FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 26171/07
by Lars HÜMMER
against Germany
The European Court of Human Rights (Fifth Section), sitting on 
8 June 2010 as a Chamber composed of:
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 3 May 2007,
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
The applicant, Mr Lars Hümmer, who was granted legal aid, is a German national who was born in 1978 and lives in Bayreuth. He is represented before the Court by Mr T. Guber, a lawyer practising in Munich. 
The German Government (“the Government”) are represented by their Deputy Agent, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 November 2003 the applicant's parents, his brother and his sister (“the witnesses”) informed the police about an incident that had occurred during the night of 2-3 September 2003. The witnesses testified that the applicant, who cannot remember the incident, had attacked his brother with an axe and had strangled his sister before being overpowered by his parents.
The Coburg Public Prosecutor opened a criminal investigation against the applicant for attempted murder. On 8 December 2003 the witnesses repeated their witness statements before the investigating judge (Ermittlungsrichter) of the Kronach District Court. The applicant was not informed of the hearing before the investigating judge. No counsel was appointed for him.
On 16 December 2003 the Kronach District Court issued a warrant for the applicant's arrest. The applicant was arrested on 19 December 2003 and remanded in custody pending trial. On 6 October 2004 the Coburg Regional Court ordered the applicant be placed in a psychiatric hospital pending trial.
On 28 February 2005 the Coburg Regional Court ordered the applicant to be placed in a psychiatric hospital pursuant to Article 63 of the Criminal Code (see “Relevant domestic law and practice” below). The Regional Court held that the applicant had attacked his brother with an axe and strangled his sister during the night of 2-3 September 2003. It qualified the acts as two counts of occasioning grievous bodily harm. It further held on the basis of expert opinions that the applicant had acted either in a state of diminished awareness of his actions due to epilepsy (epileptischer Dämmerzustand) or during a bout of paranoid schizophrenia, and could therefore not be held responsible for the acts, pursuant to Article 20 of the Criminal Code (see “Relevant domestic law and practice” below).
As regards the findings of the facts, the Regional Court noted that the direct witnesses had availed themselves of their right not to testify against the applicant in court pursuant to Article 52 of the Code of Criminal Procedure (see “Relevant domestic law and practice” below). The facts could nevertheless be established on the basis of the testimony of the investigating judge, who had repeated the witnesses' pre-trial statements in court. The Regional Court held that it could hear the investigating judge as a witness and take his testimony about the witnesses' pre-trial statements into account.
The Regional Court noted that the Public Prosecutor had failed to request the appointment of counsel before the hearing before the investigating judge, as required by Article 141 (3) of the Code of Criminal Procedure as constructed by the Federal Court of Justice: the then unrepresented applicant had not been informed about the hearing before the investigating judge pursuant to Article 168(c) (3) and (5) of the Code of Criminal Procedure; there had been no grounds to exclude counsel from the hearing; and on the basis of the charges of attempted murder, counsel would have had to be appointed in the main proceedings under Article 140 (1) No. 2 of the Code of Criminal Procedure and Article 6 § 3 (d) of the Convention 
(see “Relevant domestic law and practice” below).
The Regional Court reiterated that under the Federal Court of Justice's case-law the failure to appoint counsel did not compel the exclusion of the investigating judge's testimony. However, the Regional Court was bound to assess the investigating judge's testimony particularly critically because neither the accused nor counsel had been able to examine the witnesses against the accused. The finding of facts could only be based on the investigating judge's testimony if his testimony was corroborated by other important considerations.
The Regional Court took the following considerations as corroborating the investigating judge's testimony into account: a police superintendent had testified that the witnesses had contacted him and had told him spontaneously, prior to their excluded testimonies to the police, that the applicant had attacked members of his family with an axe; another policeman had testified that one of the witnesses had called him and had asked him spontaneously what further action would be taken following the criminal information against the applicant; a medical doctor had testified that he had treated the applicant's brother's cuts on 3 September 2003 and that the applicant's brother had told him unconvincingly that he had fallen through a glass pane; the applicant's brother had handed an axe over to the police and the policeman who had received the axe had testified that the witness had told him that the axe was the corpus delicti; finally, 
the applicant had testified that he could remember seeing his brother covered in blood on the morning of 3 September 2003 and that the witnesses had told him that he had attacked them with an axe during the night.
