Order of 15 January 2009

R e a s o n s:

A.

1

The constitutional complaint concerns the issue of whether the recent case-law of the Federal Court of Justice (Bundesgerichtshof) on the question of corrections to the record that nullify procedural complaints is compatible with the constitutional rights of a defendant in criminal proceedings.

I.

2

The admission of retroactive corrections to the record and the extent to which a court deciding on appeals on points of law (hereinafter ‘appellate court’) may rely on them are not expressly set out in criminal procedure law. § 274 of the Code of Criminal Procedure (Strafprozessordnung – StPO) merely contains a general provision on the significance of the trial court’s record in appellate proceedings on points of law. It provides as follows:

3

§ 274

Observance of the formalities stipulated for the main hearing can be proved only by means of the record. Only proof of forgery is admissible in respect of the content of that part of the record which relates to these formalities.

4

Even during the period of the Reich Court, the admissibility of retroactive corrections to the record was recognised – albeit after some initial back and forth on the issue. According to this jurisprudence, which continued with the Federal Court of Justice, a retroactive correction to the record both to the benefit and to the detriment of an appellant is possible. In the event of a correction to the record, the probative value under § 274 of the Code of Criminal Procedure is generally transferred to the record as corrected.

5

According to the prior case-law, an exception to the foregoing would only apply if a correction to the record removed the basis for a procedural complaint that had previously been raised. In this event, the probative value under § 274 of the Code of Criminal Procedure remains assigned to the unaltered record. The evidentiary grounds for a properly raised procedural complaint therefore cannot be removed through a retroactive correction to the record.

6

In its order of 23 April 2007 (Decisions of the Federal Court of Justice in Criminal Matters, Entscheidungen des Bundesgerichtshofes in Strafsachen – BGHSt 51, 298, - Grand Panel for Criminal Matters, Großer Senat für Strafsachen – GSSt 1/06 -), the Grand Panel for Criminal Matters of the Federal Court of Justice has moved away from this prior case-law, known as the prohibition against corrections to the record that nullify procedural complaints (Verbot der Rügeverkümmerung). In the case of retroactive corrections to the record that nullify previously made procedural complaints, the following should now apply:

7

1. An admissible correction to the record can eliminate the factual basis for a properly raised procedural complaint to the detriment of an accused appellant.

8

2. In such a case, the appellant must be heard by the persons responsible for the record [the registry clerk and the presiding judge] before any such correction of the record. If the appellant can substantiate an objection to the correction, then the other participants involved in the proceedings must be questioned to the extent necessary. Should the persons responsible for the record sustain the correction to the record despite the challenge, then their decision to do so must include reasons.

9

3. The relevance of the correction is subject to review by the appellate court as part of the procedural complaint. In cases of doubt, the unaltered version of the record applies.

II.

10-14

[…]

III.

15

1. The complainant was convicted by the three professional judges and two lay judges of the first criminal division (Schwurgericht) of the Munich Regional Court (Landgericht) of causing bodily harm by dangerous means and sentenced to prison for three years and nine months. He challenged this judgment by way of an appeal on points of law and, in addition to his substantive complaint, also raised a procedural complaint asserting that the indictment was not read out at the trial hearing in violation of § 243(3) first sentence of the Code of Criminal Procedure. As proof of this contention, the complainant invoked the probative value of the absence of the reading of the indictment from the record.

16

2. The presiding judge of the criminal division initiated a proceeding to correct the record. The members of the criminal division, the representative of the public prosecution office and the registry clerk in charge of taking the record confirmed in official statements that the indictment had been read. The registry clerk explained that the absence of the indictment in the record was the result of an error in the transcription of her handwritten notes into electronic form. Her handwritten notes, which indicated that the indictment had been read, were attached to the official statement.

17

The presiding judge advised the complainant that the record was to be amended at the relevant point with the inclusion of the sentence

18

‘The representative of the public prosecution office read the indictment.’

19

and gave the complainant the opportunity to respond. The defence counsel who represented the complainant in the proceedings before the criminal court gave the following declaration:

20

‘I cannot recall this specific moment of the proceedings; the reading of the indictment is a routine procedure. However, I assume I would have remembered if the indictment were not read, as that would constitute an unusual procedural occurrence. This consideration has not prompted any concrete memory. On this basis, it appears to me quite possible that the recollection of the persons responsible for the record is correct.’

21

Shortly thereafter, the presiding judge of the criminal division and the registry clerk carried out the announced correction of the record.

22

3. a) The first criminal panel (1. Strafsenat) at the Federal Court of Justice, which was responsible for hearing the complainant’s appeal on points of law, found the claimed violation of § 243(3) first sentence of the Code of Criminal Procedure to be unfounded. It determined the correction of the record to be relevant, abandoning its prior case-law on the prohibition against corrections that nullify procedural complaints. The first criminal panel viewed itself as being prevented from going forward with its contemplated rejection of the appeal by the conflicting case-law of the other criminal panels. [...]

23

b) […]

24

c) In an order dated 23 August 2006 (-1StR 466/05-, Neue Juristische Wochenschrift –NJW 2006, p. 3582) the first criminal panel referred the following question to the Federal Court of Justice’s Grand Panel for Criminal Matters pursuant to § 132(2) and (4) of the Courts Constitution Act (Gerichtsverfassungsgesetz – GVG):

25

‘Is court deciding on the appeal on points of law required to consider the probative value (§ 274 Code of Criminal Procedure) of a revised record relevant when, as a result of a correction to the record, the factual basis for a permissible procedural complaint raised by the accused is nullified to the accused’s detriment?’

