Federal Constitutional Court - Press office -

Press release no. 21/2009 of 5 March 2009

Order of 15 January 2009 – 2 BvR 2044/07 –

New Federal Court of Justice case-law on the deprivation of a challenge
of its factual basis in criminal proceedings constitutional


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. 


This press release is also available in the original german version.