THE FACTS
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(1) See Yearbook, Volume VII, pages 280 and 288.
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Whereas the facts presented by the Applicant may be summarised as
follows:

The Applicant is a German citizen, born in 1927. In his first
Application (No. 2122/64) to the Commission, the Applicant complained
of his long detention pending trial. That Application was admitted by
the Commission (1) and is now pending before the Court.

The present Application concerns the Applicant's conviction and
sentence by the Regional Court (Landgericht) of Berlin. The Applicant
was tried by the Court between 9th November, 1964, and 7th April, 1965.

 The Applicant states that, on 9th November, 1964, his counsel
challenged the Presiding Judge, Landgerichtsdirektor P, and an
Assistant Judge, Landgerichtsrat M, on apprehension of bias under
Article 24 of the Code of Criminal Procedure (Strafprozessordnung). The
memorial setting out the reasons for the challenge contained the
following passage:

"1. The accused Wemhoff has lodged an Application with the European
Commission of Human Rights, Strasbourg, on the grounds of the length
of his detention pending trial, which represents a gross violation of
the elementary principles of our legal order. The Commission has judged
that the Application is not manifestly ill-founded and is thus
admissible. There is therefore the possibility that it will find that
the long detention to which the accused has been subjected represents
a violation of the principles laid down in the Convention for the
Protection of Human Rights. Such a grave ruling would cause a
considerable sensation among the German public. The accused's
Application has already attracted considerable public attention, at the
time of the trial," (In this connection, reference was made to press
comments.)

"Should the Commission, the European Court of Human Rights or the
Committee of Ministers decide in the accused's favour, those among the
public who are interested would concentrate especial attention on the
persons primarily responsible for prolonging the accused's detention.
It is probable that the press, in particular, will ask how it is
possible in Germany for a court comprising several judges to take
repeated decisions which ignore the provisions of the Convention for
the Protection of Human Rights. It will be seen from the decisions of
the Criminal Chamber (Strafkammer) on detention dated 19th May, 9th
June, 7th July, 17th July and 16th October, 1964, that the judges
concerned considered the extraordinarily long period of detention to
be justified by the fact that the accused faced an unusually severe
prison sentence. From experience of the world it may be supposed that
the judges who gave the decisions will try, more or less unconsciously,
to justify them to themselves. If this were so they would have to
overcome considerable resistance within themselves before the idea of
acquitting the accused or giving him a short sentence could make any
headway. It cannot be ruled out that, with the judges in such a
psychological situation, any doubts as to the accused's guilt would to
some extent in spite of themselves, be overcome by the desire to impose
a prison sentence on him that would at least justify the length of
detention. At all events, even on a reasonable assessment of the facts
it is natural that the accused should, for these reasons, have doubts
about the freedom from bias of the judges challenged. The judges must
reckon with a favourable decision by the Committee of Ministers on the
Strasbourg Application and must comport themselves accordingly. In the
decision on detention dated 10th June, 1963, the judges of the Criminal
Chamber showed that they viewed a charge of violation of the Convention
as the gravest imaginable reproach against the judiciary, for that
decision contains the following passage:

'It is clear that the expression in the defendant's letter, "Justice
here in Berlin does what it likes, not what it is required to do by
law", is an insult to the Berlin judicial authorities, for there is no
assertion more calculated to endanger the reputation of the judiciary
than this one of the defendant's that it acts contrary to law; seeing
that the public, especially abroad, is, since the last war, suspicious
of German justice, and thereby of Berlin justice, this letter is
calculated to influence it.'"

It was also stated that the judges realised that a favourable decision
on the Strasbourg Application would reflect primarily on those judges
who had given the decisions on detention. "Thus their psychological
position is that of accused persons who see no salvation except in the
passing of a severe prison sentence on Wemhoff. The challenge is
directed particularly against the Presiding Judge, since he is bound
by law and by his own character to exercise a decisive influence on the
legal opinions of the 8th Great Criminal Chamber. Landgerichtsrat M is
challenged because of his share in the decisions on detention, with
which in any case he has identified himself."

