FIFTH SECTION

Application no. 9154/10 Swiadi SCHATSCHASCHWILI against Germany lodged on 12 February 2010

STATEMENT OF FACTS

The applicant, Mr Swiadi Schatschaschwili , is a Georgian national, who was born in 1978 and is currently detained in Rosdorf prison, Lower Saxony . He is represented before the Court by Mr H. Meyer-Mews, a lawyer practising in Bremen .

A. The circumstances of the case

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

By a judgment of 25 April 2008 (file no. 63 Js 1244/07) the Göttingen Regional Court convicted the applicant of two counts of aggravated robbery in conjunction with aggravated extortion by means of coercion, committed jointly with further perpetrators ( gemeinschaftlicher schwerer Raub in Tateinheit mit schwerer räuberischer Erpressung ), and imposed an accumulated prison sentence ( Gesamtfreiheitsstrafe ) of nine years and six months.

The crimes were committed in Kassel on 14 October 2006 and in Göttingen on 3 February 2007 respectively.

1. The facts established by the Göttingen Regional Court

(a) The events in Kassel

The Regional Court found it established that in the evening of 14 October 2006 the applicant, acting jointly with an unidentified accomplice and according to a previously agreed plan, entered by force into an apartment in Kassel and robbed its occupants. The men were aware that the apartment was used for prostitution and expected its two female occupants to keep valuables and cash in there. They had passed by the apartment in the early evening in order to make sure that no clients were present. Shortly afterwards they rang at the door of the apartment which was attended by its tenant Ms L. After having overpowered L. by force the applicant threatened her with a gas pistol that resembled a real gun ordering her to keep silent. He then went to the kitchen where he found the further occupant of the apartment Ms I., a Lithuanian national who lived and worked there as a prostitute. Pointing his gas pistol at I. he forced her to hand over her mobile phone. While his accomplice was watching over the two women, the applicant searched the apartment for valuables and found five further mobile phones as well as 100 euros (EUR) in I. ’ s purse. The applicant then threatened to shoot the women should they not disclose where they were keeping any additional money. As a result of his threat L. handed over a further 1,000 euros which she had kept in the pocket of her jacket. The men then left the apartment with their loot. Later that evening an acquaintance of L. whom she had told about the incident called the police which attended on-site.

(b) The events in Göttingen

As regards the events on 3 February 2007, the Regional Court established that the applicant, acting jointly with several accomplices, two of whom were the applicant ’ s co-accused in the proceedings before the court, robbed another apartment located in Göttingen . The men acted according to a plan previously set up among the gang. At the relevant time the apartment was occupied by Ms O. and Ms P., two Latvian nationals who were illegally staying in Germany and working in the apartment as prostitutes. O. and P. were friends of L., one of the victims of the crime committed in Kassel on 14 October 2006, and they had both worked for some time as prostitutes in the Kassel apartment rented by L. before moving to Göttingen .

In the evening of 2 February 2007, the day before the crime, one of the applicant ’ s co-accused together with accomplice R. passed by O. and P. ’ s apartment in Göttingen with a view to verifying whether the two women were its only occupants and whether it contained any valuables. R. was an acquaintance of O. and P. whom they got to know through their friend L. when they had stayed in her apartment in Kassel . Hence, the unsuspecting women did not object to the men entering the apartment. Following their visit the two men reported to the residual members of the criminal gang that they had spotted a safe in the apartment ’ s kitchen.

On 3 February 2007 at around 8 p.m. the applicant and a further accomplice, B., gained access to O. and P. ’ s apartment pretending to be potential clients while one of the co-accused was waiting in a car parked close to the apartment building and the other co-accused in front of the house. Once inside the apartment B. produced a knife that he had carried along in his jacket. P., trying to escape from the perpetrators, jumped from the apartment ’ s balcony located approximately two meters off the ground and ran away. The applicant jumped after her but abandoned the chase after some minutes when passers-by appeared nearby on the street. He then called the co-accused waiting in front of the women ’ s apartment on his mobile phone and gave him an account of the events. He agreed with the latter on a meeting point where the co-accused were supposed to pick him up with the car once accomplice B. would have left the crime scene and have joined them. In the meantime inside the apartment, B. after having overpowered O. threatened to kill her with his knife should she not disclose where the women kept their money or should she refuse to open the safe for him. Fearing for her life O. opened the safe from which B. removed 300 euros and also handed over the contents of her wallet in the amount of 250 euros . B. left the apartment at around 8.30 p.m. taking the money and P. ’ s mobile phone as well as the apartments ’ landline phone with him and joined the co-accused. The co-accused and B. then picked up the applicant at the agreed meeting point with their car.

