Communicated on 5 July 2016

FIFTH SECTION

Application no. 26892/12 Dieter WANNER against Germany lodged on 27 April 2012

STATEMENT OF FACTS

1. The applicant, Mr Dieter Wanner , is a German national who was born in 1978 and lives in Schutterwald . He was represented before the Court by Mr C. Schneble , a lawyer practising in Offenburg.

A. The circumstances of the case

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

1. The initial proceedings

3. On 23 March 2007 the Lahr District Court convicted the applicant, inter alia , of aggravated assault and sentenced him to nine months ’ imprisonment, suspended on probation. It established that on the night from 29 to 30 April 2006 the applicant and three unknown accomplices had entered L. ’ s flat and, while hitting and kicking him, demanded that he repay 3,500 euros (EUR). During the trial the applicant had denied taking part in the assault, although he conceded that L. owed him 3,500 EUR and that he had been to L. ’ s home several times before, in order to demand payment. Nevertheless, the District Court found the applicant guilty, relying on L. ’ s and L. ’ s wife ’ s testimony, which it considered credible. L. testified to having recognised the applicant, since they were acquainted with each other and the applicant had not been masked. His wife identified the applicant from several photographs she was shown.

4. On 12 July 2007 the conviction became final after the applicant, who had initiated appeal proceedings, withdrew his appeal during the hearing before the Offenburg Regional Court.

2. The proceedings at issue

5. On 7 September 2007 the applicant, after being officially summoned, appeared before a judge to testify as a witness to the identity of the accomplices to the assault for which he had been convicted. The judge explained to the applicant that, being a witness, he was required to tell the truth. She did not inform him of a potential right to remain silent on certain questions so as not to incriminate himself under Article 55 of the Code of Criminal Procedure (CCP, see paragraph 14 below). Moreover, the applicant was warned that he could face coercive detention ( Beugehaft ) if he did not comply with his obligation to give testimony. The applicant maintained that he had not been at the scene of the crime, consequently he could not say anything about those who took part in the assault.

6. Subsequently, the applicant was charged with giving false testimony while not under oath ( uneidliche Falschaussage ).

7. On 25 November 2008 the Offenburg District Court acquitted the applicant of these charges because it was not convinced that he had participated in the assault. After having taken all evidence anew, the District Court, applying the principle in dubio pro reo , held that it was also possible that the applicant had attended a birthday party at the time the crime occurred.

8. On 23 November 2010, upon appeal by the prosecution, the Offenburg Regional Court convicted the applicant of false testimony while not under oath, pursuant to Article 153 of the Criminal Code (CC, see paragraph 16 below) and sentenced him to six months ’ imprisonment, suspended on probation. After hearing all witnesses anew, it established that the applicant had taken part in the assault and consequently had not told the truth when he was heard as a witness in 2007.

9. The Regional Court also found that the applicant had not been informed of his right under Article 55 CCP not to provide answers by which he might incriminate himself. However, in the view of the Regional Court, such an instruction had been unnecessary. It held that there had been no danger of a new criminal prosecution for the assault because the Lahr District Court ’ s judgment had become final. In view of the principle of ne bis in idem it was not possible to prosecute him again for this act.

10. Referring to the relevant case-law of the Federal Court of Justice, the Regional Court accepted, though, that the right to remain silent under domestic law extended also to questions which could indirectly incriminate the witness, even by contributing just a small piece of evidence against him. However, the Regional Court could not discern any indirect danger that the applicant would be prosecuted for other crimes committed together with his co ‑ perpetrators, even if he were to reveal their names. The applicant had submitted nothing in this regard, nor did the evidence-taking disclose any facts which could justify the applicant ’ s fear of a new criminal prosecution.

11. The Regional Court further ruled out a breach of Article 6 of the Convention. It took note of the applicant ’ s argument t hat Article 6 protected a convicted offender from being questioned as a witness on the same events in respect of which he had been found guilty by a final judgment as he would be forced to incriminate himself in an offence he had consistently denied. However, the Regional Court found that Article 6 protected a defendant only from contributing to his own criminal prosecution. Whenever, like in the instant case, there was no such danger, a convicted offender was bound to testify as a witness according to the relevant provisions of criminal procedural law.

12. On 28 July 2011 the Karlsruhe Court of Appeal dismissed the applicant ’ s appeal on points of law, finding no legal error to the applicant ’ s detriment in the Regional Court ’ s judgment.

13. On 19 October 2011 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint, without providing reasons (file no. 2 BvR 1905/11). The decision was served on the applicant ’ s counsel on 27 October 2011.

B. Relevant domestic law

14. Article 55 of the Code of Criminal Procedure provides:

“(1) Any witness may refuse to answer any questions the reply to which would subject him , ..., to the risk of being prosecuted for a criminal offence or a regulatory offence.

(2) The witness shall be instructed as to his right to refuse to answer.”

15. Article 70 of the Code of Criminal Procedure reads as follows:

“(1) A witness who without a legal reason refuses to testify or to take an oath shall be charged with the costs caused by this refusal. At the same time a coercive fine shall be imposed on him and if the fine cannot be collected, coercive detention shall be ordered.

(2) Detention may also be ordered to force a witness to testify; such detention shall not, however, extend beyond the termination of those particular proceedings, nor beyond a period of six months.

...”

16. Article 153 of the Criminal Code provides:

“Whosoever as a witness or expert gives false unsworn testimony before a court or other authority competent to examine witnesses and experts under oath shall be liable to imprisonment from three months to five years.”

COMPLAINTS

17. The applicant complained under Article 6, Article 14 in conjunction with Article 10 and Article 3 of the Convention that he had not been informed of his right to remain silent and not to incriminate himself during the interrogation in 2007, that unlawful pressure had been exerted on him to confess to an offence he had consistently denied, and that he was convicted of giving false testimony.

QUESTIONS TO THE PARTIES

1. Was Article 6 of the Convention under its criminal head applicable regarding the questioning of the applicant as a witness on 7 September 2007? In particular, could the applicant rely on his right to fair trial, notably the privilege not to incriminate himself, or invoke the presumption of innocence?

If so, were the applicant ’ s respective rights respected in the present case?

2. Has there been an interference with the applicant ’ s right to freedom of expression , within the meaning of Article 10 § 1 of the Convention when he was questioned as a witness or by his subsequent conviction?

If so, was that interference necessary in terms of Article 10 § 2?