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New Federal Court of Justice case-law on the deprivation of a challenge of its factual basis in criminal proceedings constitutional
Press Release No. 21/2009 of 05 March 2009
Order of 15 January 2009
2 BvR 2044/07
The new case-law of the Federal Court of Justice (Bundesgerichtshof) on the issue of the cessation, to the detriment of the accused, of the relevant factual basis of an admissibly lodged procedural challenge (deprivation of a challenge of its factual basis, Rügeverkümmerung) in criminal proceedings observes the constitutional bounds of the judicial finding of justice; also with a view to the accused's rights to a fair trial and to effective legal protection, it does not meet with constitutional objections. This was decided by the Second Senate of the Federal Constitutional Court in the above-mentioned ruling.
The complainant had been sentenced to a term of imprisonment of three years and nine months for grievous bodily harm. In the proceedings on appeal on points of law, he alleged by means of a procedural challenge that the bill of indictment had not been read out in the main hearing before the trial court. To prove the allegation, the complainant made reference to the record of the hearing, in which the reading out of the bill of indictment had not been recorded. The chairman of the Criminal Division thereupon brought proceedings for the rectification of the record. After all members of the division, the clerk of the court and the representative of the public prosecutor's office at the hearing had declared that the bill of indictment had indeed been read out, the record was rectified accordingly.
The First Criminal Senate of the Federal Court of Justice, which was competent for the proceedings on appeal on points of law, considered the procedural challenge unfounded because it held the view that the rectification of the record was relevant. The Senate, however, found that it was prevented by the existing case-law on the ban on the deprivation of a challenge of its factual basis from dismissing the appeal as it had intended. According to this case-law, which had already been established by the Imperial Court (Reichsgericht), a rectification of the trial judge's record was exceptionally irrelevant to the court of appeal dealing with appeals on points of law if the rectification of the record deprived a procedural challenge that had already been lodged of its basis in the record.
The First Criminal Senate therefore referred the matter to the Grand Senate for Criminal Matters of the Federal Court of Justice for a decision. The Grand Senate departed from its previous case-law on the ban on the deprivation of a challenge of its factual basis by holding that an admissible rectification of the record, even if it is to the detriment of the complainant, can indeed deprive a procedural challenge that has already been duly lodged of its factual basis. In the run-up to a rectification of the record that would lead to the deprivation of the challenge of its factual basis, the authenticators, however, had to hear the complainant, and if the complainant objected to the rectification of the record in a substantiated manner, they had to give reasons for their decision to rectify the record. The Grand Senate further held in the context of the procedural challenge lodged, the question as to whether the rectification of the record was relevant was subject to the review of the court of appeal dealing with appeals on points of law; in cases of doubt, the unrectified version of the record was valid. On the basis of this new case-law on the deprivation of a challenge of its factual basis, the First Criminal Senate dismissed the complainant's appeal on points of law as unfounded.
The Second Senate of the Federal Constitutional Court rejected the complainant's constitutional complaint which was directed against this ruling; it gave the following reasoning for its decision:
The appeal decision of the First Criminal Senate of the Federal Court of Justice observes the constitutional bounds of the judicial finding of justice. The Grand Senate for Criminal Matters of the Federal Court of Justice justifiably assumed that the Code of Criminal Procedure (Strafprozessordnung - StPO) shows a gap as regards the admissibility and relevance of the rectification of a record that results in a deprivation of a challenge of its factual basis, and it filled the gap in a constitutionally unobjectionable manner. The new case-law on the issue of the deprivation of a challenge of its factual basis is also in harmony with the accused's rights to effective legal protection and to a fair trial. It grants the accused effective protection from unjustified rectifications of records. In addition, the admission of rectifications of records that result in depriving a challenge of its factual basis make it possible for the courts to counteract the phenomenon of untrue procedural challenges that are based on the record. Thus it satisfies the constitutional concern of an efficient administration of criminal justice, the principle of expediting proceedings and the aspect of the protection of victims.
