Person convicted by final judgment challenges refusal to reopen criminal proceedings ‒ constitutional complaint partially successful

Press Release No. 11/2024 of 26 January 2024

Order of 4 December 2023 - 2 BvR 1699/22

In an order published today, the Third Chamber of the Second Senate of the Federal Constitutional Court partially granted a constitutional complaint lodged by an individual who had been convicted of murder under specific aggravating circumstances and who had challenged the ordinary courts’ refusal to reopen criminal proceedings after the European Court of Human Rights (ECtHR) had established a violation of the European Convention on Human Rights.

The right to a fair trial is violated if, based on objective criteria, there are well-founded doubts as to the impartiality of a court. Such objective criteria may include the fact that a judge was involved in deciding an earlier case against other individuals who participated in the same crime.

The complainant was convicted of murdering her then-husband and was sentenced to life imprisonment. One of the judges involved in her conviction had previously been involved in convicting her then-partner for his role in the same crime. The ECtHR found that the judge’s involvement in the subsequent case amounted to a violation of the Convention. The complainant thereupon filed an application requesting that the criminal proceedings against her be reopened. The Regional Court rejected this application. The complainant immediately lodged an appeal against this decision but the Higher Regional Court rejected the appeal as unfounded, finding that the complainant had failed to show that the judgment itself rested on a violation of the Convention. 

The Higher Regional Court violated the complainant’s general right of access to justice under Art. 2(1) in conjunction with Art. 20(3) of the Basic Law (Grundgesetz – GG). It did so by setting requirements which, in the complainant’s case, were unattainable and unreasonable. It thereby hampered access to a new trial in a manner that cannot be justified by factual reasons.

The matter is remanded to the Higher Regional Court.

Facts of the case:

The complainant’s ex-partner was convicted as a co-perpetrator in the murder of the complainant’s then-husband and was sentenced to life imprisonment. The reporting judge in that case later served as the presiding judge in the criminal proceedings against the complainant. 

In light of these circumstances, the complainant challenged the presiding judge on grounds of possible bias. The Regional Court rejected the complainant’s challenge and, in April 2014, convicted the complainant of murder under aggravating circumstances, sentencing her to life imprisonment. The complainant was unsuccessful both in her appeal on points of law before the Federal Court of Justice and in her constitutional complaint before the Federal Constitutional Court. 

The complainant subsequently filed an individual application with the ECtHR. The ECtHR found that the presiding judge’s participation amounted to a violation of the Convention. The ECtHR reasoned that while, according to a subjective test, there was nothing to indicate that the judge had acted with personal bias in the proceedings against the complainant, according to an objective test the complainant nonetheless had a legitimate fear that the judge had already reached a preconceived view on her guilt, given that he had previously sat on the bench that convicted her ex-partner. In the ECtHR’s view, the Higher Regional Court’s earlier judgment against the complainant’s ex-partner had presented its findings regarding the complainant as established facts and established legal qualification thereof, and not as mere suspicions. The ECtHR concluded that this went beyond what was necessary to legally qualify the offence committed by the complainant’s ex-partner (ECtHR, Judgment of 16 February 2021, no. 1128/17).

The complainant thereupon lodged an application with the Regional Court, requesting that the criminal proceedings against her be reopened. The Regional Court dismissed the application as inadmissible. The complainant immediately lodged a complaint against this decision, which the Higher Regional Court rejected as unfounded. In its reasons, the Higher Regional Court stated that in order for criminal proceedings to be reopened, the wording of the law requires that the judgment be based on a violation of the Convention. According to the Higher Regional Court, it fell to the complainant to show that the violation could have influenced the decision and that the complainant would possibly have received a different judgment if the Convention had been respected. Since the ECtHR had found nothing to question the personal impartiality of the judge, it was – in the Higher Regional Court’s view – the complainant’s task to demonstrate that the judgment was based on a violation of the Convention.

