Abstract of the order of 27 March 2025

Third Chamber of the Second Senate
Order of 27 March 2025
2 BvR 829/24

Headnotes (non-official):

1. The provisions on necessary legal representation under the Code of Criminal Procedure flow from the right to a fair trial as part of the principle of the rule of law.
2. Throughout criminal proceedings, the court must determine whether it is necessary for the defendant to have legal representation. This also extends to appeal proceedings.
3. As a rule, in appeal proceedings, the main hearing cannot be conducted in the defendant’s absence if the court’s obligation to clarify the relevant facts of the case requires that the defendant be heard again, or that the court gain an impression of the defendant based on personal observation.

Summary:

I.

With his constitutional complaint, the applicant challenges a decision rendered by the Regional Court of Frankfurt am Main on 13 September 2023, in which he received an aggregate sentence of 2 years in prison, as well as the order of the Higher Regional Court of Frankfurt am Main of 15 May 2024 rejecting his appeal on points of law.

The applicant had previously been sentenced to fines in several criminal proceedings, as well as to suspended imprisonment of 10 months. Some of these sentences were later merged into an aggregated sentence. In the case underlying the constitutional complaint, the applicant appealed the judgment of the court of first instance, as did the prosecution.

On 11 September 2023, the presiding judge in the appeal proceedings before the Regional Court was informed by the applicant’s counsel that the applicant was in Türkiye, unable to fly due to a leg injury and therefore could not attend the main hearing scheduled for 13 September 2023. The applicant’s counsel also stated that he himself would not attend due to other appointments. The presiding judge informed the applicant’s counsel of the possibility of conducting the appeal hearing in their absence.

On 13 September 2023, the main hearing took place in the absence of both the applicant and his counsel. The applicant received an aggregate sentence, which was not suspended. On 14 September 2023, the applicant’s counsel submitted to the court a doctor’s note in which the applicant was held to be unfit for questioning on 13 and 14 September 2023. Enquiries conducted by the presiding judge revealed that the applicant had returned to Frankfurt on 11 September 2023 and personally attended an official appointment on 13 September 2023.

By order of 15 May 2024, the Higher Regional Court of Frankfurt am Main rejected the applicant’s appeal on points of law as manifestly unfounded, as the review had not revealed any legal error to the detriment of the applicant.

On 19 July 2024, the Third Chamber of the Second Senate of the Federal Constitutional Court issued an interim order suspending the enforcement of the aggregate prison sentence. The interim order was extended on 14 January 2025.

II.

The Chamber held the admissible constitutional complaint to be manifestly well-founded in accordance with § 93c.1 first sentence of the Federal Constitutional Court Act.

The applicant’s right to an effective legal defence, in itself an expression of the right to a fair trial in accordance with Art. 2.1 in conjunction with Art. 20.3 of the Basic Law, was violated because the appeal was decided in absence of the applicant’s legal counsel, although legal representation of the defendant was necessary in accordance with § 140.2 of the Code of Criminal Procedure (hereafter, the ‘Code’).

Criminal procedure must ensure that the defendants are placed in a position to effectively exercise their procedural rights. This includes the right to be represented by counsel of their choice. The defendant’s right to a fair trial may be violated if the court misjudges the protection afforded by a procedural provision in a way that leads to an overall infringement of inviolable standards of the rule of law.

In their established case-law, higher regional courts generally assume that legal representation of the defendant is necessary under § 140.2 of the Code, if a prison sentence of one year or more is expected, although this must be determined on a case-by-case basis.

§ 140.2 of the Code also applies in appeal proceedings. Therefore, in cases where legal representation is necessary but the defendant’s legal counsel was not present and a public defender was not provided, a defendant’s appeal cannot be dismissed on the grounds that the defendant was absent without an excuse. This also applies to an appeal by the prosecution. Thus, the appointment of a public defender would have been required in the present case.

Furthermore, the applicant’s right to a fair trial in accordance with Art. 2.1 in conjunction with Art. 20.3 of the Basic Law was violated because the Regional Court wrongly assumed that the preconditions of § 329.2 second alternative of the first sentence of the Code were met.

The central aim and task of criminal proceedings is to establish the true facts of the case in order to determine the individual culpability of the defendant. Criminal punishment without the establishment of individual culpability violates the principle of guilt, which is based on the guarantee of human dignity and personal responsibility and the principle of the rule of law.

At the same time, the rule of law requires that the effectiveness of the criminal justice system be upheld. For this reason, there are certain circumstances under which a trial can be conducted in the absence of the defendant. § 329.2 of the Code stipulates such an exception for appeal proceedings, subject to the condition that the defendant’s presence is not necessary. Whether the defendant’s presence is necessary mainly depends on whether the court’s obligation to clarify the facts requires the defendant to be heard again or for the court to gain an impression based on personal observation.

The Federal Constitutional Court held that the presence of the defendant would have been necessary in the present case because, compared to the court of first instance, the Regional Court imposed a higher sentence and did not suspend the sentence. The Regional Court did so based on considerations that would have required the court to seek a personal impression of the applicant.

The applicant was also deprived of his right to effective legal protection ‒ a right that is an expression of the rule of law in conjunction with Art. 2.1 of the Basic Law ‒, because the substantiation requirements the Higher Regional Court had applied to the applicant’s appeal on procedural grounds exceeded the standards formulated in § 344.2 second sentence of the Code.

The court may not impose unreasonable standards for the admissibility of an appeal. The Federal Constitutional Court held that the Higher Regional Court had overstretched the admissibility requirements, making the appeal more difficult for the applicant than can be justified on substantive grounds.

The order of 15 May 2024 and the judgment of 13 September 2023 were reversed and remanded to the Regional Court for a new hearing and decision.