Lexploria

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

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WIEDEMANN v. GERMANY

WIEDEMANN v. GERMANY

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