At approximately 9.30 p.m. P. rejoined O. at the apartment. The women called their friend L. in Kassel and gave her a brief account of the events. The next day they also told their neighbour E. about the crime. Later that day the women, afraid of remaining alone in the Göttingen apartment, drove to Kassel where they stayed a few days with their friend L. Following short subsequent stays in Frankfurt am Main and back in Göttingen they returned to Latvia in February 2007.

2. The Regional Court ’ s fact finding and assessment of evidence

(a) The events in Kassel

The Regional Court based its finding of facts regarding the first crime committed in Kassel on 14 October 2006 on the statements made by the victims L. and I. on the occasion of their police interrogations as well as in the course of the subsequent trial. Both witnesses had identified the applicant without any hesitation as the perpetrator who had carried the gun when presented with his photo on the occasion of their police interviews and later when confronted with him personally at trial. The Regional Court found L. and I. ’ s testimonies to be consistent and credible and noted that they were supported by the statements of the police officers who had attended the crime scene and had interviewed L. and I. in the course of the preliminary investigations and who had all been heard as witnesses during the trial.

(b) The events in Göttingen

As regards the establishment of facts in relation to the second crime committed in Göttingen the Regional Court relied in particular on pre-trial statements made by the victims O. and P. in the course of police interrogati ons in the period from 15 to 18 February 2007 and befo re an investigating judge on 19 February 2007.

By a decision of 21 February 2008 the Regional Court, dismissing a related objection by the defence, ordered that the records of O. and P. ’ s interrogations by the police and the investigating judge be read out at the trial and be admitted as evidence in the proceedings in accordance with Article 251 (1) and (2) of the German Code of Criminal Procedure (see Relevant domestic law below). The said article provides for such possibility in the event insurmountable impediments make it impossible to hear a witness in the foreseeable future. The Regional Court pointed out in this context that it had not been possible to hear the witnesses in the course of the trial since they had returned to their home country Latvia shortly after their interrogations at the investigative stage and all attempts to enable their examination at the main hearing had been to no avail.

The Regional Court specified that O. and P. had been summoned to appear before the Regional Court on 24 August 2007, the third day of the trial. However, they both had refused to attend the hearing relying on medical certifi cates dated 9 August 2007 tha t indicated their instable post ‑ traumatic emotional and psychological condition. Consequently, on 29 August 2007 the court had sent letters to both witnesses asking under what conditions they would be ready to testify at trial. While an acknowledgement of receipt had been returned for both letters, no response had been obtained from P. O. for her part had informed the Regional Court in writing that due to the fact that she was still traumatised by the crime, she would neither accept to appear at the trial in person nor would she agree to be examined by means of an audio-visual transmission. O. had further mentioned that she had nothing to add to her statements made in the course of the interviews before the police and the investigating judge in February 2007.

The Regional Court nevertheless requested legal assistance from the Latvian authorities and asked for the witnesses to be heard by a court in Latvia and the hearing to be transmitted by voice and image ( audiovisuelle Vernehmung ). However, a witness hearing scheduled by the competent Latvian court for 13 February 2008 was cancelled shortly before by the presiding Latvian judge on the ground that the witnesses, again relying on medical certificates, had demonstrated that they were still suffering from post-traumatic disorders as a consequence of the crime and that a further confrontation with the events in Göttingen would risk aggravating their condition. The witnesses had further claimed that following threats by the accused they feared possible acts of revenge.