In essence, the decision is based on the following considerations:
The new case-law of the Federal Court of Justice concerning the relevance of subsequent rectifications of records does not meet with any objections as regards the constitutional bounds of the judicial finding of justice. The appeals courts' view that the Code of Criminal Procedure shows a regulatory gap which is contrary to the intended objectives of the Code is unobjectionable. The Code itself does not contain a regulation concerning the subsequent rectification of records, and the legislative history of the Code of Criminal Procedure also does not provide any clear indications in this respect. The legislative materials do not mention the case of the subsequent rectification of records.
The new case-law also does not ignore the legislature's decisions laid down in § 274 StPO to the extent that it assumes that in the case of a subsequent rectification of records, the exclusive probative value pursuant to § 274 StPO in principle passes on to the rectified version of the record. The probative value in principle passing on to the rectified version of the record does not contradict § 274 StPO. § 274 sentence 1 StPO sets out that the observance of the formalities prescribed for the main hearing can only be proved by "the record"; thus, it is left open which version of the record - the original one or the rectified one - is intended to have the exclusive probative value in the case of a subsequent rectification of the record.
Also the regulation provided in the order of the Grand Senate for Criminal Matters, according to which in the context of the procedural challenge lodged, the relevance of rectifications of records that result in the deprivation of a challenge of its factual basis is subject to the review of the court of appeal on points of law observes the constitutional bounds of the judicial finding of justice. It is true that according to § 274 StPO, the observance of these formalities may in principle not be made the direct subject of the taking of evidence in the appellate instances. However, the new case-law does not open the possibility of directly taking such evidence concerning essential formalities of the main proceedings. Instead, the courts of appeal on points of law are merely authorised, and obliged, to examine the "relevance of the rectification of the record". It is only in this context that the courts of appeal on points of law have to examine the observation of the essential formalities of the main proceedings.
The Federal Court of Justice also has not overstepped the bounds of judicial finding of justice by abandoning the ban on depriving a challenge of its factual basis. It is one of the acknowledged tasks of the administration of justice to examine, within the bounds of the laws, the legal rules that it has established as legal principles, and to further develop them if necessary. The circumstance that a legal rule that had been obtained by means of the judicial finding of justice has been adhered to for a long period of time may be an aspect to be considered in the decision as to whether it is justified to establish a different legal rule; it does, however, not confer to the previous legal rule a higher value or even a guarantee of continued existence that is relevant under constitutional law.
The challenged ruling which dismissed the appeal on points of law also does not violate the complainant's right to effective legal protection and to a fair trial. A violation of the right to a fair trial only exists if an overall view of procedural law - also in its interpretation and application by the courts - shows that conclusions which are mandatory in a state under the rule of law have not been drawn or something which is indispensable in a state under the rule of law has been abandoned.
This overall view must also have regard to the requirements of an efficient administration of criminal justice. The principle of the rule of law, which contains the idea of justice as an essential element, not only demands a fair drafting and application of the law of criminal procedure. It also permits and demands that the concerns of an efficient administration of criminal justice, without which justice cannot be brought to fruition, be taken into account. The state under the rule of law can only realise itself if sufficient precautions have been taken to ensure that, within the bounds of the applicable laws, criminals are prosecuted and adjudged and receive a just punishment.
When lending concrete shape to the right to a fair trial, the constitutional principle of expediting proceedings must also be taken into account. An efficient administration of justice requires not only the enforcement of the state's claim to prosecution as such, but also its enforcement in so short a period of time that the legal community can still perceive the punishment as a reaction to a wrong committed.
According to these principles, the challenged ruling dismissing the appeal on points of law does not meet with constitutional objections. The admission of rectifications of minutes that result in a challenge being deprived of its factual basis makes it possible for the courts to counteract the phenomenon of untrue procedural challenges that are based on the record, thus satisfying the constitutional concern of an efficient administration of criminal justice, the principle of expediting proceedings and the aspect of the protection of victims. The new case-law grants the accused who lodges an appeal on points of law effective protection from unjustified rectifications of records through a rectification procedure that must be adhered to and through an obligation on the part of the court of appeal on points of law to examine the rectification. Apart from that, an overall view of appeals on points of law under criminal law shows that in the past years and decades their system of coordinates has not at all shifted one-sidedly to the detriment of the accused. On the contrary, abandoning the ban on the deprivation of a challenge of its factual basis proves to be part of an overall development of the law on appeals on points of law by which the aspects of substantive truth and of justice in the individual case are given special emphasis in the review by the courts of appeal on points of law.
