FIFTH SECTION

DECISION

Applications nos . 4211/12 and 5850/12 Ahmet BEZEK against Germany and Sinan BEZEK against Germany

The European Court of Human Rights ( Fifth Section ), sitting on 21 April 2015 as a Chamber composed of:

Mark Villiger , President, Angelika Nußberger , Boštjan M. Zupančič , Vincent A. D e Gaetano , André Potocki , Helena Jäderblom , Aleš Pejchal , judges,

and Milan Bla Å¡ ko , Deputy Section Registrar ,

Having regard to the above applications lodged on 13 January 2012 and 21 January 2012 respectively,

Having deliberated, decides as follows:

THE FACTS

1. The applicants are Turkish nationals. The applicant in the first case, Mr Ahmet Bezek , was born in 1980 and is represented before the Court by Mr U. Sommer , a lawyer practising in Cologne . The applicant in the second case, Mr Sinan Bezek , was born in 1976 and is represented before the Court by Mr G. Bogatz , a lawyer practising in Bendestorf . Both applicants are currently serving a prison sentence in Bremen.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. In the night of 5/6 January 2006 a shooting took place in front of a nightclub in the Bremen entertainment district which left several persons seriously injured.

1. Criminal proceedings against G. L.

4. On 11 December 2007 a Chamber of the Bremen Regional Court, consisting of the presiding judge S., the judge P., one further professional judge a nd two lay judges, convicted G. L. of attempted manslaughter, grievous bodily harm and unlawfully carrying a firearm and sentenced him to ten years and six months imprisonment.

5. Based on G.L. ’ s confession, which was supported by witness evidence, the Chamber considered that G.L. had started the shooting into a group of people standing in front of the night club, thereby accepting that he might inflict lethal injuries. The Chamber d id not attach credibility to G. L. ’ s submissions that the applicants had not been involved in the shooting i ncident, but considered that G. L. had committed the offences jointly with the two applicants. Based on witness evidence and an expert examination of bullets found on the site, the Chamber considered that the first applicant had fired at least three shots and the second applicant at least one shot. The Chamber considered that G. L. and the applicants had acted upon a joint plan, resulting in each perpetrator being liable for the acts committed by his accomplices under Article 25 § 2 of the Criminal Code as joint principals ( Mitt ä terschaft , see relevant domestic law, below).

6. The judgment, which was 151 pages long, inter alia contained the following references to the applicants:

“All three of them [G.L. and the two applicants] had been equipped with firearms. It was clear to them – even without an express agreement, that they would make use of the weapons they carried if the situation should arise....At that time at the latest witness Ahmed Bezek [the first applicant] carried a silver revolver with a 9 mm calibre and Sinan Bezek [the second applicant] a pistol, calibre 7.65 mm, which had been assembled from various weapon parts (p. 34 of the judgment)...Immediately after the accused had fired the first shot, Ahmet and Sinan Bezek drew their weapons and fired in the direction of the B.club (p. 36)...many persons...found themselves within the shooting r ange of the applicant and of Ahmed and S inan Bezek (p. 37)...their [the witnesses ’ ] statement is supported by the fact that the accused and the Bezek brothers [the applicants] actually carried weapons (p. 78). The establishment of the facts relating to the other shooters is based on the credible witness statements given by...[The witness] M. has stated that the accused and witnesses Ahmed and Sinan Bezek each carried a weapon in their hand (p. 100)...These statements were confirmed by the testimony given by witness K. He [reported] that he had seen that Sinan Bezek as well as Ahmet Bezek had carried a weapon. Both had shot very rapidly and had then disappeared (p. 100). ... Witness K. has stated that he had heard two shots before arriving at the scene. Shortly afterwards it had really started. He had seen how Sinan Bezek , Ahmet Bezek and the accused had shot (p. 100). Finally, witness D. had stated that he had seen weapons not only in the hands of the accused, but also in the hands of Ahmet and Sinan Bezek , but could not tell for sure whether these two had shot. The accused ’ s weapon as well as Sinan Bezek ’ s weapon was black and did not have a drum (p. 100/101). On the basis of the traces and other evidence it has been established...that the projectile with the casing numbered trace no. 28 has been shot from the weapon that had been fired by Sinan Bezek (pp. 105/106). The establishment of the fact that Sinan Bezek was one of the shooters is compatible with the witness testimony (p. 104)....These two pistols had been used by the accused and Sinan Bezek (p. 106)...Sinan Bezek ’ s pistol was jammed after the first shot (p. 106). The accused is guilty under Articles....of the Criminal Code of attempted manslaughter, causing serious bodily harm and unlawful carrying of a semi-automatic gun, jointly committed with the brothers Ahmet and Sinan Bezek (p. 130)....According to the established facts, the applicant and the witnesses Ahmet and Sinan Bezek had reached at least a tacit understanding to return to the entry of the “T.” [nightclub] and to use the weapons they carried in the expected confrontation with the M.group (p. 131)...The context of the proceedings demonstrates that each of the three shooters was aware of the fact that the respective other ones were armed (p. 131)...The accused ’ s firing of the first shot had prompted Sinan and Ahmet Bezek to use their own weapons without delay and without any apparent reason (p. 132).”