The Regional Court informed their Latvian counterpart by a letter dated 21 February 2008 that according to the standards of German law of criminal procedure the reasons advanced by the witnesses were not sufficiently substantiated to justify their refusal to testify. The court suggested to the competent Latvian judge to have the witnesses examined by a public medical officer ( Amtsarzt ) and, alternatively, to coerce them to attend the hearing.

As the letter remained unanswered, the Regional Court considered that it did not dispose of any further legal means to enforce a hearing of O. and P. Having further regard to the fact that the recently renewed medical certificates indicated that the witnesses ’ state of health would not change any time soon, the Regional Court concluded that it was impossible to have the witnesses examined in the foreseeable future. Pointing out that courts were under an obligation to conduct proceedings involving the deprivation of liberty expeditiously and in view of the fact that the accused had already been held in custody for a considerable period of time, the court was of the opinion that it could not be justified to further delay the proceedings.

Consequently, a further objection against the introduction of the witnesses ’ pre-trial statements by counsel of one of the co-accused was rejected by the Regional Court and the records of the witnesses ’ police interrogations and interviews with the investigative judge were read out during a hearing on 26 February 2008.

In its judgment running to some 152 pages, the Regional Court pointed out that in assessing the available evidence it had been aware of the reduced evidentiary value of the records of O. and P. ’ s pre-trial testimonies. It had further taken into account that neither the applicant nor counsel for the defence had been provided with an opportunity to examine the only direct witnesses of the crime in Göttingen at any stage of the proceedings. At the time of the last pre-trial interrogation of O. and P. on 19 February 2007, the applicant had not been informed about the preliminary criminal proceedings initiated against him with a view to not putting the investigations at risk. No warrant for his arrest had yet been issued and he had not been represented by counsel. The investigating judge had excluded the applicant from the hearing in accordance with Article 168(c) of the Code of Criminal Procedure since he had been concerned that the witnesses would be afraid of telling the truth in the presence of the accused. The Regional Court further emphasised that at the investigative stage there had been no indication that O. and P. who had testified on several occasions before the police and then before the investigating judge would refuse to repeat their statements at a subsequent trial.

The Regional Court held that notwithstanding the resulting restrictions for the defence, the trial as a whole had been fair and had complied with the requirements of Article 6 § 3(d) of the Convention. The court was thus not prevented from admitting O. and P. ’ s pre-trial statements as evidence in the proceedings. It had made considerable efforts to enable a direct examination of O. and P. by the accused and counsel for the defence at trial. Moreover, once the witnesses had proved to be unavailable the Regional Court had ensured that a maximum of further witnesses who had been in contact with O. and P. in relation to the events at issue could be heard at trial. Finally, the court had taken several items of evidence as corroborating O. and P. ’ s pre-trial testimonies into account when assessing their evidentiary value.

In the Regional Court ’ s opinion the records of O. and P. ’ s interrogations at the investigative stage showed that they had given detailed and coherent descriptions of the circumstances of the crime. Minor contradictions in their statements could be explained by their concern not to disclose their illegal residence status and activities to the authorities and by the psychological strain they had been subject to during and following the incident. The witnesses had feared problems with the police and acts of revenge by the perpetrators. This explained why the witnesses had not pressed charges immediately after the events and why the police had only been informed of the c rime on 12 February 2007 by their friend L. As regards O. and P. ’ s ’ failure to identify the applicant when confronted with several photos of potential suspects during the police interrogations, the court observed that the witnesses ’ attention during the incident had been focussed on the further perpetrator carrying the knife and that the applicant himself had only stayed a short period of time in the apartment. Their inability to identify the applicant also showed that the witnesses, as opposed to the defence ’ s allegations, had not testified with a view to incriminating him.

In the court ’ s opinion the fact that the detailed description of the events in the witnesses ’ pre-trial statements were consistent with the account they had given the morning after the crime to their neighbour E., who had been heard as a witness during the trial, was a further strong indication for their credibility and the veracity of their statements. This witness had further tes tified that on the evening of 3 February 2007 at around 9.30 p.m. another neighbour, an elderly woman who got scared when she heard noise coming from O. and P. ’ s apartment, had called on her and asked her to accompany her to the women ’ s flat to investigate what had happened. O. and P. had, however, not answered the door when the neighbours were ringing the bell.