The applicant lodged an appeal on points of law in which he complained that the investigating judge's testimony ought to have been excluded.
The Coburg Public Prosecutor lodged an appeal on points of law in which he argued that the attack on the witnesses should have been classified as two counts of attempted manslaughter as well as occasioning grievous bodily harm.
On 25 May 2005 the Federal Public Prosecutor moved that the applicant's appeal on points of law be dismissed on the grounds that the Regional Court had, in line with the reasoning in the Federal Court of Justice's leading judgment, established that the investigating judge's testimony had been corroborated by other important considerations and that the Regional Court's holding was free of error.
On 24 August 2005 the Federal Court of Justice dismissed the applicant's appeal on points of law as ill-founded. On 31 August 2005 the Federal Court of Justice ordered the State to pay the costs of the Public Prosecutor's Appeal on points of law which had been withdrawn. These decisions were served on the applicant on 9 and 16 September 2005 respectively.
On 1 April 2006 the applicant lodged his first application with this Court (no. 14678/06) which was declared inadmissible for non-exhaustion of domestic remedies by a Committee of three judges on 5 September 2006.
On 16 October 2006 the applicant applied for the reinstatement of the proceedings in regard to his compliance with the one-month period to lodge a constitutional complaint and submitted his constitutional complaint to the Federal Constitutional Court.
On 25 October 2006 the Registry of the Federal Constitutional Court informed the applicant thathis constitutional complaint might be inadmissible for tardiness, that it was unclear whether the applicant had applied for the reinstatement of the proceedings within one year after the expiry of the time-limit(see “Relevant domestic law and practice” below), and that he had not provided the Federal Constitutional Court with copies of the contested decisions.
The applicant submitted copies of the contested decisions to the Federal Constitutional Court as annexes to an undated letter which was received by the Federal Constitutional Court on 13 February 2007.
On 20 March 2007 the Federal Constitutional Court refused to admit the applicant's constitutional complaint for examination and noted that there was no need to decide the applicant's application for the reinstatement of the proceedings (no. 2 BvR 225/07).
B.  Relevant domestic law and practice
The Regional Court may order an accused to be placed in a psychiatric hospital if he has committed an unlawful act and at the time lacks the capacity to be adjudged guilty, and if his act reveals that as a result of his condition serious unlawful acts can be expected of him and that he therefore presents a danger to the general public (Article 63 of the Criminal Code). An accused acts without guilt if he is incapable of appreciating the wrongfulness of his act or of acting in accordance with such appreciation due to a pathological emotional disorder, profound consciousness disorder, mental defect or any other serious emotional abnormality (Article 20 of the Criminal Code).
Pursuant to Article 168(c) (2) of the Code of Criminal Procedure, the prosecutor, the accused and defence counsel shall be permitted to be present during the judicial examination of a witness or expert. The judge may exclude an accused from being present at the hearing if his presence would endanger the purpose of the investigation, in particular if it is to be feared that a witness will not tell the truth in the presence of the accused 
(168(c) (3) of the Code of Criminal Procedure). The persons entitled to be present shall be given prior notice of the dates set down for the hearings. The notification shall be dispensed with if it would endanger the success of the investigation (168(c) (5) of the Code of Criminal Procedure).
Parents, brothers and sisters need not testify against their accused son or daughter, brother or sister (Article 52(1) No. 3 of the Code of Criminal Procedure); if such a witness makes use of his or her right to refuse to testify only at the main hearing, prior witness statements shall not be read out (Article 252 of the Code of Criminal Procedure). According to the Federal Court of Justice's case-law, Article 252 of the Code of Criminal Procedure is an exclusionary rule that applies to all statements made prior to a main hearing by witnesses who assert their right to refuse to testify at the main hearing, with the exceptions of spontaneous statements made by the witness before or outside his or her formal testimony and testimonies before a judge after the witness has been advised of his or her right not to testify.