7. When giving an oral summary of the reasons of the judgment, the presiding judge S. also referred to the alleged involvement of the two applicants in the incident.

2. Criminal proceedings against the applicants

8. Both applicants were arrested on 6 January 2006 and remained in detention on remand until 21 April 2006. The second applicant was further detained on remand from 17 January 2008 to 28 January 2009 and as from 17 April 2009 until the termination of the criminal proceedings against him.

9. On 29 February 2008 the Bremen Public Prosecutor issued an indictment against the applicants for attempted manslaughter and violation of the Weapons Act. The Chamber adjudicating the applicants ’ case comprised the presiding judge S. and the judge P. – who had both been sitting on the bench in the trial against G. L. – one further professional judge and two lay judges.

10. Since March 2006, the second applicant had been represented by Ms P., a defence counsel who maintained her lawyer ’ s offices in Frankfurt/Main. The second applicant requested the Regional Court to appoint Mr Bogatz , who also represents him before the Court, as his second counsel.

11. On 25/26 March 2008 the presiding judge of the Regional Court requested the applicants ’ counsels to inform him about their availability from 28 April to 31 December 2008.

12. On 31 March 2008 Ms P. informed the Regional Court that she would be available as from May 2008 at the earliest. She further suggested scheduling hearings on two days per week, on Mondays and Fridays. She further stated that the second applicant ’ s defence would be assured in case Mr Bogatz was appointed as second defence counsel. She pointed out that a second defence counsel had been also appoi nted in the proceedings against G. L.

13. On 2 April 2008 the presiding judge of the Regional Court informed the applicants ’ counsels about the dates of the intended hearings, generally scheduled for three days per week, and asked them to confirm their respective availability. In view of the fact that each of the applicants would only be represented by one court-appointed counsel, it was of imminent importance that the respective counsels arrived in time for the hearings. He further informed the applicants ’ counsels about his intention to withdraw the appointment of Ms P. as the second applicant ’ s court-appointed defence counsel, in view of the distance between her lawyer ’ s offices situated in Frankfurt/Main and the Bremen Regional Court where the hearings would take place.

14. On 18 April a preliminary talk took place between the presiding judge, judge P., public prosecution and the applicants ’ defence counsels. According to a note to the case-file prepared by the presiding judge following this discussion, Ms P. had not been able to submit a binding declaration that she would be available on all hearing days.

