THE FACTS

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(1) See Yearbook, Volume VII, pages 280 and 288.

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Whereas the facts presented by the Applicant may be summarised as

follows:

The Applicant is a German citizen, born in 1927. In his first

Application (No. 2122/64) to the Commission, the Applicant complained

of his long detention pending trial. That Application was admitted by

the Commission (1) and is now pending before the Court.

The present Application concerns the Applicant's conviction and

sentence by the Regional Court (Landgericht) of Berlin. The Applicant

was tried by the Court between 9th November, 1964, and 7th April, 1965.

The Applicant states that, on 9th November, 1964, his counsel

challenged the Presiding Judge, Landgerichtsdirektor P, and an

Assistant Judge, Landgerichtsrat M, on apprehension of bias under

Article 24 of the Code of Criminal Procedure (Strafprozessordnung). The

memorial setting out the reasons for the challenge contained the

following passage:

"1. The accused Wemhoff has lodged an Application with the European

Commission of Human Rights, Strasbourg, on the grounds of the length

of his detention pending trial, which represents a gross violation of

the elementary principles of our legal order. The Commission has judged

that the Application is not manifestly ill-founded and is thus

admissible. There is therefore the possibility that it will find that

the long detention to which the accused has been subjected represents

a violation of the principles laid down in the Convention for the

Protection of Human Rights. Such a grave ruling would cause a

considerable sensation among the German public. The accused's

Application has already attracted considerable public attention, at the

time of the trial," (In this connection, reference was made to press

comments.)

"Should the Commission, the European Court of Human Rights or the

Committee of Ministers decide in the accused's favour, those among the

public who are interested would concentrate especial attention on the

persons primarily responsible for prolonging the accused's detention.

It is probable that the press, in particular, will ask how it is

possible in Germany for a court comprising several judges to take

repeated decisions which ignore the provisions of the Convention for

the Protection of Human Rights. It will be seen from the decisions of

the Criminal Chamber (Strafkammer) on detention dated 19th May, 9th

June, 7th July, 17th July and 16th October, 1964, that the judges

concerned considered the extraordinarily long period of detention to

be justified by the fact that the accused faced an unusually severe

prison sentence. From experience of the world it may be supposed that

the judges who gave the decisions will try, more or less unconsciously,

to justify them to themselves. If this were so they would have to

overcome considerable resistance within themselves before the idea of

acquitting the accused or giving him a short sentence could make any

headway. It cannot be ruled out that, with the judges in such a

psychological situation, any doubts as to the accused's guilt would to

some extent in spite of themselves, be overcome by the desire to impose

a prison sentence on him that would at least justify the length of

detention. At all events, even on a reasonable assessment of the facts

it is natural that the accused should, for these reasons, have doubts

about the freedom from bias of the judges challenged. The judges must

reckon with a favourable decision by the Committee of Ministers on the

Strasbourg Application and must comport themselves accordingly. In the

decision on detention dated 10th June, 1963, the judges of the Criminal

Chamber showed that they viewed a charge of violation of the Convention

as the gravest imaginable reproach against the judiciary, for that

decision contains the following passage:

'It is clear that the expression in the defendant's letter, "Justice

here in Berlin does what it likes, not what it is required to do by

law", is an insult to the Berlin judicial authorities, for there is no

assertion more calculated to endanger the reputation of the judiciary

than this one of the defendant's that it acts contrary to law; seeing

that the public, especially abroad, is, since the last war, suspicious

of German justice, and thereby of Berlin justice, this letter is

calculated to influence it.'"

It was also stated that the judges realised that a favourable decision

on the Strasbourg Application would reflect primarily on those judges

who had given the decisions on detention. "Thus their psychological

position is that of accused persons who see no salvation except in the

passing of a severe prison sentence on Wemhoff. The challenge is

directed particularly against the Presiding Judge, since he is bound

by law and by his own character to exercise a decisive influence on the

legal opinions of the 8th Great Criminal Chamber. Landgerichtsrat M is

challenged because of his share in the decisions on detention, with

which in any case he has identified himself."

The challenge, for which the above reasons were given, was rejected on

the following grounds:

"In the reasons given for his challenge the accused assumes that in the

decisions on detention Landgerichtsdirektor P and Landgerichtsrat M

knowingly, or at least on irrelevant grounds, infringed the law to his

detriment. However, his submission offers no factual evidence of this.

In fact these decisions were taken, or confirmed and reinforced, by

various judges and by the 1st Criminal Chamber (Strafsenat) of the

Court of Appeal (Kammergericht), the question whether the length of

detention violated the Convention on Human Rights having been examined

and answered in the negative. Moreover, the European Commission of

Human Rights has not yet reached a decision. There is no foundation

whatever for the accused's view that the decision is bound to be in his

favour."

