Summary:

I.

In August 2009, the Criminal Code (Strafprozessordnung – StPO) was amended through the insertion of § 257c, which makes it possible for the parties to criminal proceedings to agree on the legal consequences of a sentence in what is referred to as a “deal”.

The constitutional complaint in the present case is not concerned with the constitutionality of deals in criminal trials or their statutory basis. The real issue is the scope of an appellate courts’ duty to investigate the facts when examining whether a deal was made and whether a waiver of appeal was therefore invalid. Sentence 2 of § 302.1 of the Criminal Code prevents the parties to proceedings from validly waiving an appeal against a sentence if sentencing was preceded by a deal.

With regard to the court’s duty of documentation, § 273.1a of the Criminal Code provides that the court record of the trial must show the main events leading to a deal and its content. Similarly, if no deal is reached, this must also be recorded.

On the basis of his confession, the applicant was sentenced by the Local Court (Amtsgericht) to imprisonment for a total of two years and ten months for committing various crimes. After the court had handed down its sentence and the cancellation of the warrant of arrest, the public prosecutor and the applicant waived their rights of appeal. The applicant later lodged an appeal against the judgment and claimed that his waiver of an appeal had been invalid because his sentence was based on a deal between the parties to the proceedings. Neither the court record nor the judgment contains any indication as to whether a deal was or was not reached. The court record simply contains a note that the trial was interrupted for a “legal discussion” before the accused gave his answer to the charge. The parties to the proceedings, however, give different accounts of the course of the discussion and its content. According to a written statement from the applicant’s defence lawyer, the parties agreed on a sentence of two years and ten months in return for the cancellation of the arrest warrant. On the other hand, according to an official statement from the public prosecutor’s representative at that hearing, no real discussion about a particular measure of sentence took place. She stated she had been primarily concerned with an extension of pre-trial detention, while the applicant’s chief objective was the cancellation of the warrant of arrest. The presiding judge of the criminal court consisting of a professional judge and two lay judges stated officially that he could no longer recall the exact course of events.

The Regional Court (Landgericht) dismissed the applicant’s appeal as inadmissible because it found that it had not been proven that a deal had been made. It held that the waiver of the appeal was, therefore, valid. The objection immediately raised against the decision was unsuccessful before the Higher Regional Court (Oberlandesgericht). The Higher Regional Court found that the assumption that the waiver of an appeal was valid was unobjectionable. Since the court record did not contain the information required by § 273.1a of the Criminal Code, it had no probative value. Furthermore, due to the discrepancy in the statements by the defence lawyer and the public prosecutor’s representative, the applicant was unable to provide sufficient proof during informal evidentiary proceedings to convince the Senate of the Higher Regional Court that a deal had been made.

II.

The Federal Constitutional Court overturned the order of the Higher Regional Court challenged by way of constitutional complaint because it violated the applicant’s fundamental procedural right to a fair criminal trial (Sentence 2 of Article 2.2 in conjunction with Article 20.3 of the Basic Law). The matter was referred to the Higher Regional Court for a renewed decision.

The order of the Higher Regional Court deviates from the requirements placed on judges to investigate the facts in a manner which is constitutionally unacceptable. The court should have conducted further investigations into the facts if for no other reason than it was obvious that the official statement of the public prosecutor’s representative contained contradictions. She claimed, on the one hand, that her primary objective had been to maintain the applicant’s pre-trial detention. On the other hand, she had herself applied to have the arrest warrant cancelled during the trial. In addition, the Higher Regional Court should have obtained statements from the lay judges and the court recorder since, according to the defence lawyer’s uncontested statement, discussions had been continued in the court room.

In addition, whatever residual doubt that there was should not have been weighed against the applicant. It is true that it is in principle not constitutionally objectionable if, following an investigation into the facts during informal evidentiary proceedings, failure to eliminate doubt concerning procedural facts is, as a rule, held against the accused. However, this no longer applies if the reason that the facts cannot be determined can be traced back to a violation of a duty of documentation imposed by statute.