15. On 23 April 2008 the presiding judge of the Bremen Regional Court withdrew the appointment of Ms P. as the second applicant ’ s counsel, rejected his request to appoint Mr Bogatz and appointed another counsel, residing in Bremen, as the second applicant ’ s defence counsel. The Presiding Judge observed that neither of the counsels had confirmed their availability for all the scheduled hearing days. He further observed that the special relation of confidence existing between Ms P. and the second applicant made it desirable that she could continue her assignment. The lawyer of confidence should regularly be assigned unless serious reasons militated against this. However, in the ins tant case, the remoteness of Ms P. ’ s offices made it necessary to withdraw her appointment. Under the relevant provisions of the Code of Criminal Procedure, precedence was to be given to lawyers residing in the respective court district. The proximity of the defence counsel was an important aspect of an appropriate defence and of an orderly course of the proceedings. This factor was enhanced by the fact that the accused was in detention on remand and that the proceedings would be lengthy. In spite of the requirement of special expediency in case of detention on remand, Ms P. had failed to submit a binding declaration that she would be available on all (or at least almost all) pre-scheduled hearing dates. The presiding judge finally observed that the further assignment of Ms P. would cause considerable additional expenses caused by times of absence, travel and accommodation costs.

16. On 9 June 2008 the Hanseatic Court of Appeal dismissed the second applicant ’ s complaint about this decision. The Court of Appeal considered that the presiding judge of the Bremen Regional Court, when withdrawing Ms P. ’ s appointment, had stayed within his margin of appreciation. That court noted that the presiding judge had given several objective reasons for his decision. The distance between the defence counsel ’ s offices and the court seat was an important aspect in assuring adequate defence. While it was true that Ms P. had entertained her offices in Frankfurt already at the time when she was first appointed defence counsel in July 2006, this did not rule out the withdrawal of appointment, in particular if further reasons emerged during the course of proceedings. In this respect, the Court of Appeal observed that the second applicant had been arrested in January 2008 and that his case had to be processed with the special diligence required in case of detention on remand. In spite of the presiding judge ’ s repeated requests, Ms P. ’ s had failed to submit a binding and unequivocal statement that she would be able to attend all – or almost all – of the scheduled hearings. The Hanseatic Court of Appeal finally observed that the second applicant had failed to establish a specific relation of confidence to Ms P. which would exceptionally justify the exorbitant costs which would be incurred by her appointment as the applicant ’ s defence counsel.

17. Ms P. continued to represent the second applicant as his chosen defence counsel until 3 February 2009, when her mandate was discontinued for lack of funds.

18. On 18 and 25 June 2008 the applicants lodged motions for bias against the two judges S. and P. on the grounds that they had both been sitting on the bench which had delivered judgment agains t the alleged co ‑ perpetrator G. L. They considered the Cham ber adjudicating the case of G. L. had taken a definite position on the applicants ’ guilt. The findings conta ined in the judgment against G. L. which related to the applicants ’ alleged involvemen t had not been necessary, as G. L. had made a confession in which he had assumed the full responsibility for the shooting incident. The second applicant further referred to the withdrawal of Ms P. as his defence counsel.

19. On 27 June 2008 another Chamber of the Regional Court rejected the motions for bias as unfounded. The Regional Court reiterated that a mere prior involvement concerning the same matter did not as such raise doubts as to the judges ’ impartiality. There were no specific circumstances which allowed drawing a different conclusion in the instant case. The references made to the applicants ’ involvement in the shooting incident had been indispens able for establishing G. L. ’ s criminal liability within the framework of a joint criminal act. In order to establish the guilt of the accused, the trial chamber had been obliged to assign the different contributions to the different persons involved in the incident. The same applied to the oral summary of the reasoning given by the presiding judge on pronounce ment of the judgment against G. L.