The Regional Court further observed that O. and P. ’ s description of the events also coincided with their friend L. ’ s recollection of her conversations with O. and P. following the crime as reproduced during L. ’ s witness hearing at trial. In addition, the police officers and the investigating judge who had examined O. and P. at the pre-trial stage had all testified at trial that they had found the witnesses to be credible.

The Regional Court noted that since neither the defence nor the court itself had had an opportunity to observe the main witnesses ’ demeanour at trial or by means of an audio-visual examination, it had to exercise particular diligence in assessing the evaluation of the witnesses ’ credibility by the police officers and the investigating judge. The court further emphasised that when taking into account the testimonies given by the witnesses ’ neighbour E. and their friend L. it had paid special attention to the fact that their statements constituted hearsay evidence and had to be assessed particularly careful.

In this context it had been of relevance that O. and P. ’ s testimonies as well as the statements of the further witnesses at trial had been supported by further significant and admissible evidence such as data obtained through tapping of the applicant ’ s and the co- accused ’ s mobile phones and by means of a satellite-based global positioning system (“GPS”). Such information had been gathered within the scope of police surveillance measures carried out at the relevant time in relation to preliminary criminal proceedings initiated against the accused on suspicion of racketeering and extortion ( Schutzgelderpressung ) in the Göttingen drug scene. The link between the evidence obtained in the course of such separate investigations and the crime at issue could only be made after O. and P. had reported the incident of 3 February 2007 to the police. It followed from the recordings of two mobile phone conversations between one of the co-accused and the applicant in the evening of 3 February 2007 at 8.29 p.m. and 8.31 p.m. that the latter had been present in the victims ’ apartment accompanied by B. and that he had jumped from the balcony in order to chase one of the escaping victims whom he failed to capture, while B. had stayed in the apartment. Furthermore, an analysis of the GPS data showed that the car of one of the co-accused had been parked near the crime scene from 7.58 p.m. t o 8.32 p.m. on the evening of 3 February 2007, a period that coincided with the time-frame in which the robbery in issue had occurred.

Finally, while the applicant and the co-accused had denied any participation in the robbery as such or any premeditated criminal activity in this respect, their own statements at trial had at least confirmed that one of the co-accused together with R. had visited the apartment at Göttingen on the evening before the crime and that the applicant and B. had been present in the apartment at the time of the incident the following day. The applicant had testified that he and B. had come to the apartment with a view to making use of the women ’ s services as prostitutes. He further had conceded that he had followed P. when she escaped over the balcony and explained that he had done so in order to prevent her from calling the neighbours or the police since he had been afraid of getting problems in view of his criminal record and the problems he had previously had with prostitutes on a similar occasion in Kassel.

In the court ’ s view the body of evidence taken together gave a coherent and complete overall picture of the events that supported the version provided by witnesses O. and P. and refuted the contradictory statements made by the applicant and the co-accused in the course of the trial.

3. The subsequent proceedings

Counsel for the applicant lodged an appeal on points of law against the judgment of the Göttingen Regional Court in which he complained that the applicant had not been able to examine the only direct witnesses of the crime committed in Göttingen at any stage of the proceedings in breach of Article 6 §§ 1 and 3(d) of the Convention. He argued that such inability had been imputable to the domestic authorities. According to the Federal Court of Justice ’ s case-law counsel had to be appointed for an unrepresented accused if the key witnesses for the prosecution were to testify before an investigating judge and the accused was excluded from this hearing. However, at the time of the witness hearing the applicant had not even been informed about the preliminary proceedings instituted against him and the public prosecution authorities had not requested that defence counsel be appointed for him. Consequently, O. and P. ’ s testimonies ought to have been excluded from the trial.