The decision rejecting the challenge continues:

"In the circumstances the mere fact that all the decisions on this

point have been unfavourable to the accused Wemhoff cannot warrant his

assumption and his consequent apprehension of bias. Otherwise, in view

of the number of judges concerned in the decisions at various levels,

it would have to be supposed that the decisions were all deliberately

taken to the accused's detriment in conscious violation of the law. It

goes without saying that this view is far removed from any reasonable

view."

At the hearing on 8th March, 1965, the Applicant filed a further

challenge against the tree judges of the 8th Great Criminal Chamber.

In support of it he repeated his previous submissions on the subject

and in addition gave a series of facts which, in his opinion, justified

his conclusions concerning the judges' bias. He drew particular

attention to Article 6, paragraph (1), of the Convention on Human

Rights. This challenge too was rejected and the trial ended on 7th

April, 1965, with the pronouncing of judgment. The Applicant was

sentenced to six and a half years' penal servitude for a particularly

serious case of aiding and abetting breach of trust (Beihilfe zur

Untreue in einem besonders schweren Falle). He appealed against this

judgment to the Federal Court (Bundesgerichtshof) and, in the memorial

of 26th July, 1965, stating the grounds of the appeal

(Revisionsbegründung) he invoked Article 338, No. (3), and Article 24

of the Code of Criminal Procedure. It was also alleged that Article 6,

paragraph (1), of the Convention had been violated, in particular in

view of the fact that the Applicant's challenge of 8th March, 1965, had

been rejected on the ground that it had been heard on the facts. The

grounds of appeal contained the following passage:

Even if the hearing of the accused Gericke would not be considered by

the Federal Court as a hearing on the facts within the meaning of

Article 25 of the Code of Criminal Procedure, the rejection of the

challenge was legally incorrect. Under Article 6, paragraph (1), of the

Convention on Human Rights the accused Wemhoff is entitled to a fair

hearing by an independent and impartial tribunal.

This principle, which is fundamental to the procedural law of any

constitutional State, was implemented only imperfectly in the German

Code of Criminal Procedure until the Act Amending the Code of Criminal

Procedure and the Judicature Act came into force on 1st April, 1965.

The Convention for the Protection of Human Rights makes it clear that

the Court's independence is not to be confused with impartiality. In

this respect Schwarz-Kleinknecht's commentary on Article 6 of the

Convention (note 7) is misleading, since Article 97 of the Basic Law

(Grundgesetz) and Article 1 of the Judicature Act

(Gerichtsverfassungsgesetz) only provide for the judges' personal and

material independence and have nothing to say about the principle of

impartiality. Until the Convention came into force this problem was

dealt with definitely in Articles 23 et seq. of the Code of Criminal

Procedure. Article 25 of the Code placed an important formal limitation

on the principle of impartiality, challenge of a biased Court only

being admissible up to a certain stage in the proceedings. If

partiality occurred or became apparent after the end of the hearing on

the facts the accused was not entitled to challenge the Court. This

limitation ceased to exist when the Convention came into force, if not

before, since Article 6 of the Convention guarantees the accused's

right to an impartial tribunal without any reservation, up to the very

close of proceedings. If we accept that a right that is guaranteed also

provides the means necessary to its realisation, and that the

elimination of a biased judge from any share in the decision is the

sole imaginable way of ensuring the principle of impartiality, it

necessarily follows that the accused was entitled to challenge biased

judges at any stage in the proceedings, since under the Convention,

particularly Articles 5 et seq., it must be presumed that absolute

constitutional principles shall apply. The fact that the temporal

limitation imposed by the old version of Article 25 of the Code of

Criminal Procedure had ceased to meet constitutional (rechtsstaatliche)

requirements is clear from the amended version, in which the limitation

is abolished. The new version is therefore simply a rule for the

execution of Article 6 of the Convention; but since the Convention was

directly applicable law even before the amending Act came into force,

it has no bearing on the admissibility of the challenge that, under the

transitional provisions, the new version of Article 25 of the Code was

not to apply to pending proceedings. Moreover, the transitional

provisions should not be taken as meaning that Article 6, paragraph

(1), of the Convention was to become partially inapplicable but rather

that the effect of the new version of Article 25 of the Code was to be

delayed.