20. The Bremen Regional Court heard the applicants ’ case on 119 days as from 25 June 2008.

21. On 4 March 2010 the Bremen Regional Court convicted the applicants, who had denied any involvement in the shooting incident, of attempted manslaughter, grievous bodily harm and unlawfully carrying a firearm and sentenced the first applicant to eight years ’ and the second applicant to seven years ’ imprisonment. Based on witness evidence, which was corroborated by circumstantial and expert evidence, the Regional Court found it established that the two applicants had taken part in the shooting of 6 January 2006 and that the second applicant had fired one shot and the first applicant at least three shots before their weapons were jammed. The Regional Court furthermore found it established that the applicants had worked as contact persons for the Bremen police, but did not consider that this fact had an influence on their criminal liability.

22. The judgment, which ran over 354 pages, contained a summary of the previous proceedings. With regard t o the judgment given against G. L., the judgment read as follows:

“The Jury Court I convicted him [G. L.] of attempted manslaughter, grievous bodily harm and unlawfully carrying a firearm and sentenced him to 10 years and 6 months ’ imprisonment. At that time, the Jury Court I ha d gained the conviction that G. L., jointly with Ahmet and Sinan Bezek , who are accused here, fired a multitude of shots into a group of people standing in front of the “ B .club ”. The judgment against G.L. is now final. G. L. was summoned twice to give testimony as a witness in the instant proceedings. Even though he had no right to refuse to give evidence, he refused in the instant proceedings to give testimony...”

23. Both applicants lodged appeals on points of law against the judgment of 4 March 2010, in which they inter alia complained about the lack of impartiality of the Jury Court adjudicating their case. The second applicant further complained about the withdrawal of appointment of Ms P. as his defence counsel. On 21 June 2011 the Federal Court of Justice dismissed the applicants ’ appeal on points of law.

24. On 3 August 2011 the Federal Constitutional Court refused to entertain the applicants ’ constitutional complaints.

B. Relevant domestic law

25. Article 142 § 1 of the Code of Criminal Procedure as in force at the relevant time provided:

“(1) The presiding judge of the [trial] court choses the defence counsel to be appointed preferably among the lawyers residing in the court district. The accused shall be given the opportunity to name defence counsel of his choice within a time limit to be specified. The presiding judge appoints the defence counsel designated by the accused unless there is an important reason for not doing so.”

26. Pursuant to Article 155 § 1 of the Code of Criminal Procedure , criminal investigations and related decisions concern only the accused and the charges brought against him or her . Article 264 § 1 stipulates that a judgment rendered in criminal proceedings shall deal with the offence set out in the bill of indictment as determined in more detail in the light of the outcome of the trial.

27. Article 25 of the Criminal Code provides as follows :

Principals

“ (1) Any person who commits the offence himself or through another shall be liable as a principal.

(2) If more than one person commit the offence jointly, each shall be liable as a principal (joint principals). ”

COMPLAINTS

28. The applicants complain ed under Article 6 § 1 of the Convention about the lack of impartiality of the Chamber of the Regional Court adjudicating their case. The second applicant also complained that the rejection of his motion for bias violated his rights under Article 6 § 2 of the Convention. The second applicant f urther complained under Article 6 § 3 (c) about the withdrawal of appointment of his original defence counsel Ms P.

THE LAW

A. J oinder of the applications

29. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background .

B. Complaint about the lack of an impartial tribunal

30. The applicants complained under Article 6 § 1 of the Convention about the Bremen Regional Court ’ s alleged lack of impartiality, arguing that two of the three professional judges sitting on the bench had previously passed a judgment agai nst their alleged accomplice G. L., in which they had made definite statements on the applicants ’ involvement in the crime and their respective guilt, thus violating the presumption of innocence under Article 6 § 2. According to the applicants, these statements had not been called for, as G. L. had taken full responsibility of the crimes he had been accused of and there had been thus no need to examine the possible involvement of other persons. Furthermore, they claimed that the presiding judge, when pron ouncing the judgment against G. L., had expressed the opinion that the applicants had been much more heavily involved in the shooting incident than had been hitherto assumed by the police, thus prompting fresh investigations against them.

