Meng v. Germany (European Court of Human Rights)

Information Note on the Court’s case-law 248
February 2021

Meng v. Germany1128/17

Judgment 16.2.2021 [Section III]

Article 6
Criminal proceedings
Article 6-1
Impartial tribunal

Objective impartiality doubts as to judge presiding over applicant’s case, who previously sat in separate proceedings which made extensive findings prejudging her guilt: violation

Facts – The applicant was convicted of jointly murdering her husband with G.S., her partner at the time. The Regional Court in the applicant’s case was presided by judge M., who had been judge rapporteur in the previous, separate criminal proceedings conducted against G.S. alone. The judgment against G.S. contained extensive findings of fact and law in respect of the applicant’s participation in the offence. The applicant appealed unsuccessfully against her conviction, complaining that judge M. had not been impartial in her case.

Law – Article 6 § 1:

There was nothing to indicate that judge M. had acted with personal prejudice in the proceedings against the applicant (subjective test). The Court therefore had to determine whether the participation of M. as judge rapporteur in the previous proceedings against G.S. had led to an objectively justified fear that judge M. had not been impartial (objective test).

The Court noted at the outset that M. was a professional judge, who had to be considered more trained, accustomed and prepared than a lay judge to disengage himself from the experience and findings of the previous trial against G.S. Furthermore, in the proceedings against the applicant, the Regional Court, presided by judge M., itself had taken witness and expert evidence, making fresh findings of fact and a legal analysis on that basis, and without any references to and reliance on the findings in the judgment against G.S. The facts established had differed in some details from those established in the judgment against G.S. While those were important elements in the examination of the question of whether the Regional Court had met the requirement of impartiality in the applicant’s case, they did not exempt the Court from examining whether the judgment against G.S. had contained findings that had actually prejudged the question of the applicant’s guilt.

The references to the applicant in the judgment against G.S. showed that the applicant had not formally been on trial in those proceedings; her procedural status as a third party (witness) had therefore been clear.

However, the applicant had not been mentioned only in passing in the impugned judgment: it had contained extensive findings of fact also concerning the applicant and had assessed evidence taken at the trial also in respect of the applicant. The Regional Court had presented its findings regarding the applicant as established facts and established legal qualifications thereof, and not as mere suspicions. The firm conviction that the applicant had been a co-perpetrator of the offence had been considered necessary by the Federal Court of Justice to establish the basis for G.S.’s conviction. The judgment against G.S. had contained a detailed assessment of the precise role played by the applicant in the death of her husband, going beyond a factual account of the circumstances of the crime. It had to be seen to establish the criteria necessary for the act to constitute a criminal offence also in respect of the applicant: it had described in detail not only the premeditated killing of the applicant’s husband and the manner in which the joint plan with G.S. had been carried out, but also the base motives of the applicant herself for acting in that manner, namely, that she had wished to acquire her husband’s assets in a reckless manner. The Regional Court could thereby be seen to have made a legal assessment of the act also in respect of the applicant, in that it had found in substance that not only G.S., but also the applicant had acted out of greed and that the latter had thus participated in, and was equally guilty of, the murder. Those findings and the assessment in respect of the applicant had been made despite the fact that G.S. had been charged as a single perpetrator who had been found to have acted alone at the crime scene, and that the legal assessment of the applicant’s acts appeared to go beyond what had been necessary to legally qualify G.S.’s offence. The applicant’s doubts that the Regional Court, including judge M., might have already reached a preconceived view on the merits of her case in the judgment against G.S., prior to her own trial, had also been confirmed by the prosecution’s assessment after that judgment.

The applicant therefore had had a legitimate fear that judge M., in the light of the wording of the judgment against G.S., had already reached a preconceived view on her guilt. The applicant’s doubts as to the impartiality of the Regional Court in the present case had been objectively justified.

While a higher or the highest court might, in some circumstances, make reparation for defects that took place in the first-instance proceedings, the Federal Court of Justice, which had had the power to quash the Regional Court’s judgment on grounds of lack of impartiality, had upheld the applicant’s conviction and sentence. Consequently, the higher court had not remedied the defect in question.

Conclusion: violation (unanimously).

(See also Rojas Morales v. Italy, 39676/98, 16 November 2000; Miminoshvili v. Russia, 20197/03, 28 June 2011)

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