The assistance of defence counsel is mandatory if, inter alia, the main hearing is held at first instance before the Regional Court, the accused is charged with a serious criminal offence, or the proceedings are conducted with a view to placement in a psychiatric hospital (Article 140(1) 
Nos. 1, 2 and 7 of the Code of Criminal Procedure). Counsel is to be appointed when an indicted accused without defence counsel has been requested to reply to the bill of indictment (Article 141(1) of the Code of Criminal Procedure). Defence counsel may also be appointed during preliminary proceedings; the public prosecution office shall request such an appointment if in its opinion the assistance of defence counsel in the main proceedings will be mandatory (Article 141(3) of the Code of Criminal Procedure).
In a leading judgment of 25 July 2000 (published in the official reports, BGHSt, volume 46, p. 96 et seq.) the Federal Court of Justice held that Article 141(3) of the Code of Criminal Procedure required, in view of Article 6 § 3 (d) of the Convention, the appointment of counsel for an unrepresented accused if the key witness for the prosecution was to testify before an investigating judge and the accused was excluded from this hearing. The failure to appoint counsel prior to the hearing before the investigating judge did not exclude the latter's testimony about the witnesses' statements as long as the proceedings, seen as a whole, remained fair. To this end the investigating judge's testimony had to be strictly assessed. A conviction could only be based on the investigating judge's testimony if this testimony was corroborated by important outside considerations.
A constitutional complaint must be lodged and all the relevant information must be provided to the Federal Constitutional Court within one month after the decision complained of has been served on the complainant (Section 93(1) of the Federal Constitutional Court Act). If a complainant was unable to comply with this time-limit through no fault of his own, he may apply for the reinstatement of the proceedings; such an application is, however, inadmissible if made later than one year after the expiry of the time-limit (Section 93(3) of the Federal Constitutional Court Act).
COMPLAINT
The applicant complained under Article 6 § 3 (d) of the Convention that he had no opportunity to cross-examine the witnesses against him after they had availed themselves of their right not to testify in court.
THE LAW
A.	The Government's plea of non-exhaustion
1.	The Parties' submissions
a.	The Government
The Government submitted that the application was inadmissible for non-exhaustion of domestic remedies for the applicant had failed to raise his complaints in conformity with the procedural requirements and time-limits under German law. He had lodged his constitutional complaint against the decision of the Federal Court of Justice of 24 August 2005 out of time and had applied for the reinstatement of the proceedings after the statutory 
one-year period had already expired, as evidenced by the letter of the Registry of the Federal Constitutional Court of 25 October 2006.
Furthermore, the present case ought to be distinguished from 
Starikow v. Germany ((dec.), no. 233395/02, 10 April 2003) in which the Court had concluded that the applicant in that case had exhausted domestic remedies in view of the same formula used by the Federal Constitutional Court. However, that applicant had applied for the reinstatement of the proceedings within the statutory one-year period and thus the Court had not been in a position to exclude that the Federal Constitutional Court had based its decision not to accept the constitutional complaint on other grounds than tardiness. In the present case, however, the Federal Constitutional Court could not have ordered that the proceedings be reinstated and had been procedurally barred from deciding on the merits of the applicant's constitutional complaint.
b.	The applicant
The applicant argued that he had exhausted the domestic remedies available to him under German law. In particular, the Federal Constitutional Court had not refused to admit his constitutional complaint for having been lodged out of time; otherwise it would have had to decide on his application for the reinstatement of the proceedings. The present case was thus comparable to Starikow v. Germany, cited above. Furthermore, the one-year period to apply for the reinstatement of the proceedings following the Federal Court of Justice's decision of 31 August 2005 had elapsed on 
17 October 2006, a Monday. He, the applicant, had applied for the reinstatement of the proceedings in his letter of 16 October 2006 and had accordingly complied with the one-year period.
2.	The Court's assessment
The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. That rule is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law. Article 35 further provides for a distribution of the burden of proof. 