26

d) On 23 April 2007, the Grand Panel for Criminal Matters of the Federal Court of Justice issued the order described under A. I. above. It ruled that, in principle, the unrestricted consideration of the retroactive correction to the record did not violate the law. It is true that the only counterevidence allowed by § 274 second sentence of the Code of Criminal Procedure to challenge the authenticity of the record is proof of forgery. However, a correction by means of an official statement from the persons responsible for the record includes a revocation of the earlier certification of the record and, in regard to the content of the correction, deprives the original record of its absolute probative value, so that counterevidence is no longer necessary. According to the Grand Panel, there is no support in the law for the assumption that the receipt of grounds for an appeal on points of law establishes a special procedural right to maintain the factual basis for the complaint as is. The duty of the appellate courts to be truthful, which is now given additional weight by considerations of victim protection and the requirement of speedy justice, argues in favour of abandoning the prohibition against corrections that nullify procedural complaints, which is a creation of case-law and therefore can also be changed through case-law. A change in defence lawyers’ attitude on the practice of basing procedural complaints on untrue submissions also weighs in favour of abandoning the prohibition against corrections that nullify procedural complaints. While a deliberately untruthful procedural complaint used to be considered professional misconduct, today it is considered legal malpractice not to make use of an error in the record in a way that another defence lawyer would use to justify the appeal. The procedure described in the operative part of the order, which must be observed when correcting the record in order to ensure the effectiveness of legal remedies against judicial decisions and the right of the accused to a fair trial, guarantees the accuracy of the retroactive correction to the record.

27

e) In an order dated 23 August 2007 (-1StR 466/05-, Neue Zeitschrift für Strafrecht – NStZ 2007, p. 719) the first criminal panel of the Federal Court of Justice rejected the complainant’s appeal on points of law as unfounded in accordance with § 349(2) of the Code of Criminal Procedure. The complaint of a violation of § 243(3) first sentence of the Code of Criminal Procedure was unfounded based on the order of the Grand Criminal Panel of 23 April 2007. The corrected record proved that the reading of the indictment had taken place (§ 274 Code of Criminal Procedure). In addition, the correction to the record had been carried out in accordance with the requirements of the Grand Panel for Criminal Matters. [...].

IV.

28

With his constitutional complaint, the complainant challenges the order of the first criminal division of the Federal Court of Justice dated 23 August 2007 rejecting his appeal on points of law. He claims violations of Art. 1(1), Art, 2(1), Art. 2(2) second sentence, Art. 3(1), Art. 19(4) and Art. 20(3) of the Basic Law (Grundgesetz – GG).

29-32

[…]

V.

33

The Federal Ministry of Justice, the President of the Federal Court of Justice and the Public Prosecutor General at the Federal Court of Justice were offered the opportunity to submit statements to the Senate pursuant to § 94(2) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). The President of the Federal Court of Justice provided statements from the presiding judges of the second, third, fourth and fifth criminal panels. The Public Prosecutor General at the Federal Court of Justice stated that in his opinion the constitutional complaint was unfounded. On behalf of the Federal Government, the Federal Ministry of Justice abstained from providing a statement.

B.

34

The constitutional complaint is unfounded.

35

The order of the first criminal panel of the Federal Court of Justice dated 23 August 2007 does not violate the complainant’s constitutional rights.

I.

36

The challenged order rejecting the appeal on points of law falls within the constitutional limits of judicial law-making and therefore does not violate the complainant’s rights arising out of Art. 2(1) in conjunction with Art. 20(2) second sentence and Art. 20(3) of the Basic Law.

37

1. The interpretation of statutory law, including the choice of which method of interpretation is to be applied, is left to the ordinary (non-constitutional) courts and cannot be comprehensively reviewed for correctness by the Federal Constitutional Court. The Federal Constitutional Court limits its review, including in cases involving the observance of competences as defined by Art. 20(2) second sentence and Art. 20(3) of the Basic Law, to whether the ordinary court respected the fundamental decisions made by the legislator in its decision-making and whether it made use of recognised methods of statutory interpretation in a tenable manner (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 82, 6 <13>; 96, 375 <394 f.>; 111, 54 <81 f.>). These principles also apply in the context of criminal procedure law.

38

2. Measured against these standards, the new case-law of the Federal Court of Justice on the relevance of retroactive corrections to the record does not raise any concerns. In particular, the established case-law of the criminal courts, including that which the new concept is based upon, which provides that a correction to the record is permitted and is necessary regardless of any time limit, is not objectionable in regard to the constitutional limits of judicial law-making (see a) below). The same applies for the assumption that the probative value under § 274 Code of Criminal Procedure transfers in principle to the corrected record, but that the relevance of a correction which eliminates the factual basis of a complaint is subject to review by the appellate court as part of the assessment of the procedural complaint (see b) below). The abandonment of the prohibition against corrections to the record that nullify procedural complaints also falls within the constitutional limits of judicial law-making (see c) below).

39

a) The established case-law of the criminal courts that forms the basis of the challenged decision, according to which a correction to the record is permitted and is necessary irrespective of any time limit, assumes that the Code of Criminal Procedure contains an unintended gap in the law with regard to the admissibility of retroactive corrections to the record (cf. Decisions of the Supreme Court of the German Reich in Criminal Matters, Entscheidungen des Reichsgerichts in Strafsachen – RGSt 43, 1 <3 f.>; BGHSt 2, 125; 51, 298 <302>). This assumption is not objectionable under constitutional law.