Dissenting opinion of Vice-President Voßkuhle, Judge Osterloh and Judge Di Fabio
Vice-President Voßkuhle Judge Osterloh and Judge Di Fabio hold the view that the Senate misjudges the constitutional bounds of the judicial finding of justice. They argue as follows:
When engaging in the review of the constitutionality of the manner in which the law is further developed by judges, the Federal Constitutional Court may not restrict itself to performing a mere examination of justifiability, as the Senate seems to assume. Unlike in case of the examination of errors in the application of the law, where the Federal Constitutional Court's limited intensity of review is justified by considerations of its function, the examination of the manner in which the law is further developed by judges is about the delimitation of the competences of the legislative and the judicative powers. This is an original question of constitutional law, with regard to which the Federal Constitutional Court has to decide whether the non-constitutional court disregarded a sufficiently clearly ascertainable will of the legislature, replacing it by its own regulatory concept which it regarded as preferable, thereby abandoning its being bound by the law. In this context, it is not decisive whether the procedure introduced by the non-constitutional court really appears more expedient or appropriate than the model provided by the law. The principle of democracy and the functional structure of the Basic Law would suffer serious damage if the administration of justice could disregard the clear fundamental decision taken by the legislature any time if it regarded the consequences of such a decision as "inexpedient" and the legislature did not act "as desired". Clearly recognisable legislative regulatory concepts are to be respected by the judge.
According to these standards, the First Senate for Criminal Matters of the Federal Court of Justice overstepped the bounds of the further development of the law by judges by introducing a procedure for the rectification of records with the possible legal consequence of the relevance of the rectified version in proceedings on appeal on points of law and thereby replacing the legislative concept, which is clearly expressed in § 274 StPO, by its own concept that it perceives as preferable.
By adopting § 274 StPO, the legislature, against the backdrop of alternative regulatory models that exist in other legal systems, decided in favour of a specific concept explicitly and with a detailed statement of reasons. The central characteristic of this concept is that a subsequent reconstruction of the main hearing in proceedings on appeal on points of law under the aspect of the observance of essential formalities - contrary to the facts recorded -which relies on the memory of parties to the proceedings should be ruled out. This approach had been chosen to release the proceedings on appeal on points of law from points of fact and because there had been reservations, which had been fundamental as well as understandable, about the ability to remember of those involved in proceedings. The intention had been to prevent instances that had not been set up for the finding of facts from having to take evidence on steps in the proceedings and from having to establish in an individual case that the memory of the persons involved in the proceedings was certain or uncertain. Thus, § 274 StPO expresses the legislature's fundamental decision to have considerations of expedience and legal certainty prevail over the investigation of the substantive truth, which was emphasised by the Senate, in the narrow area of application of the essential formalities. The courts of appeal on points of law are bound by this fundamental decision, even if it may lead, in the individual case, to the "undesirable" result of the rescission of the judgment and the new trial of the matter. The legislature's fundamental decision is clearly expressed in the provision of § 274 StPO by its conferring the record absolute probative value and excluding, with the exception of the proof of forgery, any evidence against the incorrectness of the recorded facts.
Dissenting opinion of Judge Gerhardt
Judge Gerhardt concurs with the decision of the Senate as regards its result, but holds the view that the Senate's considerations on the observation of the bounds of the judicial finding of justice have overstepped the Federal Constitutional Court's competences. He argues that the interpretation of laws and the further development of the law are the task of the non-constitutional courts, which are integrated into a complex system of appeals. This system ensures, also in practice, that fundamental issues are not decided with judicial "high- andedness", i.e. without the willingness to be bound by law and statute. It is not for the Federal Constitutional Court to take on the role of an instance of ultimate appeal by reviewing, and retracing under non-constitutional law, the compatibility of a decision of a supreme federal court with the findings on the legal situation which the Federal Constitutional Court made itself, and possibly with considerable effort.