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| The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database. | |
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| Please cite the abstract as follows: | |
| Abstract of the Federal Constitutional Court’s Order of 16 November 2020 - 2 BvQ 87/20 [CODICES] | |
Second Chamber of the Second Senate Order of 16 November 2020 2 BvQ 87/20 | |
1. Where the state of health of an accused is so poor that they could lose their life or suffer serious damage to their health if criminal proceedings against them were continued, a tension arises between the state’s duty to ensure the proper functioning of the criminal justice system and the fundamental right to life and physical integrity of the accused pursuant to the first sentence of Article 2.2 of the Basic Law. The conflict must be resolved in accordance with the principle of proportionality by weighing the conflicting interests, provided this does not require the sacrifice of life.
2. Where there is an apparent, specific danger that the accused will lose their life or suffer serious damage to their health if the trial hearing were to be held, the continuation of the criminal proceedings violates their fundamental right under the first sentence of Article 2.2 of the Basic Law. In this case, the threat of a violation is equivalent to an actual violation of fundamental rights. However, only a sufficiently certain prognosis of a serious health damage can justify the discontinuation of the proceedings under constitutional law.
3. Insofar as a court takes measures to counteract dangers, it has considerable latitude in respect of fulfilling its duty of protection arising from the first sentence of Article 2.2 of the Basic Law.
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Summary: I. The applicant is 77 years old. The public prosecution office accuses him of participation in fraud offences in the context of so-called cum-ex trading. In light of the COVID-19 pandemic and his state of health, the applicant expressed concerns in respect of the continuation of criminal proceedings and presented numerous medical certificates. After hearing the applicant, the criminal court decided to separate the proceedings against him from the proceedings against three other persons who are accused of offences in the same context. This decision was based on the conclusion that, in view of the measures to prevent an infection with the coronavirus, it would require disproportionate efforts to conduct a trial hearing with four accused. The judges stated that they intended to bring forward the trial hearing against the applicant. In the same decision, the criminal court opened main proceedings against him. Several days later, the applicant received a court order informing him of the trial dates fixed between 17 November 2020 and the beginning of January 2021. The order included instructions as to the obligations in relation to the COVID-19 pandemic (wearing face covering, distancing, using disinfectant).
The applicant challenged this order. Thereupon, the criminal court issued an order requesting a medical examination of the applicant by an expert in forensic medicine. According to the medical expert, the applicant was fit to face trial. Thus, the criminal court rejected the applicant’s applications to terminate the proceedings, to defer the proceedings until the end of January 2021, and to annul the trial dates fixed until 7 January 2021
The applicant challenged this rejection claiming a violation of his fundamental right to life and physical integrity pursuant to the first sentence of Article 2.2 of the Basic Law.
II.
Based on the considerations below, the Federal Constitutional Court rejected the application for a preliminary injunction pursuant to § 32 of the Federal Constitutional Court Act.
In a dispute, the Federal Constitutional Court may provisionally decide a matter by way of a preliminary injunction if this is urgently required to avert severe disadvantage, to prevent imminent violence or for another important reason in the interest of the common good. The Court will not issue a preliminary injunction if a (subsequent) constitutional complaint would be inadmissible from the outset or manifestly unfounded.
In the case at hand, a constitutional complaint would be inadmissible because the applicant has not exhausted the available legal remedies before the criminal courts, nor has he substantiated the reasons why the requirement to exhaust all legal remedies would be unreasonable (unzumutbar).
Furthermore, the applicant has failed to substantiate that the criminal court applied the law of criminal procedure in a manner violating constitutional law. The applicant did not make a violation of his fundamental right under Article 2.2 of the Basic Law sufficiently plausible, nor is such a violation apparent. On the one hand, the mere possibility of death or serious damage to the applicant’s health does not oblige the court to refrain from conducting the main hearing. The possibility that an accused person may not be able to cope with the stress of a main hearing can never be completely ruled out. Within certain limits, such risks are unavoidable and must be accepted in the interest of the effective administration of criminal justice. The Constitution does not mandate perfect protection against any health risk that might arise in the context of criminal proceedings. On the other hand, courts must not be too strict and must not overstretch the requirements with respect to the probability of death or serious health damage.
On the basis of the available information, the challenged decision of the criminal court is not objectionable under constitutional law. The criminal court held that the applicant’s state of health at the relevant time did not justify the assumption that he was unfit for trial. This assessment was based on the opinion of a medical expert, is comprehensible and not objectionable under constitutional law.
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