40

The law itself does not contain any express provisions regarding retroactive corrections to the record. Nor does the Official Commentary to the Draft Code of Criminal Procedure from 1873 (Motive zur Strafprozessordnung) provide any clear indications in this regard. Retroactive corrections to the record – including a case in which the persons responsible for the record witnessed the events in the main hearing and also remember them – are not mentioned in the Commentary. The Commentary only notes that ‘events that have escaped the attention of the members of the court during the trial’ or ‘which may have occurred at trial unbeknownst to the members of the Court or other participants in the proceedings’ and assumes that such events usually cannot be reliably determined, even retrospectively ([…]).

41

The position taken by the courts that the Code of Criminal Procedure contains a gap with respect to the question of the admissibility of retroactive corrections to the record has not been rendered invalid by a contrary decision of the legislator. It is true that in the Act to Reduce the Workload of the Regional Courts and Simplify the Record of Legal Proceedings of 20 December 1974 (Federal Law Gazette, Bundesgesetzblatt – BGBl. I p. 3651) (hereinafter the ‘Act’), the legislator established express rules on retroactive corrections to the record with respect to all codes of procedure with the exception of the Code of Criminal Procedure. Nevertheless, this cannot be regarded as a legislative decision against retroactive corrections to the record in criminal proceedings.

42

This is due to the objective pursued by the Act. Its primary purpose was to simplify and speed up civil proceedings in the regional courts. To this end, the provisions relating to the taking of the record, among other things, were revised. Provisions regarding retroactive corrections to the record were also added consistent with the existing case-law (§ 164 Code of Civil Procedure, Zivilprozessordnung – ZPO; Bundesrat document, Bundesratsdrucksache – BRDrucks 551/74, p. 63). The new provisions were adopted by way of reference in the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung – VwGO §173), Code of Finance Court Procedure (Finanzgerichtsordnung – FGO § 155) and the Social Courts Act (Sozialgerichtsgesetz – SGG § 202), all codes for which the Code of Civil Procedure has subsidiary application. The Act therefore does not compel any specific conclusions with regard to the interpretation of criminal procedure law. The fact that the legislator enacted express provisions on retroactive corrections to the record in other codes of procedure, which had previously been determined by case-law, does not require the conclusion that, contrary to established case law (cf. RGSt 19, 367 <370>; BGHSt 2, 125), retroactive corrections to the record are barred in criminal proceedings. The preparatory legislative materials do not give any indication that the legislator in 1974 even considered the correction of the record in criminal proceedings. This is quite understandable just considering the stand-alone nature of criminal proceedings, and even more so given the fact that the Act was immediately preceded by the First Act to Reform of Criminal Procedure Law of 9 December 1974 (BGBl. I p. 3393).

43

b) The new case-law does not disregard the decision of the legislator underlying § 274 of the Code of Criminal Procedure insofar as it assumes that, in the case of a retroactive correction to the record, the exclusive probative value under § 274 is transferred to the corrected record (see aa) below) subject to a review in the appeal on points of law as to the relevance of corrections which eliminate procedural complaints (see bb) below).

44

aa) The general transfer of probative value to the corrected record does not conflict with the wording or spirit and purpose of § 274 of the Code of Criminal Procedure. The wording leaves it open as to which version of the record – the original or the corrected version – is assigned absolute probative value in the case of a retroactive correction to the record. The first sentence of § 274 of the Code of Criminal Procedure simply states that observance of the formalities stipulated for the trial hearing can only be proved by means of ‘the record’.

45

The original legislative intent also does not preclude a transfer of probative value to the corrected version of the record. The legislative materials for the Code of Criminal Procedure provide no clear indication which version of the record is to be given absolute probative value under § 274 in the case of a retroactive correction to the record. Nor do they compel the assumption that, beyond cases of forgery referred to in the second sentence of § 274 of the Code of Criminal Procedure, the legislator intended to exclude any dispute as to the veracity of the trial record – and therefore also any correction that could give rise to a dispute as to whether the original record or corrected record had probative value under § 274 – from appellate proceedings on points of law.

46

In the Official Commentary to § 314 of the Draft Code of Criminal Procedure, which eventually became law in an editorially revised version as § 274, it is stated that the provision is justified ‘by the assessment that violations of the formalities that may occur in the trial hearing unbeknownst to the participants in the proceedings usually cannot be reliably determined, even retrospectively, and the admission of evidence in addition to the record and in contradiction to its content allows the accused to question the validity of the proceedings against them for a prolonged period of time through empty pretexts’ ([...]). There is nothing relating to the case of formalities that were observed but mistakenly not included in the record. The provision was not intended for the protection of the accused and certainly not intended to provide comprehensive protection against interference with potential procedural complaints created through the original version of the record. On the contrary, the case that the legislator had in mind was one in which the probative value provided by law was actually to the detriment of the accused, namely, the case of a procedural error that actually occurred, but was not noticed by the persons responsible for the record and therefore not included in the record. The legislator deemed it acceptable that the probative value of the record as provided by law would deprive the accused of the possibility of invoking such an error, given that it would be virtually impossible to successfully provide counterevidence in such a constellation, and in view of the fact that, precisely because of the existing difficulties of proof, a strengthened probative value of the record was supported by considerations of avoiding the abuse of procedural complaints by the accused by citing matters not in the record. [...]