31. The Court considers that the instant complaint primarily falls to be examined under Article 6 § 1 of the Convention which, insofar as relevant, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

“ 543. The Court observes that, in a number of cases, it has come to the conclusion that the involvement of the same judge in two sets of proceedings concerning the same events may arguably raise an issue under Artic le 6 § 1 of the Convention (see Ferrantelli and Santangelo v. Italy , 7 August 1996, § 59, Reports of Judgments and Decisions 1996 ‑ III, and Rojas Morales v. Italy , no. 39676/98, § 33, 16 November 2000).

544. In more recent cases the Court has clarified its position and held that the mere fact that a judge had already tried a co-accused was not, in itself, sufficient to cast doubt on that judge ’ s impartiality in that applicant ’ s case (see Schwarzenberger v . Germany , no. 75737/01, §§ 37 et seq., 10 August 2006, and Poppe v. the Netherlands , no. 32271/04, § 22 et seq., 24 March 2009). As a matter of practice, criminal adjudication frequently involves judges presiding over various trials in which a number of co-accused persons stand charged. The Court considers that the work of criminal courts would be rendered impossible if, by that fact alone, a judge ’ s impartiality could be called into question. An examination is needed, however, to determine whether the earlier judgments contained findings that actually prejudged the question of the applicant ’ s guilt. ”

33. In Schwarzenberger , cited above, the Court emphasised that the judgment convicting the applicant did not contain any references to the judgment against the co-accused, showing that the judges had given fresh consideration to the applicant ’ s case. Further, in the judgment against the co-accused, the established facts about the applicant ’ s involvement in the crimes were essentially based on the co-accused ’ s submissions, and thus did not constitute the Regional Court ’ s assessment of the applicant ’ s guilt. In Poppe , cited above, the Court found it decisive that the applicant ’ s name had been mentioned only in passing in the judgments against the co ‑ accused and that the trial judges had not determined whether the applicant was guilty of having committed an offence.

34. In Miminoshvili v. Russia (no. 20197/03, §§ 117 et seq., 28 June 2006) the Court analysed the judgmen t in the case concerning the co ‑ accused and stressed that the applicant ’ s name was never mentioned there in any incriminating context: the domestic court did not refer to the applicant as a “perpetrator” or “co-offender”, in contrast to the situation in Ferrantelli and Santangelo , cited above. Information by several witnesses referring to the applicant was reproduced in the judgment. H owever, it was presented in the judgment as reported speech, and not as the court ’ s own findings. The Court finally took note of the fact that the trial judge was a professional judge and, as such, she was a priori more prepared to disengage herself from her previous experience in the co-accused ’ s trial than, for instance, a lay judge or a juror.

37. Concerning the statement of the presiding judge orally delivering the ju dgment against G. L., the Court stresses that it has not been provided with the explicit wording of that statement. Accordingly, there is no indication that this oral statement exceeded the content of the written judgment.

38. In the light of the above considerations, and bearing in mind that judges S. and P., in their capacity as professional judges, could be expected to disengage themselves from their previous experience in G. L. ’ s trial, the Court cannot find that the applicants ’ fear of partiality was based on any objective grounds. Accordingly, there is no appearance of a violation of Article 6 § 1 of the Convention in the applicants ’ case.

39. 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.

C. Complaint about the withdrawal of the second applicant ’ s counsel

40. The second applicant complained that he had not been allowed to be defended by counsel of his own choosing. The decisions taken by the Regional Court and the Court of Appeal on the withdrawal of Ms P. as defence counsel had been arbitrary. In particular, these courts had failed to take into account that Ms P. had submitted a written declaration on 31 March 2008 that she would be prepared fully to ensure the second applicant ’ s defence as from May 2008. Furthermore, the courts had failed to attach sufficient weight to the special relationship of confidence between the second applicant and Ms P., in particular in relation to the second applicant ’ s activities as a police informant. The second applicant relied on Article 6 § 3 (c) of the Convention, providing:

“ 3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself ... through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”