The challenge, for which the above reasons were given, was rejected on
the following grounds:

"In the reasons given for his challenge the accused assumes that in the
decisions on detention Landgerichtsdirektor P and Landgerichtsrat M
knowingly, or at least on irrelevant grounds, infringed the law to his
detriment. However, his submission offers no factual evidence of this.
In fact these decisions were taken, or confirmed and reinforced, by
various judges and by the 1st Criminal Chamber (Strafsenat) of the
Court of Appeal (Kammergericht), the question whether the length of
detention violated the Convention on Human Rights having been examined
and answered in the negative. Moreover, the European Commission of
Human Rights has not yet reached a decision. There is no foundation
whatever for the accused's view that the decision is bound to be in his
favour."
The decision rejecting the challenge continues:

"In the circumstances the mere fact that all the decisions on this
point have been unfavourable to the accused Wemhoff cannot warrant his
assumption and his consequent apprehension of bias. Otherwise, in view
of the number of judges concerned in the decisions at various levels,
it would have to be supposed that the decisions were all deliberately
taken to the accused's detriment in conscious violation of the law. It
goes without saying that this view is far removed from any reasonable
view."

At the hearing on 8th March, 1965, the Applicant filed a further
challenge against the tree judges of the 8th Great Criminal Chamber.
In support of it he repeated his previous submissions on the subject
and in addition gave a series of facts which, in his opinion, justified
his conclusions concerning the judges' bias. He drew particular
attention to Article 6, paragraph (1), of the Convention on Human
Rights. This challenge too was rejected and the trial ended on 7th
April, 1965, with the pronouncing of judgment. The Applicant was
sentenced to six and a half years' penal servitude for a particularly
serious case of aiding and abetting breach of trust (Beihilfe zur
Untreue in einem besonders schweren Falle). He appealed against this
judgment to the Federal Court (Bundesgerichtshof) and, in the memorial
of 26th July, 1965, stating the grounds of the appeal
(Revisionsbegru╠łndung) he invoked Article 338, No. (3), and Article 24
of the Code of Criminal Procedure. It was also alleged that Article 6,
paragraph (1), of the Convention had been violated, in particular in
view of the fact that the Applicant's challenge of 8th March, 1965, had
been rejected on the ground that it had been heard on the facts. The
grounds of appeal contained the following passage:

Even if the hearing of the accused Gericke would not be considered by
the Federal Court as a hearing on the facts within the meaning of
Article 25 of the Code of Criminal Procedure, the rejection of the
challenge was legally incorrect. Under Article 6, paragraph (1), of the
Convention on Human Rights the accused Wemhoff is entitled to a fair
hearing by an independent and impartial tribunal.

This principle, which is fundamental to the procedural law of any
constitutional State, was implemented only imperfectly in the German
Code of Criminal Procedure until the Act Amending the Code of Criminal
Procedure and the Judicature Act came into force on 1st April, 1965.
The Convention for the Protection of Human Rights makes it clear that
the Court's independence is not to be confused with impartiality. In
this respect Schwarz-Kleinknecht's commentary on Article 6 of the
Convention (note 7) is misleading, since Article 97 of the Basic Law
(Grundgesetz) and Article 1 of the Judicature Act
(Gerichtsverfassungsgesetz) only provide for the judges' personal and
material independence and have nothing to say about the principle of
impartiality. Until the Convention came into force this problem was
dealt with definitely in Articles 23 et seq. of the Code of Criminal
Procedure. Article 25 of the Code placed an important formal limitation
on the principle of impartiality, challenge of a biased Court only
being admissible up to a certain stage in the proceedings. If
partiality occurred or became apparent after the end of the hearing on
the facts the accused was not entitled to challenge the Court. This
limitation ceased to exist when the Convention came into force, if not
before, since Article 6 of the Convention guarantees the accused's
right to an impartial tribunal without any reservation, up to the very
close of proceedings. If we accept that a right that is guaranteed also
provides the means necessary to its realisation, and that the
elimination of a biased judge from any share in the decision is the
sole imaginable way of ensuring the principle of impartiality, it
necessarily follows that the accused was entitled to challenge biased
judges at any stage in the proceedings, since under the Convention,
particularly Articles 5 et seq., it must be presumed that absolute
constitutional principles shall apply. The fact that the temporal
limitation imposed by the old version of Article 25 of the Code of
Criminal Procedure had ceased to meet constitutional (rechtsstaatliche)
requirements is clear from the amended version, in which the limitation
is abolished. The new version is therefore simply a rule for the
execution of Article 6 of the Convention; but since the Convention was
directly applicable law even before the amending Act came into force,
it has no bearing on the admissibility of the challenge that, under the
transitional provisions, the new version of Article 25 of the Code was
not to apply to pending proceedings. Moreover, the transitional
provisions should not be taken as meaning that Article 6, paragraph
(1), of the Convention was to become partially inapplicable but rather
that the effect of the new version of Article 25 of the Code was to be
delayed.