47

None of this compels the conclusion that the legislator intended to classify the recollection of the trial hearing by the persons responsible for the record as unreliable in all conceivable constellations and that therefore § 274 of the Code of Criminal Procedure was also intended to exclude in principle any correction of the record that is detrimental to the accused. In particular, the key aspect of avoiding abuses on the part of the accused does not imply a legislative concept that would favour an abusive exercise of procedural rights – including deliberately false complaints regarding the record – by strictly precluding any correction of the record to the detriment of the accused.

48

It is evident from the Commentary that the legislator was also concerned with removing the burden of evidentiary hearings from appeals on points of law, which are not actual intended for investigation of the facts. In regard to the question of whether certain formalities were observed or violated at trial, only the record is admissible evidence. Nothing else is admissible ([...]). However, it is not clear that this should also exclude the possibility of corrections to the record and thus also the possibility of providing evidence by means of a corrected record. [...] The goal of avoiding unforeseeable evidentiary requirements [...] does not require finding that the legislator’s decision for a strengthened probative value of the trial record also constitutes a prohibition on corrections to the record and the transfer of probative value to the corrected record.

49

bb) The rule set out in point number 3 of the operative part of the Order of the Grand Panel for Criminal Matters of 23 April 2007, according to which the relevance of corrections which eliminate procedural complaints is subject to review by the appellate court and in cases of doubt the record shall apply in its original form, conforms with the constitutional limits of judicial law-making.

50

(1) § 274 of the Code of Criminal Procedure provides that observance of the formalities stipulated for the trial hearing can be proved only by means of the record. Pursuant to § 274 of the Code of Criminal Procedure, the trial record thus has absolute probative value for the essential formalities of trial. The observance of these formalities therefore cannot be the direct subject of evidentiary hearings on appeal. The possibility of an appellate court directly taking evidence on the essential formalities of the trial is not opened up by the new case-law. Rather, the appellate courts hearing appeals on points of law are merely authorised and obliged to review the ‘relevance of the correction to the record’. It is only in this context that the appellate courts – in addition to reviewing the formal requirements for a correction of the record that eliminates a procedural complaint – must also incidentally review the observance of the essential formalities of the trial hearing, i.e. their review remains limited to the formality that was the subject of the correction to the record.

51

This judicial review of corrections to the record that eliminate a procedural complaint is significantly different from an evidentiary hearing directly related to essential formalities of the trial, which is what § 274 of the Code of Criminal Procedure seeks to avoid. The goal of § 274 of the Code of Criminal Procedure to relieve the appellate courts hearing appeals on points of law from the burden of having to conduct expansive evidentiary hearings is not undermined by the review of the relevance of corrections to the record provided for in the new case-law. A retroactive correction to the record is to be undertaken by the two persons responsible for the record and requires both officials to concur in the certain conviction of the incorrectness of the record. As a rule, such joint certainty can only arise in those cases of severe and obvious mistakes in the record, especially with regard to appeals on points of law, given the fact that a considerable amount of time has passed since the trial hearing and when the appeal is substantiated. For this reason alone, a review by the appellate court that indirectly relates to the proceedings at trial are likely to remain an exception. A correction to the record can also be undisputed – a fact that makes it seem particularly unlikely that the legislator intended § 274 of the Code of Criminal Procedure to preclude a correction to the record with a transfer of the probative value to the corrected record. Even when the correction is disputed, the appellate court’s review generally will not lead to an expansive evidentiary hearing. This is because the appellate court does not depend on such procedure; rather, it is precluded from using expansive means to determine the truth of the actual course of events at trial. It must limit its efforts to clarify the matter to an appropriate scope that corresponds to its means of acquiring knowledge and, in cases of doubt, base its review on the original version of the record.

52

Following a correction, two contradictory versions of the record exist: the original and the corrected version. This situation is comparable to a case in which the record lacks authoritativeness due to gaps or contradictory statements or because one of the persons responsible for the record unilaterally revokes their statement. In these cases, the case-law considers it permissible for the appellate court to clarify the course of events in the trial court on the basis of informal evidence, despite the provisions in § 274 of the Code of Criminal Procedure ([...]). Like the aforementioned case constellation, cases of retroactive corrections to the record are atypical cases that the courts must deal with in accordance with statutory values as both fundamental legal questions and as individual cases.

53

In light of the foregoing, the admission of retroactive corrections to the record with the transfer of probative value to the corrected record and the possibility of review by the appellate court do not contradict the clear legislative concept apparent from the wording of § 274 of the Code of Criminal Procedure or the historical materials.

54

(2) The fact that the Grand Panel for Criminal Matters has departed from decades of recognised case-law in the present context does not constitute an independent ground for a constitutional objection. The case-law’s change to more current ideas in marginal areas remains, insofar as it is to be assessed here, within the framework of the development of the law that the legislator recognisably approves of in principle. A relaxation of the strict formalism characteristic of legal theory in the 19^th century, which was altogether influenced by pandecticism, in favour of differentiated solutions that are less likely to result in unreasonable outcomes in the individual case is, since the introduction of the Basic Law, observable in many areas of the law both in legislation and in case-law. This is also the case in criminal appeals (cf., for example, with regard to the broadening of the appellate court’s powers of review with regard to the established points of fact, the weighing of evidence and sentencing BVerfGE 188, 212 <229 f.>; Chamber Decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 1, 145 <150 f.>; [...]). It is consistent with this development to interpret § 274 of the Code of Criminal Procedure, which dates back to the 19th century and is rooted in a formal evidentiary proceeding, in a way that does not maximise its formal preclusive effect, as the Grand Panel for Criminal Matters has done by developing a principle of appellate court review of corrections to the record that nullify procedural complaints as protection for the rights of the accused.