Key considerations of the Chamber:

To the extent that the constitutional complaint challenges the Higher Regional Court’s decision, it is admissible and well-founded. The Higher Regional Court violated the complainant’s general right of access to justice (Art. 2(1) in conjunction with Art. 20(3) of the Basic Law). It did so by requiring the complainant to demonstrate that the judgment was based on the Convention violation found by the ECtHR – requirements which, in the complainant’s case, were unattainable and unreasonable. These requirements hampered access to a new trial in a manner that cannot be justified by factual reasons.

a) The Higher Regional Court asked the complainant to demonstrate that the judgment contained indicators of possible bias, arguing that it was not its task to examine whether any of the findings in the extensive judgment convicting the complainant or any of the conclusions drawn from the evidence may have rested on preconceived ideas.

The Higher Regional Court thereby required the complainant to point to indicators that simply cannot exist in cases such as the present one. If a judge was involved in earlier proceedings on the same subject matter, doubts as to the court’s impartiality in rendering the later judgment may arise because indicators invalidating the court’s impartiality are present while indicators validating the court’s impartiality are absent. According to the ECtHR’s case-law, the fact that the later judgment makes no reference to the findings of the earlier judgment, is – among others – an important element in the examination of the question of whether the court met the requirement of impartiality. Conversely, if the later judgment includes excerpts from the earlier judgment, this undermines the claim to impartiality. Even if, as in the present case, the later judgment contains no indicators that invalidate the court’s impartiality, doubts can be objectively justified by the examination of the earlier judgment.

If an individual who seeks the reopening of proceedings under § 359 no. 6 of the Code of Criminal Procedure (Strafprozeßordnung – StPO) had to demonstrate that a later judgment contains indicators that invalidate the court’s impartiality, despite the ECtHR having found indicators in the very same judgment that validate the court’s impartiality, this is requesting the impossible. In the very same judgment, these indicators are mutually exclusive. If the court took witness and expert evidence and made fresh findings of fact and a legal analysis on this basis without any references to and reliance on the findings of an earlier judgment, there cannot – by definition – be any excerpts from or references to the earlier judgment without any fresh collection and evaluation of evidence. In any case, it is unreasonable to require this kind of substantiation because it is unclear which other indicators that invalidate the court’s impartiality could be meant here, given that the later judgment contains none of the indicators developed by the ECtHR in its case-law.

In the present case, the Higher Regional Court failed to recognise that the ECtHR’s finding of a Convention violation was not based on the possibility that an actually biased judge was involved in conducting the proceedings against the complainant and in convicting her. Rather, the Convention violation arose from the involvement of a judge whose impartiality was questionable from the complainant’s perspective based on an objective test. The simple fact that the judge in question participated in and thereby influenced the proceedings against the complainant meant that the violation had an impact; there was no need for possible bias to be reflected in the decision.

b) The requirements set by the Higher Regional Court are also not justified in substantive terms.

Due to the significance of the res iudicata effect, criminal proceedings can generally only be reopened if strict requirements are met. That said, this does not justify interpreting § 359 no. 6 of the Criminal Code of Procedure in a way that entirely rules out the possibility of proceedings being reopened in certain cases where a Convention violation has been found. Yet this is exactly what the unattainable requirements set by the ordinary courts entail. From the outset, these requirements prevent proceedings from being reopened if, in the case of a judge’s involvement in earlier proceedings on the same subject matter, the ECtHR finds that Art. 6(1) of the Convention has been violated due to the presence of objectively justified doubts regarding a court’s impartiality relying solely on indicators in the earlier judgment.

With § 359 no. 6 of the Code of Criminal Procedure, the legislator introduced the possibility of remedying a violation of the Convention. The requirement that a judgment must rest on a violation of the Convention in order for proceedings to be reopened excludes the reopening of proceedings in cases where the Convention violation had no effect. However, this must not result in certain Convention violations recognised in the ECtHR’s case-law being excluded from the outset from the scope of § 359 no. 6 of the Criminal Code of Procedure.

This would contradict the constitutional requirements triggered by a violation of the right to one’s lawful judge under Art. 101(1) second sentence of the Basic Law. In cases involving an unlawful composition of the bench, Art. 101(1) second sentence of the Basic Law requires that the criminal conviction be reversed ‒ something that can be sought and potentially achieved by lodging an appeal on points of law under § 338 no. 3 of the Code of Criminal Procedure. In cases where the composition of the bench violates Art. 6(1) of the Convention, the violation can be no less weighty. This must also be taken into account when interpreting and applying § 359 no. 6 of the Code of Criminal Procedure.