"This being so, after the Convention came into force the sole remaining

effect of the old version of Article 25 was to reduce the burden of

proof on the accused, since in order to get rid of a judge it was not

necessary to furnish full evidence of his partiality. It was sufficient

for a challenge that the accused did in fact appear to have some

personal apprehension that the judge would not be impartial. For under

the general rules of evidence it must be assumed that there are grounds

for challenge under Article 6, paragraph (1), of the Convention only

if the judge's bias is established, that is to say, on the basis of the

facts, it is no longer reasonably possible to doubt his partiality."

The Applicant's appeal was rejected by the Federal Court on 17th

December, 1965, following an oral hearing. In its judgment, the Court

stated inter alia:

"The grounds for rejection of the challenge(s) of 7th (9th) November,

1964, ... clearly stand up to legal re-examination on all points.

The Appellant's challenge of 4th March, 1965 was also rightly rejected

as inadmissible, for the following reasons:

1. The interrogation of all the accused on the facts (as provided in

Article 25 [old version] of the Code of Criminal Procedure) was

concluded on 18th January, 1965. This is clear both from the minutes

of the trial (Sitzungsniederschrift) and from the Appellant's

application of 4th March, 1965 and the pleadings on appeal. According

to these, Gericke, another of those convicted (and only he) was 'again

questioned closely on his motives and on the influence to which he had

been subject' (see copy of the grounds of appeal pages 67 below and 68

below). The representations (Vorhalte) made and questions put to

Gericke did not constitute a further investigation of the facts. For

both in the context of Article 257 of the Code of Criminal Procedure

and, more generally, in the interests of proper conduct of the trial

it is often necessary in bigger cases to hear an accused person again

'on his motives' in the light of the evidence so far obtained. It

usually happens that the trial judge confronts the accused with the

testimony heard or the contents of documents read. This does not

signify a new interrogation on the facts within the meaning of Article

25 (old version) of the Code of Criminal Procedure. Thus it is clear

that the hearing of the accused, which had been interrupted several

times (for the taking of evidence) ended before 4th March, 1965.

The reference in the appeal to Decision BGHSt 18, 46 et seq. is

therefore not to the point in this context. That decision concerns a

further, not a repeated, interrogation on the facts.

2. The contention in the appeal that Article 25 (old version) of the

Code of Criminal Procedure conflicts with the spirit of the European

Convention for the Protection of Human Rights and was therefore

invalidated by Article 6 of the Convention before the Act Amending the

Code of Criminal Procedure and the Judicature Act was promulgated is

also of no avail.

This contention is not correct. Apart from this fact, none of the (29)

circumstances mentioned in the challenge are such as to prove the

Court's 'partiality'; a mere apprehension of partiality is not

sufficient for the purpose."

The Applicant submits that the judgment given by the Regional Court of

Berlin on 7th April, 1965, and that of the Federal Court of 17th

December, 1965, violated Article 6, paragraph (1), of the Convention

as he was sentenced by a Court that, for the reasons explained above,

was not able to judge his case impartially.

THE LAW

Whereas the Applicant alleges a violation of Article 6, paragraph (1)

(Art. 6-1), of the Convention which states that, in the determination

of any criminal charge against him, everyone is entitled to a hearing

by an "impartial tribunal"; and whereas, in support of this complaint,

the Applicant presents extracts from his pleadings before the German

courts relating to Articles 24 and 25 of the Code of Criminal

Procedure;

Whereas, however, it results from the Applicant's own submissions that

these provisions are essentially different from Article 6, paragraph

(1) (Art. 6-1), of the Convention; and whereas the Applicant himself

points out that the evidence required for the challenge of a judge

under Article 24 of the German Code of Criminal Procedure is not

sufficient to show a violation of the relevant provision of Article 6,

paragraph (1) (Art. 6-1), of the Convention;

Whereas, further, in support of his present complaint under Article 6,

paragraph (1) (Art. 6-1), the Applicant does not maintain, and adduces

no evidence to suggest, that the judges of the Regional Court of Berlin

failed to act impartially in his case; whereas, in particular, he does

not complain that they adopted towards him a hostile or biased attitude

at the trial, or that they otherwise conducted his trial unfairly; or

that his conviction was arrived at by any reasoning not based on the

evidence before the Court; or, finally, that his sentence was of a

length from which it could be reasonably inferred that the length of

detention pending trial had influenced its determination;

Whereas, instead, the Applicant invites the Commission to accept a

grave imputation against the judges of the Regional Court, and of the

Federal Court, on a mere speculative inference;

Whereas it follows that his complaint under Article 6, paragraph (1)

(Art. 6-1), is manifestly ill-founded within the meaning of Article 27,

paragraph (2) (Art. 27-2), of the Convention.

Now therefore the Commission declares this Application inadmissible.