55

c) The Federal Court of Justice did not exceed the boundaries of judicial law-making by abandoning the prohibition against corrections that nullify procedural complaints.

56

aa) There is no express statutory provision concerning the prohibition against corrections that nullify procedural complaints. Rather, the courts derived the prohibition against corrections that nullify procedural complaints – with consideration of general legal principles – from the overall context of the provisions of the Code of Criminal Procedure relating to appeals on points of law (cf. RGSt 43, 1). Nor is the prohibition against corrections that nullify procedural complaints guaranteed by § 274 of the Code of Criminal Procedure. As set forth above, neither the development of an appellate review of a correction to the record nor the position taken by the case-law that, in the case of a retroactive correction to the record, the absolute probative value under § 274 of the Code of Criminal Procedure transfers in principle to the corrected record exceed the framework set by the Constitution for judicial law-making.

57

bb) One of the recognised functions of the courts is to review the legal principles established by case-law within the framework of statutory law and, when necessary, to further develop them. In individual cases, this can also result in changes to a previously-accepted understanding of a provision and different decisions being made. The fact that a legal principle established through a judicial decision has been followed for a long period of time may have some bearing on the decision of whether a deviation from that principle is justified, but it does not give the previous legal principle greater weight or even a constitutionally significant guarantee of existence. Apart from the protection of legitimate expectations (see B. III. below), the constitutional standards against which changes in case-law are to be measured do not differ from the standards that apply when a court develops a legal principle for the first time.

58

Accordingly, the new case-law on corrections to the record that nullify procedural complaints does not raise any constitutional objections. Abandoning the prohibition against corrections that nullify procedural complaints is – just like the original development of such prohibition – rooted in an overall assessment of the law governing appeals on points of law and does not exceed the boundaries of that legal system. In addition, it provides for legal certainty and clarity in this area of the law. According to the Grand Panel for Criminal Matters, it is intended to limit the prospects of success of deliberately false procedural complaints and also counter the tendency to expand the case-law on obvious defects in the record (cf. BGHSt 51, 298 <311, 313 f.>).

59

The constitutionally required protection of an appellant’s rights (cf.
BVerfGE 118, 212 <230 ff.> on the interpretation of § 354(1a) first sentence of the Code of Criminal Procedure in conformity with the Constitution) is sufficiently guaranteed by the new case-law developed by the Grand Panel for Criminal Matters. Protection against unauthorised corrections to the record, which was previously provided to the appellant through the prohibition against corrections that nullify procedural complaints, is replaced by a correction procedure that is subject to review by the appellate court. This substitute protection exceeds the boundaries of judicial law-making no more than the previous solution.

60

The fact that the change in case-law under review here affects the legal position of the complainant to his detriment does not change this. The principle of the separation of powers (Art. 20(2) second sentence of the Basic Law) and the principle that the judiciary is bound by law and to justice (Art. 20(3) of the Basic Law) require respect for the decisions of the legislator – within the limits of the Constitution – regardless of their content and therefore also regardless of the way in which they affect the rights and interests of the individual. For this reason, the limits to judicial interpretation of ordinary law that are drawn by Art. 20(2) second sentence and (3) of the Basic Law generally cannot be made narrower or broader depending on whether the respective interpretation works in favour of or to the detriment of the individuals affected. The fact that the leeway for interpretation permitted by the Constitution may be broader or narrower depending on whether the matter involves the enforcement of constitutional requirements – which may also affect the legal position of the individual – by means of an interpretation in conformity with the Basic Law (cf. BVerfGE 34, 269 <292>; 65, 182 <194 f.>; on the requirement and limits of interpretation in conformity with the Constitution, see also BVerfGE 86, 288 <320>; 99, 341 <358>; 118, 212 <243>), is a different matter and not relevant here. The previous interpretation of § 274 of the Code of Criminal Procedure was no more constitutionally required in its result than the interpretation under review here.

61

There is no indication in the wording or legislative history of the provision for an assumption that there is a fixed point in time when a correction to the record with the transfer of the probative value to the corrected record is to be ruled out, such as after the appeal on points of law has been lodged, i.e. only precluding the undermining of an already-lodged appeal, let alone any clear statement that other interpretations could be categorised as disregarding the will of the legislator, which is incompatible with the principle of the separation of powers.

62

cc) It is likewise not objectionable under constitutional law to view the prohibition against corrections that nullify procedural complaints as not constituting customary law. Customary law comes into existence through longstanding actual practice that is continuous, uniform and universal and is recognised by the relevant actors as a binding legal provision (cf. BVerfGE 22, 114 <121>; 28, 21 <28 f.>). The question of whether, and if so under what circumstances, established case-law on procedural issues can amount to customary law can remain open. In any case, the mere consistent application of case-law for a considerable amount of time is not sufficient. Rather, a formation of a legal view among the persons affected by the rule, i.e. not just lawyers, is required. Such legal view includes not only the expectation that the courts will proceed according to this maxim, but also that they will do so because it is a binding provision of law. ([...]).

