Published on 8 November 2021

THIRD SECTION

Application no. 57818/18 Marco STRASSENMEYER against Germany lodged on 28 November 2018 communicated on 15 October 2021

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s conviction for murder and deprivation of liberty causing death.

In the investigation proceedings, at the beginning of the police interrogations, the applicant and all co ‑ accused were instructed about their rights as accused, notably about the right to remain silent and to consult a lawyer of their choice. However, they had not been informed about their right to have also a defence counsel appointed ( Pflichtverteidiger ). At the police, the co-accused St. S. had also reported on his brother’s description of the killing. The brother had died in the meantime.

At the trial, the applicant and the three co-accused made use of their right to remain silent. As regards the establishment of facts, the criminal court relied particularly on pre-trial statements made by the three co-accused in the course of their police interrogations. It therefore heard the police officers as witnesses about the submissions of the co-accused.

In the course of the evidence taking, the applicant and one of the co ‑ accused requested an expert opinion on the credibility of the co ‑ accused V. The latter also agreed to make submissions before such an expert. However, the court rejected the request because the assessment of evidence was primarily the task of the court.

The applicant relies on Article 6 §§ 1 and 3 (d) of the Convention arguing that he could not confront the three co-accused and the brother of the co-accused St. S. at any stage of the criminal proceedings. Furthermore, he alleges under Article 5 § 1 (c) that his own submissions and those of his co ‑ accused during the police interrogations did not constitute admissible evidence because they had not been instructed correctly about their rights. Additionally, at the pre-trial hearing following the arrest, the investigating judge should have instructed them that their earlier submissions made to the police were not valid evidence.

QUESTIONS TO THE PARTIES

1. Has the applicant’s right to a fair trial, including a right to examine or have examined witnesses against him, under Article 6 §§ 1 and 3 (d) of the Convention, been breached in that neither the applicant nor his counsel had been given an opportunity, at any stage of the proceedings, to examine the three co-accused and the brother of the co-accused St. S .?

In particular, having regard to the principles established by the Court notably in its judgment in the case of Schatschaschwili v. Germany ([GC], no. 9154/10, ECHR 2015),

(a) Was there a good reason for admitting as evidence pre-trial statements made by the co-accused during police interrogations and subsequently presented by the police officers at the trial?

(b) Was the applicant’s conviction based solely or to a decisive or significant extent on the evidence provided by the co-accused, in particular in respect of the statements of the co-accused V.?

(c) Have there been sufficient counterbalancing factors to compensate for the difficulties caused to the defence as a result of the fact that it had been unable to question the co-accused and the brother of the co-accused St. S.? In particular, what measures were taken and which additional counterbalancing measures could have been taken by the domestic prosecution authorities and by the domestic courts to safeguard the applicant’s defence rights? In this context, to what extent was it relevant that the request for an expert opinion on the credibility of the co-accused V. had been rejected?

2. Has the applicant’s right to a fair trial under Article 6 § 1 been breached in that the criminal court admitted as evidence the pre-trial statements made by the applicant and the co-accused during their police interrogations, given that the police had not instructed them about their right to have a defence counsel appointed and the investigating judge had not instructed them that their previous statements could not be used as evidence?