It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was accessible, was one which was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74 et seq., ECHR 1999‑V).
As held in the decision of 5 September 2005 by a Committee of three judges to dismiss the applicant's previous application to this Court for 
non-exhaustion of domestic remedies, a constitutional complaint to the Federal Constitutional Court was in the circumstances of the present case an effective remedy (compare, mutatis mutandis,  (dec.), no. 44911/98, 19 January 1999; 
Marchitan v. Germany (dec.), no. 22448/07, 19 January 2010). It therefore falls to the applicant to establish that he has exhausted this remedy. 
In Starikow v. Germany, cited above, the Court concluded that an applicant had exhausted domestic remedies in view of the use of the same formula by the Federal Constitutional Court.
The Court therefore turns to the Government's counter-argument that the present case should be distinguished from Starikow because the applicant in the present case had applied for the reinstatement of the proceedings after the statutory one-year period had already expired. It observes that the Government relied on the letter of the Registry of the Registry of the Federal Constitutional Court of 25 October 2006. Such a letter of the Registry of the Federal Constitutional Court does not qualify as a decision of that court (see Ovtscharov v. Germany (dec.), no. 74866/01, 
17 June 2004). In its decision of 20 March 2007 not to accept the applicant's constitutional complaint for examination, the Federal Constitutional Court did not refer to the letter of its Registry. Accordingly, the possibility that the Federal Constitutional Court based its decisions on other grounds than the ones mentioned in the letter of that court's Registry cannot be excluded. It is accordingly immaterial whether the applicant complied with the one-year period to apply for the reinstatement of the proceedings because the formula used by the Federal Constitutional Court makes it plain that it based its decision on grounds other than tardiness.
The Government have neither submitted nor could it have been verified on the basis of the Federal Constitutional Court's decision that it based its decision not to accept the applicant's constitutional complaint for examination on other grounds of inadmissibility under German law. 
The Government's plea of non-exhaustion must accordingly be dismissed.
B.	The Complaint under Article 6 §§ 1 and 3 (d)
The applicant complained that he was unable to examine witnesses against him at any stage of the proceedings. This complaint falls to be examined under Articles 6 §§ 1 and 3 (d). Article 6 § 1, as far as relevant here, is worded as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 6 § 3 (d) is worded as follows:
“Everyone charged with a criminal offence has the following minimum rights: ...
(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.
1.	The parties' submissions
a.	The Government's submissions
The Government conceded that the applicant had been unable to question or to have questioned the main witnesses against him after they had availed themselves of their right not to testify against the applicant. However, there had been no violation of Article 6 § 1 and 3 (d) since the criminal proceedings against the applicant as whole had been fair.
The restriction of the applicant's right to question the witnesses had been necessary. Pursuant to the case-law of the Federal Court of Justice, counsel should have been appointed for the applicant prior to the hearing of the witnesses by the investigating judge. The procedural error of not having appointed counsel already at the investigative stage had affected the fairness of the main proceedings. The Coburg Regional Court had sufficiently compensated the applicant for the impossibility of questioning the main witnesses. It had not based its findings of fact solely on the witnesses' testimonies as introduced by the investigating judge but had taken other corroborating evidence into account. It had further been aware that the evidentiary value of the investigating judge's testimony had been reduced because of the applicant's inability to question the main witnesses. 
The applicant's placement in a psychiatric hospital had therefore not been based solely or decisively on the statements of witnesses whom the applicant had been unable to question or have been questioned.
b.	The applicant's submissions
The applicant claimed that his rights under Article 6 §§ 1 and 3 (d) had been violated. The Government's argument that the applicant had been compensated for the inability to question key witnesses had no mooring in the text of the Convention or the Court's case-law. The applicant's placement in a psychiatric hospital had been based solely on the key witnesses' statements. A conviction based solely on corroborating evidence mentioned by the Regional Court would not have been safe.
2.	The Court's assessment
The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
	Claudia Westerdiek	Peer Lorenzen
	Registrar	President