63

On this basis, the assumption that the prohibition against corrections to the record that nullify procedural complaints has become established as customary law is far-fetched. The prohibition against corrections to the record that nullify procedural complaints was a rather technical rule of criminal procedure that, outside of the practice of appeals on points of law, was not well-known even among those in the legal profession. Among those criminal defendants affected by the provision, the prohibition against corrections to the record that nullify procedural complaints appears to be – with few exceptions – completely unknown. Moreover, it is likely that even those involved in proceedings in appellate courts were not convinced that the case-law strictly required the prohibition because it was a binding provision of customary law. In particular, there are no indications in the case-law of the Supreme Court of the German Reich or the Federal Court of Justice that the prohibition against corrections to the record that nullify procedural complaints had become established customary law.

64

dd) Finally, in the Act to Reduce the Workload of the Regional Courts and Simplify the Record of Legal Proceedings of 20 December 1974 (BGBl. I p. 3651), the legislator did not adopt the case-law on the prohibition against corrections to the record that nullify procedural complaints and therefore did not rule out the development of case-law to the contrary. As previously explained (see B. I. 2. a above), the purpose and content of the Act argues against such a conclusion. In addition, the legislative materials do not indicate that the legislator intended such a wide-ranging result.

II.

65

The challenged order rejecting the appeal on points of law does not violate the complainant’s right to effective legal protection or a fair hearing under Art. 2(1) in conjunction with Art. 20(3) of the Basic Law.

66

1. The function of a criminal trial is to enforce the state’s power to punish crime in a due and proper proceeding in order to protect the legal interests of individuals and the general public and ensure that the fundamental rights of those threatened with punishment are effectively protected. A criminal trial must safeguard the principle derived from the dignity of the individual acting autonomously that no punishment may be imposed without guilt (cf. BVerfGE 80, 244 <255>; 95, 96 <140>) and must provide appropriate procedural safeguards. The central concern of a criminal trial is ascertaining the true facts of the case, without which the substantive principle of culpability cannot be realised. Insofar as they are not otherwise covered by constitutional law, procedural arrangements that stand in the way of ascertaining the truth, and thus a fair judgment, can result in the right of the accused to a fair trial being affected (cf. BVerfGE 57, 250 <275>; 118, 212 <231>).

67

2. a) The general guarantee of legal protection derived from the principle of the rule of law does not just ensure that legal recourse to the courts is available at all. Rather, like Art. 19(4) first sentence of the Basic Law, the scope of which is limited to the executive (cf. BVerfGE 107, 395 <403 ff.>, 112, 185 <207>), it also guarantees the effectiveness of legal protection (cf. BVerfGE 94, 166 <226>; 112, 185 <207>). The general guarantee of legal protection does not guarantee an appeal in all cases (cf. BVerfGE 107, 395 <402>; 112, 185 <207>). However, when the possibility of an appeal is created through the respective codes of procedure, then the general guarantee of legal protection mandates effective legal protection in all types of appellate proceedings under the codes (cf. BVerfGE 104, 220 <232> with further references).

68

b) The guarantee of effective legal protection is also directed at the judge applying the code of procedure. The court must not render a right to appeal permitted by the code of procedure ineffective and thus make it ‘useless’ for the appellant (cf. BVerfGE 104, 220 <232>; 112, 185 <208>). The requirements of the rule of law thus prohibit courts from interpreting and applying procedural provisions in such a way that makes access to an appeal provided for by the code of procedure dependent upon requirements that are either impossible to fulfil or unreasonable or that limits access in a way that can no longer be justified by objective reasons (cf. BVerfGE 78, 88 <99>; 112, 185 <208>).

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3. a) The right of the accused to a fair trial is rooted – like the general guarantee of legal protection – in the principle of the rule of law in conjunction with the freedoms of the Basic Law, particularly in the right to freedom of the person (Art. 2(2) second sentence of the Basic Law), which is threatened by criminal proceedings, and in Art. 1(1) of the Basic Law, which prohibits to degrade persons to mere objects of a state procedure (cf. BVerfGE 57, 250 <274 f.>), and which obliges the state to proceed in a correct and fair manner (cf. BVerfGE 38, 105 <111>). Restrictions that are not covered by the special guarantees of fundamental procedural rights under the Basic Law are to be measured against the right to a fair trial (cf. BVerfGE 57, 250 <274>; 109, 13 <34>).

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b) As an indispensable element of the rule of law in criminal proceedings, the right to a fair trial guarantees the accused the ability to exercise procedural rights and possibilities with the necessary expertise and to adequately defend against attacks by state authorities or other participants involved in the proceedings (cf. BVerfGE 38, 105 <111>). However, this does not mean that the procedural differences in the scope of action available to the public prosecution office and the defence based on the roles allocated to each side must be balanced out in every respect for the sake of ‘equality of arms’ (cf. BVerfGE 110, 226 <253> with further references).

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c) It is primarily for the legislator to determine which specific procedural powers and assistance individuals charged with a criminal offence should be granted under the principle of fair trial and what form these powers should take. It is then up to the courts to make this determination in the individual cases, within the boundaries of the law, as part of their duty to interpret and apply the law. The right to a fair trial is violated only if an overall appraisal of procedural law – including the way in which it is interpreted and applied by the courts – reveals that conclusions that are compelling under the rule of law were not reached or that procedural elements indispensable under the rule of law were relinquished (cf. BVerfGE 57, 250 <276>; 64, 135 <145 f.>).

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d) This appraisal must also take into account the requirements of an effective criminal justice system (cf. BVerfGE 47, 239 <250>; 80, 367 <375>). The principle of the rule of law, of which the idea of justice is an essential component (cf. BVerfGE 7, 89 <92>; 74, 129 <152>; established case-law) does not just require that the law of criminal procedure be specified and applied in a fair manner. It also permits and requires consideration of the interests of an effective criminal justice system, without which justice cannot be enforced (cf. BVerfGE 33, 367 <383>; 46, 214 <222>). The state under the rule of law can only be realised if sufficient safeguards are in place to ensure that criminals are prosecuted and sentenced in accordance with the applicable law and that they receive just punishment (cf. BVerfGE 33, 367 <383>; 46, 214 <222>; established case-law). Procedural provisions that serve the requirements of an effective criminal justice system do not automatically violate the constitutional right to a fair criminal trial if the procedural position of the accused or the individual charged with a criminal offence is negatively affected, in comparison with their prior position, in favour of a more effective criminal justice system.

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e) The requirement of speedy justice is closely linked with the effective criminal justice system that is required by the rule of law. This constitutional principle must also be considered when specifying provisions that give effect to the right to a fair trial (cf. BVerfGE 41, 246 <250>; 63, 45 <68 f.>). An effective criminal justice system requires not only that the state’s power to punish crime be enforced, but that it be carried out quickly enough that the community can still perceive the punishment as a reaction to the unlawful conduct that has occurred. Unnecessary delays in the proceedings not only call the purposes of criminal punishment into question, they also impair the constitutionally protected public interest in a determination of the truth in criminal proceedings that is as complete as possible, as evidence can become distorted over the course of time (cf. BVerfGE 57, 250 <280>; Federal Constitutional Court, Order of the First Chamber of the Second Senate of 21 June 2006 - 2 BvR 750/06 inter alia -, juris, para. 13).

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4. In light of these principles, the challenged order denying the appeal on points of law does not raise any constitutional concerns. The new case-law on corrections to the record that nullify procedural complaints is compatible with the rights of the complainant to effective legal protection and a fair trial under Art. 2(1) in conjunction with Art. 20(3) of the Basic Law.

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a) Permitting corrections to the record that nullify procedural complaints enables courts to address the phenomenon of false complaints regarding the record and thereby takes into account the constitutional concern for efficient and effective criminal prosecution. A reversal of the judgment due to a mere error in the taking of the record – and thus the need for a new trial hearing with a new, possibly time-consuming taking of evidence – is avoided. Apart from the fact that it can be considerably more difficult to enforce the state’s power to punish crime in the context of a new trial hearing, which is regularly accompanied by a deterioration in the evidence, a retrial is also associated with disadvantages from the point of view of victim protection (see BVerfGE 38, 105 <114>; Federal Constitutional Court, Order of the First Chamber of the Second Senate of 2 May 2007 - 2 BvR 411/07 -, juris, para. 11). In a retrial, witnesses must often be heard again. If the witnesses are also the victims of the crime at issue, it can cause them considerable stress, even re-traumatisation, particularly in the case of serious violent and sexual offences.

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b) The new case-law ensures the accused appellant effective protection from unauthorised corrections to the record through a correction procedure that is subject to review by the appellate court. A court that intends to correct the record in a way that will nullify the basis for a procedural complaint that has already been raised must address the objections of the appellant, deal with them and expect that its decision to correct the record will be subject to extensive review by the appellate court. In addition, falsification of the record is criminalised by § 348 of the Criminal Code (Strafgesetzbuch – StGB). In this way, the abuse of corrections to the record to the detriment of the accused can be ruled out with sufficient certainty.

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c) By permitting corrections to the record that nullify procedural complaints, the effectiveness of the appeal on points of law in criminal proceedings is not impaired in an unreasonable manner that can no longer be justified by objective reasons. It is true that the possibility of a retroactive correction of the record devalues the appeal from the point of view of the accused, insofar as they must expect that the evidentiary basis for their procedural complaint will be eliminated. However, this is only a limited and – in relation to the overall possibilities to appeal – minor impairment of the appellant’s legal position, for which the appellant has no constitutional entitlement. As set forth above, the appellant is sufficiently protected from unauthorised detrimental corrections to the record. If, on the other hand, the record has been rightly corrected, the appellant has no constitutionally protected interest in having the judgment set aside on the basis of an incorrect record.

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d) The abandonment of the prohibition against corrections to the record that nullify procedural complaints does not violate the indispensable requirements for fair criminal proceedings imposed by the rule of law from the perspective of procedural equality of arms. The complainant points out the fact that he himself – unlike the court – cannot implement a correction of the record and sees this as a violation of the principle of equality of arms. However, the concept of equality of arms relates primarily to the relationship between the defence and the public prosecutor's office and, even with regard to this relationship, does not require all procedural differences between the two roles to be balanced out (cf. BVerfGE 63, 45 <67>; 63, 380 <392 f.>). The concept of equality of arms cannot be applied to the relationship between the court and the defence. Pursuant to the Code of Criminal Procedure, only the registry clerk and the presiding judge are responsible for the orderly establishment of the record (§ 271(1) Code of Criminal Procedure). The establishment of the record is – like the issuance of judgment – solely the task of the court.

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e) There is also no violation of the constitutional requirement of fairness insofar as the complainant alleges that the new case-law on corrections to the record that nullify procedural complaints fundamentally changes the structure of the procedural complaint to the detriment of the accused. The complainant contends that the formal requirements placed on the admissibility of a procedural complaint remain high, but now an appellant must also expect that an initially admissible procedural complaint will be retroactively deprived of its basis by a correction to the record.

