impartiality for the purposes of
Article 6 para. 1 (Art. 6-1) must be determined according to a
subjective test, that is on the basis of the personal conviction of a
particular judge in a given case, and also according to an objective
test, that is ascertaining whether the judge offered guarantees
sufficient to exclude any legitimate doubt in this respect (cf. Eur.
Court HR, De Cubber v. Belgium judgment of 26 October 1984, Series A
no. 86, p. 14, paras. 25, 26; Hauschildt v. Denmark judgment of 24 May
1989, Series A no. 154, p. 21, para. 46; Thomann v. Switzerland
judgment of 10 June 1996, para. 30, to be published in Reports of
Judgments and Decisions 1996).
As regards the subjective test, the Commission, assuming
compliance with Article 26 (Art. 26) of the Convention, finds that
there was nothing to indicate any prejudice or bias on the part of
Judge S., who presided over the Regional Court when dealing with the
applicant's appeal against the first instance judgment. The fact that
the Presiding Judge S. erroneously assumed a waiver of the parties'
right to appeal and established first an abbreviated text of the
judgment as well as the applicant's allegation that, in the second set
of appeal proceedings, she advised him to withdraw his appeal do not
in themselves indicate bias. In these circumstances, the Commission
cannot but presume her personal impartiality (Thomann judgment, op.
cit., para. 31).
It remains to be examined whether the impartiality of Judge S.
can also be affirmed under the objective test.
Under this test it must be determined whether, quite apart from
the judge's personal conduct, there are ascertainable facts which may
raise doubts as to his impartiality. In this respect even appearances
may be of a certain importance. What is at stake is the confidence
which the courts in a democratic society must inspire in the public and
above all, as far as criminal proceedings are concerned, in the
accused. It follows that in deciding whether in a given case there is
a legitimate reason to fear that a particular judge lacks impartiality,
the opinion of the accused is important, but not decisive. What is
decisive is whether his fear can be regarded as objectively justified
(cf. Hauschildt judgment, op. cit., para. 48; Nortier v. the
Netherlands judgment of 24 August 1993, Series A no. 267, p. 15,
para. 33).
In its judgments in the cases of Ringeisen v. Austria and Diennet
v. France, the Court held that "it cannot be stated as a general rule
resulting from the obligation to be impartial that a superior court
which sets aside an administrative or judicial decision is bound to
send the case back to a different jurisdictional authority or to a
differently composed branch of that authority". The Court observed
that "no ground for legitimate suspicion can be discerned in the fact
that" judges who "had taken part in the first decision" also
participate in the second (cf. Eur. Court HR, Ringeisen v. Austria
judgment of 16 July 1971, Series A no. 13, p. 40, para. 97; Diennet
judgment of 26 September 1995, Series A no. 325-A, pp. 16-17,
paras. 37-38; Thomann judgment, op. cit., para. 33).
In the present case, the applicant's conviction by the Regional
Court had been confirmed by the Court of Appeal which only considered
it necessary that the lower court reconsider the fixing of the sentence
to be imposed upon him. The Court of Appeal, in sending the case back
to the Regional Court, indicated which circumstances had to be taken
into account in this context. The decision to be taken by the Regional
Court was thus limited in scope and in particular no longer related to
the question of the applicant's guilt.
In the light of the above principles, the participation of
Judge S. in the first set of appeal proceedings is not sufficient to
cast doubt on her impartiality, once the case had been remitted for
reconsideration of the sentence to be imposed upon the applicant.
It is true that German law provides that following an appeal on
points of law cases are sent back to another bench or another court of
the same level. This rule manifests the national legislator's concern
to remove doubts as to the impartiality of the court dealing with a
case in a second set of proceedings (cf., mutatis mutandis, Eur. Court
HR, Oberschlick v. Austria judgment of 23 May 1991, Series A no. 204,
p. 50, para. 50). Under the internal organisation of work at the
Kassel Regional Court, cases previously dealt with by the 8th Criminal
Chamber were accordingly to be conducted before the 7th Criminal
Chamber if sent back after an appeal on points of law. Presiding
Judge S. was sitting in this Chamber following a change in the
composition of the benches, pursuant to the yearly internal
distribution of work at the Regional Court. However, German law does
not forbid, in a case like this, the participation of a judge who has
previously dealt with it in the first set of proceedings.
In these circumstances, the Commission cannot find that the
applicant's fears as to the impartiality of Judge S. can be regarded
as being objectively justified. Consequently there is no appearance
of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
Moreover, having regard to its decision on Article 6 para. 1
(Art. 6-1), the Commission considers that it is not necessary to
examine the case under Article 13 (Art. 13); this is because its
requirements are less strict than, and are here absorbed by, those of
Article 6 para. 1 (Art. 6-1) (cf. Eur. Court HR, Sporrong and Lönnroth
v. Sweden judgment of 23 September 1982, Series A no. 52, p. 32,
para. 88).
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy