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FIFTH
SECTION
CASE OF
LITWIN v. GERMANY
(Application
no. 29090/06)
JUDGMENT
STRASBOURG
3 November
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Litwin v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann, President,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Ann
Power-Forde,
Angelika Nußberger, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 11 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29090/06)
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
stateless person, Mr Günther Paul Litwin (“the
applicant”), on 14 May 2004.
2. The
applicant was represented by Mr T. Schmidt, a lawyer practising in
Giessen. The German Government (“the Government”)
were represented by their Agent, Mrs A. Wittling-Vogel, of the
Federal Ministry of Justice.
3. The
applicant alleged, in particular, that he had been denied access to
the appeal courts, contrary to Article 6 § 1 of the Convention.
- On
29 March 2010 the President of the
Fifth Section decided to give notice of the application to the
Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in Fulda.
- On
23 February 2000 the applicant was arrested on suspicion of having
committed robberies. He was detained pending trial. The trial, at
which he was represented by counsel, began on 19 October 2000. At the
end of the fifth day of the trial, and after evidence had been heard,
the court set the next trial hearing for 17 November 2000 at 9 a.m.
According to the court transcript, the trial only started at 10 a.m.
on that date.
- On
17 November 2000 between 9 a.m. and 10 a.m. negotiations took place
inside the court building, the content of which are in dispute
between the parties.
- According
to the applicant’s submissions, the court, having previously
indicated that the potential penalty that the applicant faced could
amount to fourteen years’ imprisonment, promised a maximum
penalty of nine and a half years’ imprisonment
in exchange for the applicant’s waiver of his right to appeal,
as well as a waiver of the applicant’s and his wife’s
claims over confiscated assets and an agreement that he would not
call for further evidence.
- According
to the Government, the public prosecutor did not take part in the
agreement reached. The court, following a proposal made by the
applicant’s counsel, promised a penalty of less than ten years’
imprisonment in exchange for the applicant’s waiver of claims
over confiscated assets.
- According
to the court transcript of the hearing on 17 November 2000, which
makes no mention of the agreement, further documents were then read
out, the presiding judge gave legal advice as to the qualification of
the alleged offences and both the applicant and his wife, who was
present in the courtroom, declared that they waived any rights to the
assets confiscated by the prosecution service.
- At
the end of the hearing, the Fulda Regional Court convicted the
applicant of aggravated extortion, aggravated robbery and attempted
aggravated robbery (two counts of each offence) and dangerous bodily
injury (one count) and sentenced him to nine-and-a-half years’
imprisonment. The court, stating that the applicant had not entered a
plea, based its findings on DNA expert evidence pointing to a high
probability that the applicant had been the person that had caused
marks found at the crime scenes and on further circumstantial
evidence derived, in particular, from witness testimony. The court
considered the fact that the applicant had eventually waived his
right to the confiscated assets and had thus delivered a major
proportion of his criminal profits as a mitigating factor.
- After
delivery of the judgment, the court verbally informed the applicant
of his right to lodge an appeal on points of law. In the applicant’s
presence, counsel for both the defence and the prosecution waived
their rights to appeal.
- The
applicant subsequently appointed new counsel. On 12 April 2001 the
applicant’s new counsel applied for restitution of the status
quo ante and lodged an appeal on points of law, arguing that the
waiver of the right to appeal had been invalid because it had not
complied with the requirements of the Federal Court of Justice’s
case-law. As the applicant had not been aware of the invalidity of
his waiver, he could not be held responsible for having failed to
comply with the statutory time-limit of one week for lodging an
appeal on points of law. In a written statement attached to the
application, the applicant submitted that his previous counsel had
informed him that he would have to expect the imposition of a prison
sentence of at least fourteen years if he did not accept the court’s
proposal and that he was only informed about the invalidity of the
waiver during a first conversation with his new counsel which took
place on 10 April 2001.
- In
pleadings dated 10 May 2001 counsel specified the grounds of appeal
on points of law. He complained that the negotiated agreement had not
been recorded in the court transcript, as required by the case-law of
the Fourth Chamber of the Federal Court of Justice (see paragraph 19
below). In his view, this constituted a breach of the principle of a
public hearing. He also argued that the actual waiver of the right to
appeal had been declared before delivery of the judgment –
namely when negotiating the agreement – and had been invalid
for this reason as well.
- On
11 June 2001 the Second Chamber of the Federal Court of Justice (file
no. 2 StR 223/01) dismissed the applicant’s request for
restitution of the status quo ante and rejected his appeal on
points of law as inadmissible. Relying on its own settled case-law,
the court observed that a waiver of the right to appeal could not be
revoked, rescinded or withdrawn. The Court of Justice did not find it
necessary to establish whether the waiver had been part of a
negotiated agreement, as this fact did not call into question the
validity of the waiver as such. The waiver had to be measured by
different standards: notably, whether the accused had retained the
freedom to either accept a judgment against him or lodge an appeal
had to be verified. This freedom had to be preserved, even if the
judgment had been based on an objectionable agreement and the waiver
had constituted honouring such an agreement. Notwithstanding any
procedural defect in the alleged agreement, the accused may have
pursued his interests in an autonomous and appropriate way. The only
decisive factor was whether the accused had been unduly influenced
when waiving his right to appeal. In the present case, there was no
indication that there had been such undue influence. The applicant’s
submissions neither disclosed an error or misunderstanding on the
applicant’s part, nor any deceit or false information given by
the court, nor any impairment of the interests of the defence.
- The
court further considered that, as a result of the valid waiver of the
right to appeal, the Fulda Regional Court’s judgment had become
legally binding on 17 November 2000 and that the appeal on points of
law thus had to be rejected as inadmissible. It followed that the
applicant could not be granted restitution of the status quo ante.
If a person had knowingly waived a right to appeal, he had not been
“prevented from observing a time-limit” within the
meaning of Article 44 § 1 of the Code of Criminal Procedure. The
decision was served on the applicant’s counsel on 5 July 2001.
- On
3 August 2001 the applicant lodged a constitutional complaint,
claiming that he had been unduly influenced when waiving his right to
appeal in exchange for a maximum penalty of nine-and-a-half years’
imprisonment. Furthermore, the Federal Court of Justice had failed to
consider the fact that his wife, who had not been involved in the
trial, had also been asked to waive any rights she had to the
confiscated assets. This procedural method had been arbitrary, had
not been in accordance with the statutory provisions governing the
confiscation of assets in criminal proceedings and had also
constituted a violation of the right to an effective remedy. On 20
November 2003 the Federal Constitutional Court (file no. 2 BvR
1339/01), relying on the relevant provisions of its rules of
procedure, refused to admit the constitutional complaint for
examination without giving further reasons. This decision was served
on the applicant’s counsel on 4 December 2003.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Criminal Procedure
- Relevant
provisions:
Section 44
“If a person was prevented from observing a
time-limit through no fault of his own, he shall be granted
restitution of the status quo ante upon application. ...”
Section 45
“(1) The application for restitution of the status
quo ante shall be filed with the court where the time-limit
should have been observed within one week after the reason for
non-compliance no longer applies. To observe the time-limit, it shall
be sufficient for the application to be filed in time with the court
which is to decide on the application.
...”
Section 257c
“(1) In suitable cases the court may,
in accordance with the following subsections, come to an agreement
with the other parties to the proceedings regarding the further
progress and outcome of the proceedings. ...
(2) The subject matter of such an agreement
may only comprise the legal consequences which could form part of the
judgment and of the associated rulings, other procedural measures
related to the proceedings, and the conduct of the parties. The
verdict and measures of correction and prevention may not be the
subject of an agreement.
(3) The court shall announce what content the
agreement might have. In this context, it may ... also indicate an
upper and lower limit of the sentence.
...”
Section 302 (old version)
“(1) Withdrawal of an appeal, as well
as waiver of the right to lodge an appeal, may also take effect
before expiry of the time-limit for filing. ...
(2) Defence counsel shall require express
authorisation for such withdrawal.”
Section 302 (new version)
“(1) Withdrawal of an appeal, as well
as waiver of the right to lodge an appeal, may also take effect
before expiry of the time-limit for filing. If a negotiated agreement
(Section 257c) has preceded the judgment, a waiver shall be excluded.
...
(2) Defence counsel shall require express
authorisation for such withdrawal.”
Section 341
“(1) The appeal on points of law shall
be filed with the court whose judgment is being contested, either
orally to be recorded by the registry or in writing, within one week
after pronouncement of judgment.”
B. Conflicting case-law of the different Chambers of
the Federal Court of Justice at the time of the judgment in the
instant case
19. There
has always been agreement between the Chambers of the Federal Court
of Justice that agreements with a view to terminating criminal
proceedings are not per se inadmissible. It has also been
accepted that a waiver of the right to appeal should not be
negotiated in the context of such an agreement and that such a waiver
is not legally binding on the defendant. However, the Chambers have
differed on the question of the consequences of such a waiver if a
defendant has nevertheless promised to grant the waiver and has made
a declaration that he or she will do so to the trial court.
The
First and Second Chambers have held that a waiver of the right to
appeal is not invalid simply because it formed – though
inadmissibly – part of an agreement between the court, the
prosecution and the defence. Rather, it has only been considered to
be invalid if the procedural defect led to undue influence at the
time the waiver was declared.
The
Third,
Fourth and, since 2003, Fifth Chambers have found a waiver of the
right to appeal, which has been the subject of an agreement with a
view to terminating criminal proceedings, to always be invalid. They
have held that a promise not to lodge an appeal, made before delivery
of a judgment, albeit not legally binding, always constitutes undue
influence on the accused.
C. Decision of the Grand Chamber of the Federal Court
of Justice
- In
a leading decision of 3 March 2005, the Grand Chamber of the Federal
Court of Justice laid down the principles governing the validity of a
waiver of the right to appeal in the context of agreements entered
into with a view to terminating criminal proceedings (file no. GSSt
1/04). It considered such agreements, in which the criminal courts
make a binding declaration on the maximum penalty to be imposed in
exchange for the defendant’s confessing to (part of) the
offences he has been charged with, to be compatible with the Code of
Criminal Procedure and the Basic Law if certain conditions are met.
- In
particular, all participants in the proceedings (that is,
professional and lay judges, the prosecution, the defence counsel and
the defendant) must be involved in reaching the agreement, the result
of which must be made public at a hearing and must be duly noted in
the court transcript. The veracity of any confession made by the
defendant in accordance with the agreement must be verified. The
agreement is not allowed to concern the legal qualification of the
acts the defendant has been charged with. The penalty proposed by the
court still must reflect the defendant’s guilt and the penalty
which, according to the court, could be expected without a confession
may not be disproportionately severe in order to subject the
defendant to undue pressure to confess. The court is only allowed to
agree a maximum penalty (as opposed to a specific penalty) and may
only exceed that penalty if relevant factual or legal issues have
been overlooked and if it has previously advised the defendant at a
hearing of its intention to set a higher penalty. The Federal Court
of Justice noted that in view of their heavy workload, the courts
would be unable to render criminal justice and to avoid delays in
proceedings without being allowed to have recourse to such
agreements.
- The
Federal Court of Justice further observed that in the past, such
agreements had in practice often involved the defendant’s
promise to waive his right to appeal against the judgment, or at
least the court’s suggestion to do so. However, the criminal
courts were not authorised, in the context of these agreements, to
arrange for a waiver of the right to appeal. An agreement aimed at
terminating the proceedings was not to prevent the effective review,
by the appeal courts, of the lower courts’ judgments. After the
delivery of a judgment which was given following an agreement –
irrespective of whether a waiver of the right to appeal had been
included or discussed – the court therefore had to inform the
defendant not only of his right to appeal, but also of the fact that
he was free to lodge an appeal irrespective of the agreement reached
(what is termed a qualified instruction). If such a qualified
instruction had not been given, the defendant’s waiver of his
right to appeal was void.
- These
guidelines of the Federal Court of Justice have meanwhile been
incorporated in Sections 257c and 302 of the Code of Criminal
Procedure (see paragraph 18 above).
THE LAW
I. COMPLAINT OF RESTRICTION OF ACCESS TO THE APPEAL COURTS
- The
applicant complained of the restriction of his
right of access to the appeal courts as a result of his –
allegedly invalid – waiver of the right to appeal. He relied on
Article 6 § 1 of the Convention, which, in so far as relevant,
reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested that argument.
A. Admissibility
1. The Government’s submissions
- The
Government submitted that the application was inadmissible for
failure to comply with the six-month time-limit (Article 35 § 1
of the Convention). They observed that the six-month time-limit
following the decision of the Federal Constitutional Court had ended
on 4 June 2004. It followed that the application had been lodged
within the time-limit if the date on the application form of 14 May
2004 was accepted. The Government observed, however, that according
to the Court’s statement of facts, the introduction of the
application was dated 12 July 2006. Should the discrepancy between
the date on the application form and the date quoted in the statement
of facts have been due to the applicant’s own negligence, the
applicant had to be regarded as having failed to observe the
time-limit.
- The
Government further considered that the applicant had failed to
exhaust domestic remedies within the meaning of Article 35 § 1
of the Convention. Relying on the Court’s case-law, in
particular in the case of Floquet v. Germany (dec.), no.
50215/99, 9 February 2006, the Government submitted that the present
complaint was inadmissible because the applicant had neither lodged
his appeal on points of law nor his request for restitution of the
status quo ante within the relevant statutory time-limits.
2. The applicant’s submissions
- The
applicant contested these arguments. He submitted that he had posted
his complaint to the Court in time and that he had submitted all
relevant documents to the Court on 6 August 2004.
- The
applicant further submitted that he had been prevented from lodging
his appeal on points of law within the statutory time-limit, because
his previous counsel had repeatedly and against his better judgment
told him that he did not have the right to lodge an appeal.
Furthermore, he had been purposefully misled by the trial court. He
had only learned on 10 April 2001 through his new counsel that the
waiver of the appeal had been invalid.
3. Assessment by the Court
- The
Court notes that the final decision of the Federal Constitutional
Court was served on the applicant’s counsel on 4 December 2003.
The applicant submitted the application form on 14 May 2004 and thus
within the six month time-limit. He furthermore submitted all
documents requested by the Court on 6 August 2006, as documented by
the Court’s stamp of receipt. It follows that the instant
complaint is not inadmissible for having been lodged outside the
six-month time-limit.
- With
regard to the Government’s objection of non-exhaustion of
domestic remedies, the Court observes that the Federal Court of
Justice, in its decision dated 11 June 2001, did not reject the
applicant’s appeal on points of law for failure to comply with
statutory time-limits, but on the grounds that the judgment had
become legally binding because of the applicant’s waiver of his
right to appeal. On the same grounds, the Federal Court of Justice
rejected the applicant’s request for restitution of the status
quo ante. The applicant contested these findings before the
Federal Constitutional Court, alleging that the waiver of the appeal
had been invalid. In his application to the Court, the applicant
pursued the same complaint under Article 6 of the Convention. It
follows that the applicant cannot be regarded as having failed to
exhaust domestic remedies in this respect.
- The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention and
that it is not inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
1. The applicant’s submissions
- The
applicant submitted that the trial court had
exercised undue pressure on him in order to induce him to waive his
right to appeal. The court had, in particular, declared that it would
sentence him to fourteen years’ imprisonment if he rejected the
agreement, which had included the waiver of the right to appeal. The
agreement reached between the applicant, the prosecution and the
Regional Court had been invalid, because it had not complied with the
requirements set forth by the Federal Court of Justice. Amongst other
things, it had violated the principle of a public hearing because it
had been concluded outside the main hearing and its content had not
been read out in court and recorded in the court transcript.
Referring to a number of documents submitted in proceedings
instituted after the termination of the relevant criminal
proceedings, the applicant alleged that the public prosecutor had
taken part in the deliberations concerning the agreement and that the
submissions made by the Government as to the conduct of the
negotiations were contradictory.
- The
said agreement had been invalid. The applicant had not been willing
to confess and to accept his conviction, but had acted only under the
threat of a fourteen-year prison sentence. He had not had an
opportunity to consult his counsel before the latter had declared the
applicant’s waiver of the right to appeal. The Regional Court
and the public prosecutor had knowingly misled the applicant as to
the legal effects of the waiver of rights over the confiscated
assets. Furthermore, the applicant’s defence counsel had not
been entitled to waive the applicant’s wife’s rights over
the confiscated assets. The waiver of rights over the assets had been
disproportionate, as the confiscated values had exceeded the damage
allegedly caused by the applicant. Contrary to the assurances given
by public prosecutor, the assets had not been used to compensate
damage caused, but rather to cover the costs of the judicial
proceedings.
2. The Government’s submissions
- The
Government contested these submissions. According to the statements
made by the relevant judges of the Regional Court, the applicant’s
counsel had offered to waive the applicant’s and his wife’s
rights over the confiscated assets in exchange for a sentence of less
than ten years’ imprisonment. When asked in 2010, the judges
had not been able to remember having discussed a waiver of the right
to appeal. The Regional Court had not declared its intention to
sentence the applicant to fourteen years’ imprisonment in the
event that he did not enter into an agreement. They further contested
the assertion that the agreement had contained a waiver of the
applicant’s right to call for further evidence. In any event,
the Government submitted that the applicant had failed to raise these
issues in his complaint before the Federal Constitutional Court.
- According
to the Government, the applicant had acted according to his free and
voluntary decision when waving his right to appeal. After the
delivery of the judgment and before the declaration of the waiver of
the right to appeal, the applicant had been explicitly informed of
his right to lodge an appeal. He had thus been able to freely decide
whether to lodge an appeal or not. There was no indication that the
court had exerted undue pressure on the applicant or that there had
been any deception or conscious misleading of the applicant. The fact
that the Federal Court of Justice and the legislator had, at a later
date, changed the rules concerning the validity of a waiver of appeal
following an agreement in criminal proceedings did not imply that the
former practice had violated the applicant’s Convention rights.
3. Assessment by the Court
- Relying
on the principles emerging from its relevant case-law (see Thind
v. Germany (dec.), no. 16771/06, 23 March 2010;
Transado Transportes Fluviais Do Sado S.A. v. Portugal
(dec.), no. 35943/02, ECHR 2003 XII; Pfeifer and
Plankl v. Austria, 25 February 1992, Series A no. 227; and Zu
Leiningen v. Germany (dec.), no. 59624/00, ECHR 2005 XIII)
the Court reiterates that the waiver of a procedural right – in
so far as it is permissible under the Convention – must be
established in an unequivocal manner. Moreover, such waiver, in order
to be effective for Convention purposes, requires minimum guarantees
commensurate to its importance. The Court further considers that the
waiver of a right to appeal is, in principle, permissible if the
principles mentioned above are adhered to.
- The
Court further observes that it appears to be a common feature of
European criminal justice systems for a defendant to receive a
reduction in his or her sentence for a guilty plea in advance of
trial or for providing substantial co-operation to the police or
prosecution (for examples from the Court’s own case-law, see
the references given in Babar Ahmad and others v. the United
Kingdom (dec.), nos. 24027/07, 119494/08 and 36742/08, § 168,
6 July 2010). The Court has already stated that there is nothing
unlawful or improper in that process which would in itself raise an
issue under the Convention (see Babar Ahmad, cited above,
ibid.). The Court further considers that it is not its task to
examine in this context whether the agreement complied with the
prerequisites laid down in domestic law, as the observance of their
procedural rules falls within the primary competence of the domestic
courts.
- Turning
to the circumstances of the instant case, the Court observes that
counsel for the applicant, following pronouncement of the judgment
and having been informed of the right to appeal, declared the waiver
of the applicant’s right to appeal. There is no indication that
the applicant, who was present when the waiver was declared, would
have been prevented from consulting with his counsel prior to the
declaration if he had wished to do so. There is thus no indication
that the declaration of the waiver itself raised an issue under
Article 6 of the Convention.
- It
remains to be determined whether the negotiations which had taken
place before the last day of the hearing put the validity of the
waiver into question from a Convention point of view. While both
parties agree that certain talks had taken place between the
applicant’s counsel, the public prosecutor and the court, the
precise content of these negotiations are in dispute between the
parties. Both parties unanimously submitted that the applicant and
his wife had promised a waiver of their rights over the confiscated
assets in exchange for a sentence of less than ten years’
imprisonment. However, the Government contested the applicant’s
allegations that the agreement had also contained an obligation on
the applicant to waive his rights to call further evidence and to
lodge an appeal. Furthermore, while the Government submitted that
negotiations were started on the applicant’s counsel’s
initiative, the applicant submitted before the Court that the
Regional Court had initiated negotiations by informing him that they
would impose a penalty of at least fourteen years’ imprisonment
if he did not enter into an agreement.
- The
Court notes that the applicant, in his submissions before the Federal
Court of Justice and to the Federal Constitutional Court, did not
submit that the Fulda Regional Court had informed him that he could
expect a minimum sentence of fourteen years’ imprisonment if he
did not accept the terms of agreement allegedly proposed by that
court. In a declaration submitted to the Federal Court of Justice,
the applicant had merely declared that his former counsel had
informed him to expect such an outcome in the absence of an
agreement, which does not necessarily imply that this information was
given by the Regional Court’s judges. Furthermore, the Court
notes that the applicant did not mention before the Federal Court of
Justice and the Federal Constitutional Court that the agreement had
contained an obligation on him to waive his right to call further
evidence.
- The
Court further notes that the Regional Court’s judges, in their
written statements submitted by the Government in the instant
proceedings, could not remember whether the agreement contained a
promise by the applicant to waive his right to appeal. The Court
takes note that the applicant submitted numerous documents deriving
from subsequent domestic court proceedings in an attempt to support
his allegations. However, none of those documents had been submitted
before the Federal Court of Justice or the Federal Constitutional
Court.
- In
the absence of any written record of the terms of agreement, and
having regard to the period of time which has elapsed since the
relevant facts occurred, the Court considers that it is not in a
position to establish the precise content of the agreement reached
between the parties. The Court observes, however, that the applicant
did not expressly submit to the domestic courts that the Regional
Court had informed him that he could expect a minimum sentence of
fourteen years’ imprisonment absent a negotiated agreement, or
that the agreement contained the obligation to waive his right to
call further evidence. The Court notes that the Federal Court of
Justice based its decision on the applicant’s appeal on points
of law on the assumption that the waiver of the right to appeal
formed part of the agreement negotiated between the parties.
- Having
regard to the above considerations, the Court will pursue its
examination on the assumption that the agreement contained the
applicant’s obligation to waive his rights over confiscated
goods and his right to lodge an appeal, but that it did not contain
any obligation not to call further evidence. Conversely, the Court
will not take into account the applicant’s allegations that the
Regional Court had indicated that he would receive a minimum sentence
of fourteen years’ imprisonment in the absence of an agreement,
as these allegations had not been raised before the domestic courts.
- The
Court notes that the applicant’s counsel, in the applicant’s
presence, declared the waiver of the right to appeal on behalf of the
applicant after negotiations had been terminated and after the
Regional Court had pronounced its sentence. It follows that the
applicant knew the sentence imposed on him before the waiver was
declared. There is, furthermore, no concrete evidence that the
applicant had been misled as to the legal effects of a waiver of the
right to appeal.
- The
Court further observes that the criminal conviction was not based on
a confession made by the applicant, but on evidence which had been
taken by the Regional Court before entering into negotiations on an
agreement. The applicant did not submit before the domestic courts
that he had had any intention to call for further evidence.
Furthermore, the applicant had been verbally informed by the trial
court about his right to lodge an appeal, even though it appears that
this did not include information that he was free to lodge an appeal
irrespective of the agreement reached (as required after the ruling
given by the Federal Court of Justice on 3 March 2005, see paragraph
20 above).
- The
Court further observes that the applicant was represented by counsel
of his choice when declaring the waiver of his right to appeal and
throughout the proceedings as a whole. It further notes that,
according to the Federal Court of Justice’s case-law already
applicable at that time, a promise of a waiver of the right to appeal
given during negotiations was not legally binding on a defendant.
There is no apparent reason why the applicant’s defence counsel
should not have been aware of this case-law when declaring the waiver
of the right to appeal. The Government cannot be held liable for any
shortcomings on the part of the applicant’s counsel (compare
Sejdovic v. Italy [GC], no. 56581/00, § 95, ECHR
2006 II).
- The
foregoing considerations are sufficient to enable the Court to
conclude that there were sufficient procedural safeguards in place in
order to ensure that the applicant was not unduly influenced when
waiving his right to appeal.
- There
has accordingly been no violation of Article 6 of the Convention.
II. COMPLAINT ABOUT THE LENGTH OF THE CRIMINAL PROCEEDINGS
-
The applicant complained that the length of the
proceedings had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of ... any
criminal charge against him everyone is entitled to a ... hearing
within a reasonable time by [a] ... tribunal...”
- The
period to be taken into consideration began on 23 February 2000, when
the applicant was arrested and ended on 4 December 2003, when the
decision of the Federal Constitutional Court was served on the
applicant. It has thus lasted 3 years and 9 months for three levels
of jurisdiction. The Court, having regard to the criteria established
in its case-law (see, among many other authorities,
Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II) considers that
the overall length of the proceedings can be regarded as reasonable.
It follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained of the failure of the Federal
Constitutional Court to reason its decision and of the lack of a
public hearing regarding the negotiation of the agreement with a view
to terminating the criminal proceedings. He also claimed that the
waiver of his rights to the confiscated goods had violated the
presumption of innocence (Article 6 § 2). Under Article 14 he
complained that his waiver of the right to appeal would have been
held to be invalid had his appeal on points of law been reviewed by a
different Chamber of the Federal Court of Justice. Citing Article 1
of Protocol No. 1 to the Convention, the applicant also complained of
the alleged content of the agreement and of his wife’s waiver
of any rights to the confiscated goods.
- The
applicant submitted that the proceedings, seen as a whole, had to be
regarded as unfair because the Regional Court had violated the
principles of a public hearing, the protection of confidentiality and
the court’s obligation to examine relevant facts on its own
motion. The Regional Court’s judgment had been based on
insufficient and inconclusive evidence which had not been properly
introduced into the proceedings, a fact which he had only learned of
later on when he had been granted access to the case files.
Furthermore, the public prosecutor had omitted to introduce relevant
evidence into the proceedings, thus violating the principle of
equality of arms.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
restriction of access to the appeal courts admissible and the
remainder of the application inadmissible;
- Holds that there has been
no violation of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 3 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean
Spielmann
Registrar President