By written submissions dated 9 September 2008 the Federal Public Prosecutor General ( Generalbundesanwalt ) moved that the applicant ’ s appeal on points of law be dismissed by the Federal Court of Justice as manifestly ill-founded in written proceedings pursuant to Article 349 (2) of the Code of Criminal Procedure (see Relevant domestic law below). The Prosecutor General argued that while it was true that the proceedings had been characterised by a “complete loss” of the applicant ’ s right to examine O. and P. (“ Totalausfall des Fragerechts ” ), they had as a whole been fair and there had been no reason to exclude the witness statements of O. and P. as evidence. The Regional Court had assessed the contents of the records of the witnesses ’ testimonies read out at trial particularly careful and critical. Furthermore, it had not made their statements the sole or decisive basis of the applicant ’ s conviction but had taken further significant evidence into account. In view of the various layers of corroborating evidence the applicant had had ample opportunities to put into question the credibility of the two main witnesses and to effectively defend himself. The Federal Prosecutor, endorsing the Regional Court ’ s related arguments, further pointed out that there was nothing to demonstrate that the restrictions to the defence ’ s right to examine the witnesses had been imputable to the domestic authorities.

By written submissions of 28 September 2008 the applicant replied to the Federal Prosecutor ’ s observations and requested the Federal Court of Justice to hold a hearing in the appeal proceedings.

By a decision of 30 October 2008 the Federal Court of Justice, referring to 349 (2) of the Code of Criminal Procedure, dismissed the applicant ’ s appeal on points of law as manifestly ill-founded.

By written su bmissions of 17 November 2008 the applicant complained of a violation of his right to be heard ( Anhörungsrüge ) on the ground that no hearing had been held in the appeal proceedings and that the Federal Court of Justice ’ s decision rejecting his appeal did not provide any reasons.

In its decision of 9 December 2008 rejecting the applicant ’ s complaint the Federal Court of Justice pointed out that any decision dismissing an appeal on the basis of Article 349 (2) of the Code of Criminal Procedure implied a reference to the respective reasoning provided by the Prosecutor General.

By a decision of 8 October 2009 the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint against the decisions of the Federal Court of Justice dated 30 October and 9 December 2008 for examination without providing reasons.

B. Relevant domestic law and practice

Pursuant to Article 168(c) (2) of the Code of Criminal Procedure, th e prosecutor, the accused and defence counsel shall be permitted to be present during the judicial examination of a witness or expert prior to the opening of the main proceedings. The judge may exclude an accused from being present at the hearing if his presence would endanger the purpose of the investigation, in particular if it is to be feared that a witness will not tell the truth in the presence of the accused ( Article 168(c) (3) of the Code of Criminal Procedure) . The persons entitled to be present shall be given prior notice of the dates set down for the hearings. The notification shall be dispensed with if it would endanger the success of the investigation ( Article 168(c) (5) of the Code of Criminal Procedure) .

Defence counsel may be appointed during preliminary proceedings; the public prosecution office shall request such an appointment if in its opinion the assistance of defence counsel in the main proceedings will be mandatory (Article 141 (3) of the Code of Criminal Procedure). The assistance of defence counsel is mandatory if, inter alia , the main hearing is held at first instance before the Regional Court or the accused is charged with a serious criminal offence (Article 140 (1) nos. 1, 2 and 7 of the Code of Criminal Procedure).

In a leading judgment of 25 July 2000 (published in the official reports, BGHSt , volume 46, p. 96 et seq . ) the Federal Court of Justice held that section 141 (3) of the Code of Criminal Procedure required, in view of Article 6 § 3(d) of the Convention, the appointment of counsel for an unrepresented accused if the key witness for the prosecution was to testify before an investigating judge and the accused was excluded from this hearing. The failure to appoint counsel prior to the hearing before the investigating judge did not exclude the latter ’ s testimony about the witnesses ’ statements as long as the proceedings, seen as a whole, remained fair. To this end the investigating judge ’ s testimony had to be carefully assessed. A conviction could only be based on the investigating judge ’ s testimony if this testimony was corroborated by other important considerations.

Pursuant to Article 251 (1) and (2) of the Code of Criminal Procedure the e xamination of a witness may be replaced by reading out a record of another examination or a certificate that contains a written statement originating from the witness if the latter has died or cannot be examined by the court for another reason within a foreseeable period of time. Examination of a witness may also be replaced by reading out the written record of his previous examination by a judge if illness, infirmity, or other insurmountable impediments prevent the witness from appearing at the main hearing for a long or indefinite period.

