Rejection of appeal in criminal cases possible even without public hearing

Press Release No. 60/2014 of 15 July 2014

Order of 30 June 2014
2 BvR 792/11

In an order published today, the Third Chamber of the Second Senate of the Federal Constitutional Court has decided that the possibility offered by the Code of Criminal Procedure (Strafprozessordnung) of rejecting an appeal on a point of law (Revision) which is clearly unfounded by unanimous order without a public hearing is compatible with the Basic Law (Grundgesetz – GG). It is not required in constitutional terms for reasons to be given for such a decision. In reaching this decision, the Chamber also gave consideration to the right to a fair trial as enshrined in Art. 6 of the European Convention on Human Rights.

Facts of the Case:

The complainant has filed a constitutional complaint challenging the rejection of an appeal on a point of law in a criminal case by means of an order pursuant to § 349 sec. 2 of the German Code of Criminal Procedure (Strafprozessordnung – StPO). He complains that the decision was made without conducting main appeal proceedings and that no reasons have been given for it.

Key Considerations of the Chamber:

1. There are no constitutional objections to the German Federal Court of Justice (Bundesgerichtshof) rendering a decision on the complainant’s appeal by means of an order without a public hearing.

a) Art. 103 sec. 1 GG does not establish any right to a public hearing; it is up to the legislature to decide the manner in which the hearing in accordance with law should be granted. The complainant had the opportunity to put his case fully and comprehensively in his statement of appeal (§ 344 StPO) and in his counter-statement to the application by the Federal Public Prosecutor General (§ 349 sec. 3 sentence 2 StPO). He argues, without substantiation, that he has not been able to state the case for his appeal with sufficient clarity in writing.

b) Conducting main appeal proceedings is not necessary to create procedural “equality of arms”. While it is true that appeals by the Public Prosecutor’s Office, unlike those by the accused, are not generally rejected by an order pursuant to § 349 sec. 2 StPO, the complainant does not, however, demonstrate how the use of this practice for the appeals of accused persons generally or in this specific case results in a diminution of the quality of legal protection.

2. Nor is there any objection on constitutional grounds to the Federal Court of Justice having rejected the complainant’s appeal without giving reasons.

a) In constitutional terms, a court decision at final instance which can no longer be challenged with ordinary legal remedies does not normally require substantiation. In the established case-law of the Federal Constitutional Court, this also applies to orders pursuant to § 349 sec. 2 StPO.

b) There is also no requirement to substantiate the order on the grounds that it would not be possible in the absence of substantiation to make any meaningful decision as to whether a complaint of violation of the right to a hearing in court (Anhörungsrüge) or a constitutional complaint should be raised. In principle it can be assumed that the courts have taken the statements made to them by the parties involved into account in their deliberations. Moreover, rejection of an appeal by an order pursuant to § 349 sec. 2 StPO is contingent upon an application by the Public Prosecutor’s Office which has to be substantiated and disclosed to the appellant with its grounds. The appellate court only has to concur with the Public Prosecutor’s application in its general tenor and not with every part of its reasoning; however, if there is any departure from the Public Prosecutor’s reasoning, it is sensible, and indeed in line with general practice, for the appellate court to include its own legal opinion in a rider to the order. In the absence of such a rider, it can be assumed that the appellate court has concurred with the legal opinion of the Public Prosecutor’s Office.

3. Nor does the rejection of the complainant’s appeal pursuant to § 349 sec. 2 StPO violate the right to a fair hearing pursuant to Art. 6 of the European Convention on Human Rights (ECHR).

a) Under the case-law of the European Court of Human Rights, a deviation from the principle of the public hearing (Art. 6 section 1 sentence 1 ECHR) may be made under certain conditions in legal remedy proceedings. This involves a considerationof the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein. In not conducting main appeal proceedings, the Federal Court of Justice was able only either to reverse the judgment at first instance, which was preceded by a public hearing, and decide in favour of the complainant, or to allow the judgment to become final. Furthermore, the appeal on a point of law (Revision) is limited to an examination of legal questions, which can normally be decided upon on the basis of the case files. An order pursuant to § 349 sec. 2 StPO may moreover only be made if the appeal on a point of law is clearly without prospects of success, and it has to be unanimous. The purpose of this is to enable the resources of the judicial system to be conserved and used wisely so that they can be applied speedily to appeals which promise success and thus put into practice the principle of conducting proceedings within a reasonable time as guaranteed under Art. 6 sec. 1 ECHR).

b) The fact that the Federal Court of Justice did not provide reasons for its decision on the complainant’s appeal on a point of law is moreover consistent with Art. 6 ECHR. A fundamental duty to give appropriate reasoning in court judgments can be inferred from Art. 6 ECHR as interpreted by the European Court of Human Rights; this duty depends, however, on the nature of the decision and has to be determined in the light of the circumstances of each individual case. An appellate court which rejects an appeal may, in principle, limit itself to concurring with the reasoning of the judgment being challenged. In the case of national superior courts, moreover, the European Court of Human Rights considers it to be consistent with the Convention if such courts dispense with giving exhaustive grounds for the non-acceptance of appeals which are clearly unfounded, and merely refer to the provision allowing for such procedure.