Published on 7 November 2022

THIRD SECTION

Application no. 16678/22 C.O. against Germany lodged on 30 March 2022 communicated on 17 October 2022

SUBJECT MATTER OF THE CASE

The application concerns the fairness of pending criminal proceedings against the applicant C.O., notably the presumption of innocence.

C.O. is one of the beneficial owners and personally liable shareholders of a German private bank and, from 2014 to 2019, was chairman of the bank’s supervisory board. The bank has been implicated in the so-called “cum-ex” scheme, a large-scale tax fraud scheme by which significant dividend tax refunds were obtained under false pretences. In 2016, the Cologne Public Prosecutor’s Office initiated preliminary proceedings against C.O. for tax evasion. These proceedings are still ongoing, C.O. has not been indicted thus far.

On 18 March 2020 the Bonn Regional Court sentenced two bankers for tax evasion in connection with the “cum-ex” scheme. In its written judgment, the court frequently mentioned C.O.’s role in the offences committed by the bankers, referring to him as a “separately prosecuted person” and stating, inter alia , that he had intentionally committed a criminal offence under the Fiscal Code according to a joint plan of action which he had devised together with other implicated persons.

The Federal Court of Justice largely rejected the appeals on points of law lodged by the two bankers, the bank and the Public Prosecutor’s Office, also referring to C.O. in almost the same manner as the Regional Court.

On 20 October 2021 C.O. lodged a constitutional complaint against the criminal courts’ decisions, claiming that the statements regarding his involvement in the offences committed by the bankers had prematurely depicted him as guilty and thus breached his right to be presumed innocent. He also claimed that the impugned statements had severely damaged his reputation and public image before his criminal trial had even started, and thus violated his personality rights.

On 22 November 2021 the Federal Constitutional Court decided not to accept the constitutional complaint for adjudication.

C.O. invokes Article 6 § 2 of the Convention, arguing that the statements regarding his involvement in the offences committed by the two bankers in the decisions of the criminal courts amount to a premature expression of his guilt. He complains that the courts did not simply describe his alleged actions but rather assessed and classified them from a legal point of view, that they clearly and strongly expressed their conviction that he was guilty, that they did not emphasise that his guilt could only be established in the separate criminal proceedings pending against him, and that the impugned statements were entirely unnecessary to establish the guilt of the two bankers, who had assumed responsibility for their actions and cooperated with the authorities.

Furthermore, C.O. alleges under Article 8 § 1 of the Convention that the impugned statements in the decisions of the criminal courts adversely affected his private and professional life, notably by prompting press releases and media reporting in which he was unfairly depicted as a main perpetrator in the “cum-ex” scheme.

QUESTIONS TO THE PARTIES

1. Has there been a violation of C.O.’s right to be presumed innocent under Article 6 § 2 of the Convention because of the statements regarding his involvement in the offences committed by the two bankers in the decisions of the Regional Court and the Federal Court of Justice?

In particular, having regard to the principles established by the Court notably in its judgments in the cases of Karaman v. Germany (no. 17103/10, 27 February 2014) and Bauras v. Lithuania (no. 56795/13, 31 October 2017),

(a) To what extent do the impugned statements constitute a premature expression of guilt?

(b) What is the connection between C.O. and the convicted bankers?

(c) To what extent were the impugned statements necessary to establish the guilt of the bankers?

(d) Have the courts taken all necessary precautions to avoid any impression of a premature expression of C.O.’s guilt?

(e) Is the fact that the courts referred to C.O. as a “separately prosecuted person” enough to exclude a violation of his right to be presumed innocent?

(f) Have the courts sufficiently made it clear that C.O.’s guilt could only be established in the separate criminal proceedings pending against him?

(g) Is the fairness of the criminal proceedings against C.O. seriously called into question because of the impugned statements?

2. Has there been a violation of C.O.’s right to respect for his private life under Article 8 § 1 of the Convention because of the statements regarding his involvement in the offences committed by the two bankers in the decisions of the Regional Court and the Federal Court of Justice, notably because of the impact of those statements on C.O.’s reputation?