The rules concerning an appeal on points of law against judgments of the criminal courts are to be found in Articles 333 to 358 of the Code of Criminal Procedure. Article 337 stipulates that such appeal may be filed only on the ground that the judgment was based upon a violation of law. According to 345 (2) representation by counsel is mandatory for submission of the appeal. Article 349 (2) and (3) stipulates that t he court may, upon a reasoned application by the public prosecution authorities, dismiss a convict ’ s appeal on points of law by unanimous decision and without a hearing in the event it deems the appeal to be manifestly ill-founded. The public prosecution authorities shall notify the complainant of such application and the reasons advanced in its support. The complainant may submit a written response to the appellate court within two weeks. If the latter does not follow the prosecution ’ s request and holds a hearing it shall decide on the appeal by means of a judgment.

COMPLAINTS

The applicant alleges that the criminal proceedings conducted against him before the Göttingen Regional Court and Federal Court of Justice violated his right to a fair trial under Article 6 of the Convention.

As regards the proceedings before the Göttingen Regional Court at first instance he complains under Article 6 § 3(d) of the Convention that neither he nor counsel had been granted an opportunity at any stage of the criminal proceedings to examine the only direct witnesses and victims of the crime allegedly committed by him in Göttingen in February 2007 and on whose testimony the applicant ’ s related conviction relied. The applicant maintained in this connection that it had been imputable to the domestic authorities that the witnesses could not be examined by the defence. While the witnesses had been heard by an investigating judge at the pre-trial stage, neither the applicant nor counsel had been informed of the hearing in violation of Article 168(c) of the Code of Criminal Procedure and consequently had been deprived of the possibility to attend. Notwithstanding this procedural flaw in the preliminary proceedings, the Regional Court had the minutes of the witnesses ’ interviews by the investigating judge read out in the course of the applicant ’ s trial and admitted them as evidence. Furthermore, the domestic authorities had not availed themselves of all appropriate means to ensure that the witnesses be available to testify at trial.

Relying on Article 6 § 1 of the Convention the applicant further alleges that his right to a public hearing had been breached on the ground that the Federal Court of Justice had dismissed his appeal on points of law against the Regional Court ’ s judgment following a written procedure and without providing any reason s in its related decision of 30 October 2008. The lack of any reasoning in the Federal Court of Justice ’ s decision made it impossible for the accused to verify whether his right to be heard had been respected by the court and was furthermore contrary to the requirements of the Code of Criminal Procedure. Hence, the decision of the Federal Court of Justice did not comply with the formal requirements of domestic law and the execution of the applicant ’ s prison sentence imposed in the criminal proceedings at issue consequently infringed Article 5 § 1 of the Convention.

The applicant contends in this connection that relying on Article 349 (2) of the German Code of Criminal Procedure it had become the Federal Court of Justice ’ s established practice to dismiss, at the public prosecutor ’ s reasoned request, appeals lodged by the accused by means of a decision without holding a hearing and without providing reasons for the dismissal. By contrast, in the event of appeals lodged by the public prosecution authorities a hearing was scheduled as a rule by the Federal Court of Justice and the appellate proceedings were concluded by a reasoned judgment. Such practice infringed the right of the accused to an oral hearing as well as the principle of equality of arms, both constituting aspects of the right to a fair trial guaranteed by Article 6 § 1 of the Convention.

Furthermore, the fact that German criminal procedure requested an accused to be represented by counsel when lodging an appeal on points of law and at the same time did not provide him with the possibility to compel the appellate court to hold a hearing amounted to a denial of his right to defend himself in person pursuant to Article 6 § 3(c) of the Convention.

QUESTIONs TO THE PARTIES

Was the applicant ’ s right to a fair trial provided by Article 6 §§ 1 and 3(d) of the Convention infringed by the fact that neither the applicant nor counsel had been given the opportunity to examine O. and P., the only direct witnesses and victims of the cr ime committed in Göttingen on 3 February 2007, at any stage of the proceedings? In this connection, did the domestic authorities take the necessary steps so as to enable the applicant or counsel to examine the witnesses at the investigative stage or at trial?