41. The Court reiterates that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial in criminal proceedings set forth in paragraph 1 of the same Article. Accordingly, the second applicant ’ s complaint will be examined under these provisions taken together (see, among other authorities, Benham v. the United Kingdom , 10 June 1996, § 52 , Reports of Judgments and Decisions 1996 ‑ III ). It is true that Article 6 § 3 (c) entitles everyone charged with a criminal offence to be defended by counsel of his own choosing. Nevertheless, and notwithstanding the importance of a relationship of confidence between lawyer and client, this right cannot be considered to be absolute. It is necessarily subject to certain limitations where free legal aid is concerned and also where, as in the present case, it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them (see Croissant v. Germany , 25 September 1992, § 29 , Series A no. 237 ‑ B and Lagerblom v. Sweden , no. 26891/95, § 54 , 14 January 2003 ). When appointing defence counsel the national courts must certainly have regard to the defendant ’ s wishes; indeed, German law contemplates such a course in Article 142 § 1 sentence 3 of the Code of Cr iminal Procedure (see relevant domestic law, above). However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see Croissant , ibid. ). The Court further observes that the State parties to the Convention, who are in a better position to choose the means to assure the rights of the defence, enjoy a margin of appreciation in this respect (compare Correia de Matos v. Portugal ( dec .), no. 48188/99 , ECHR 2001 ‑ XII ).

42. Turning to the circumstances of the instant case, the Court observes that the Regional Court based its decision to revoke the appointment of Ms P. as the second applicant ’ s court-appointed counsel on the following grounds: Ms P. had not confirmed her availability for all scheduled hearing days in a written and unequivocal way. Furthermore, the proceedings would be lengthy and required special expedience given that the second applicant was in detention on remand. While acknowledging the relationship of confidence between the second applicant and his current defence counsel, the Regional Court, in line with the rule laid down in Article 142 sentence 1 of the Code of Criminal Procedure as in force at the relevant time, considered that precedence should be given to a lawyer residing within the Bremen Court District. Finally, the Regional Court referred to the considerable additional expenses incur red by the appointment of a non ‑

resident counsel. The Court of Appeal confirmed this decision, emphasising that the fact that the second applicant had been detained on remand on 8 January 2008 constituted a new factor to be taken into account when re-examining the appointment of his defence counsel.

43. The Court considers that the grounds on which the domestic courts based their decision to withdraw the appointment were relevant and sufficient to justify the withdrawal of Ms P. ’ s appointment as a legal-aid funded defence counsel even bearing in mind the relation of confidence between them. The Court further observes that the material submitted by the applicant does not contain any written statement confirming Ms P. ’ s availability on all pre-scheduled hearing days. In her letter dated 31 March 2008 to the Regional Court Ms P. merely stated that she would be available as from May 2008 at the earliest and suggested to schedule hearings on two days per week, whereas the Regional Court later on scheduled hearings at shorter intervals.

44. The Court furthermore observes that the second applicant continued to be represented by defence counsel throughout the proceedings and that he has not submitted that he had not been adequately defended following Ms P. ’ s withdrawal as court-appointed defence counsel in April 2008 and the later termination of her mandate as chosen counsel in February 2009. Accordingly, it cannot be said that the withdrawal of appointment rendered the proceedings against the second applicant, seen as a whole, unfair.

45. In the light of the above considerations, the Court considers that the withdrawal of Ms P. cannot be held to have been incompatible with the requirements of paragraph 3 (c) and 1 of Article 6.

46. It follows that this part of the application is likewise manifestly ill ‑ founded and must be reje cted in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court

Decide s, unanimously, to join the applications;

Declares , by a majority , the application s inadmissible as regards the complaint concerning the lack of impartiality;

Declares, unanimously, inadmissible the remainder of the case .

Done in English and notified in writing on 21 May 2015 .

Milan BlaÅ¡ko Mark Villiger              Deputy Registrar President