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First of all, the underlying assumption that § 274 of the Code of Criminal Procedure is solely or primarily a protective provision in favour of the accused and the appellant and is intended to compensate for disadvantages arising from the strict formalities and time limits under appellate law, does not follow from a constitutionally required interpretation of the provision. On the contrary, a reading of the Commentary leads to the conclusion that § 274 of the Code of Criminal Procedure primarily serves to protect the proceedings from abuse by the accused. The accused should not have the opportunity ‘to question the legal validity of the proceedings against them for a prolonged period of time through empty pretexts’ ([...]).

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In addition, the purported connection between the formal requirements of the procedural complaint and the prohibition against corrections to the record that nullify procedural complaints claimed by the complainant does not exist. The prohibition against corrections that nullify procedural complaints established by the previous case-law was neither aimed at nor suitable for compensating for procedural disadvantages arising from the strict formalities and time limits that apply to appeals on points of law. Rather, the advantage that could result from an error in the record in conjunction with the prohibition against corrections to the record that nullify procedural complaints arose as a purely ‘coincidental effect’ and regardless of whether the respective appellant had actually failed to fulfil the strict formalities under the law on appeals on points of law with regard to other procedural complaints.

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Moreover, an overall review of the criminal appeal on points of law reveals that its locus has by no means unilaterally shifted to the detriment of the accused over the past decades. It is true that there is a certain tendency in the case-law of the appellate courts to limit the influence of procedural complaints. In exchange, however, the case-law has considerably expanded the scope of review – in particular by extending the so-called representation review – generally in favour of the accused. In sum, the abandonment of the prohibition against corrections to the record that nullify procedural complaints constitutes part of the overall development of the law on appeals on points of law, which has placed the aspects of truth and justice in the individual case in the foreground of the appellate review (cf. BVerfGE 118, 212 <229 f.>; BVerfGK 1, 145 <150 f.>; […]).

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f) Finally, the appellant’s argument that a retroactive correction to the record that nullifies a procedural complaint would create the appearance of bias on the part of the court is not persuasive. Here too, the correction procedure that must be followed in conjunction with the possibility of review by the appellate court ensures sufficient transparency to rule out such an appearance.

III.

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The challenged order denying the appeal on points of law does not violate the complainant’s right under Art. 2(1) in conjunction with Art. 20(3) of the Basic Law through a frustration of a legitimate expectation on the part of the complainant by the first criminal panel at the Federal Court of Justice. Abandoning the earlier case-law on the prohibition against corrections to the record that nullify procedural complaints does not violate the principle of the protection of legitimate expectations (Vertrauensschutz) under Art. 20(3) of the Basic Law.

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1. The case-law of the highest courts does not constitute law equivalent to legislation, nor is the binding effect of court decisions equivalent to that of statutory law. Art. 20(3) of the Basic Law does not per se bar courts from renouncing their previous stance on the interpretation of a law. When the ordinary courts endorse a specific statutory interpretation, the influence and effects of this decision beyond the individual case result only from the persuasiveness of their reasoning and the authority and powers vested in the courts. Courts are not required to establish a material change of circumstances or of general views in order to deviate from prior case-law without violating Art. 20(3) of the Basic Law. Even in consideration of the principle of protection of legitimate expectations, it is, in principle, not objectionable for the highest courts to change their established case-law, provided that their decision is based on sufficient reasons and does not exceed the limits of foreseeable developments (cf. BVerfGE 84, 212 <227 f.>; BVerfGK 4, 12 <15>; and Federal Constitutional Court, Order of the First Chamber of the Second Senate of 6 May 2008 - 2 BvR 1926/07 -, juris). To the extent that legitimate expectations have developed as a result of established case-law, this can be taken into account in individual cases, if necessary, by provisions on temporal applicability or considerations of equity.

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2. a) Accordingly, the abandonment of the prohibition against corrections to the record that nullify procedural complaints does not raise any constitutional objections from the standpoint of protecting legitimate expectations. The change in the previous case-law on the prohibition against corrections to the record that nullify procedural complaints does not exceed the limits of foreseeable developments. For some time, there have been observable efforts by appellate courts to modify the rule of absolute probative value of the record under § 274 of the Code of Criminal Procedure (which has been generally viewed as unreasonable) in marginal areas. The long-standing reservations with regard to the prohibition against corrections to the record that nullify procedural complaints have also grown louder in recent years. In a judgment of 12 January 2005 - 2 StR 138/04 - ([...]), which was rendered prior to the decision of the trial court in the underlying case in these proceedings, the second criminal panel of the Federal Court of Justice announced that it wanted to do away with the prohibition against corrections to the record that nullify procedural complaints, but refrained from submitting a request to the other criminal divisions due to a lack of relevance to the decision. Even before this decision of the second criminal panel, the prohibition against corrections to the record that nullify procedural complaints was called into question by a number of voices in the scholarly literature ([...]).

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b) There are no recognisable arguments in the present case that could require and justify a protection of legitimate expectations that goes beyond the general principles. The complainant could not rely on the continued existence of the possibility that a mistake in the record might support a procedural complaint – as was the case with the previous case-law on the prohibition against corrections to the record that nullify procedural complaints. Raising or sustaining a false complaint regarding the record constitutes defence conduct that runs counter to the purposes of criminal proceedings and, from the point of view of the rule of law, is not worthy of protection such that there would be a claim to maintain case-law that is not clearly defined by statutory law and grants procedural advantages to such a complaint.

IV.

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