"This being so, after the Convention came into force the sole remaining
effect of the old version of Article 25 was to reduce the burden of
proof on the accused, since in order to get rid of a judge it was not
necessary to furnish full evidence of his partiality. It was sufficient
for a challenge that the accused did in fact appear to have some
personal apprehension that the judge would not be impartial. For under
the general rules of evidence it must be assumed that there are grounds
for challenge under Article 6, paragraph (1), of the Convention only
if the judge's bias is established, that is to say, on the basis of the
facts, it is no longer reasonably possible to doubt his partiality."

The Applicant's appeal was rejected by the Federal Court on 17th
December, 1965, following an oral hearing. In its judgment, the Court
stated inter alia:

"The grounds for rejection of the challenge(s) of 7th (9th) November,
1964, ... clearly stand up to legal re-examination on all points.

The Appellant's challenge of 4th March, 1965 was also rightly rejected
as inadmissible, for the following reasons:

1. The interrogation of all the accused on the facts (as provided in
Article 25 [old version] of the Code of Criminal Procedure) was
concluded on 18th January, 1965. This is clear both from the minutes
of the trial (Sitzungsniederschrift) and from the Appellant's
application of 4th March, 1965 and the pleadings on appeal. According
to these, Gericke, another of those convicted (and only he) was 'again
questioned closely on his motives and on the influence to which he had
been subject' (see copy of the grounds of appeal pages 67 below and 68
below). The representations (Vorhalte) made and questions put to
Gericke did not constitute a further investigation of the facts. For
both in the context of Article 257 of the Code of Criminal Procedure
and, more generally, in the interests of proper conduct of the trial
it is often necessary in bigger cases to hear an accused person again
'on his motives' in the light of the evidence so far obtained. It
usually happens that the trial judge confronts the accused with the
testimony heard or the contents of documents read. This does not
signify a new interrogation on the facts within the meaning of Article
25 (old version) of the Code of Criminal Procedure. Thus it is clear
that the hearing of the accused, which had been interrupted several
times (for the taking of evidence) ended before 4th March, 1965.

The reference in the appeal to Decision BGHSt 18, 46 et seq. is
therefore not to the point in this context. That decision concerns a
further, not a repeated, interrogation on the facts.

2. The contention in the appeal that Article 25 (old version) of the
Code of Criminal Procedure conflicts with the spirit of the European
Convention for the Protection of Human Rights and was therefore
invalidated by Article 6 of the Convention before the Act Amending the
Code of Criminal Procedure and the Judicature Act was promulgated is
also of no avail.

This contention is not correct. Apart from this fact, none of the (29)
circumstances mentioned in the challenge are such as to prove the
Court's 'partiality'; a mere apprehension of partiality is not
sufficient for the purpose."

The Applicant submits that the judgment given by the Regional Court of
Berlin on 7th April, 1965, and that of the Federal Court of 17th
December, 1965, violated Article 6, paragraph (1), of the Convention
as he was sentenced by a Court that, for the reasons explained above,
was not able to judge his case impartially.

THE LAW

Whereas the Applicant alleges a violation of Article 6, paragraph (1)
(Art. 6-1), of the Convention which states that, in the determination
of any criminal charge against him, everyone is entitled to a hearing
by an "impartial tribunal"; and whereas, in support of this complaint,
the Applicant presents extracts from his pleadings before the German
courts relating to Articles 24 and 25 of the Code of Criminal
Procedure;

Whereas, however, it results from the Applicant's own submissions that
these provisions are essentially different from Article 6, paragraph
(1) (Art. 6-1), of the Convention; and whereas the Applicant himself
points out that the evidence required for the challenge of a judge
under Article 24 of the German Code of Criminal Procedure is not
sufficient to show a violation of the relevant provision of Article 6,
paragraph (1) (Art. 6-1), of the Convention;

Whereas, further, in support of his present complaint under Article 6,
paragraph (1) (Art. 6-1), the Applicant does not maintain, and adduces
no evidence to suggest, that the judges of the Regional Court of Berlin
failed to act impartially in his case; whereas, in particular, he does
not complain that they adopted towards him a hostile or biased attitude
at the trial, or that they otherwise conducted his trial unfairly; or
that his conviction was arrived at by any reasoning not based on the
evidence before the Court; or, finally, that his sentence was of a
length from which it could be reasonably inferred that the length of
detention pending trial had influenced its determination;

Whereas, instead, the Applicant invites the Commission to accept a
grave imputation against the judges of the Regional Court, and of the
Federal Court, on a mere speculative inference;

Whereas it follows that his complaint under Article 6, paragraph (1)
(Art. 6-1), is manifestly ill-founded within the meaning of Article 27,
paragraph (2) (Art. 27-2), of the Convention.

Now therefore the Commission declares this Application inadmissible.