FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30443/03 
by Harry LIEBREICH 
against Germany

The European Court of Human Rights (Fifth Section), sitting on  
8 January 2008 as a Chamber composed of:

Peer Lorenzen, President, 
 Karel Jungwiert, 
 Volodymyr Butkevych, 
 Margarita Tsatsa-Nikolovska, 
 Javier Borrego Borrego, 
 Renate Jaeger, 
 Mark Villiger, judges, 
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 18 September 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Harry Liebreich, is a German national who was born in 1967 and lives in Berlin. He was represented before the Court, as already in the proceedings before the domestic courts, by Mr T. Mengede, a lawyer practising in Berlin. The respondent Government were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  Proceedings before the Tiergarten District Court

On 20 September 2001 the Tiergarten District Court opened the trial against the applicant on charges of insurance fraud. In the course of the second trial hearing on 27 September 2001, the applicant presented a medical certificate dated 25 September 2001 issued by H., a licensed doctor (Diplom Mediziner) for psychiatry. According to that certificate, the applicant was suffering from a depression and was therefore presently unfit to plead (verhandlungsunfähig). After the applicant had declared that he had been able to follow the hearing until then, the latter was ended on his request. On the third day of the hearing, the applicant declared to be fit to plead.

On 30 October 2001 the Tiergarten District Court, having held seven hearings, convicted the applicant of 26 counts of insurance fraud and sentenced him to three years’ imprisonment. It found that the applicant, who ran a garage, had simulated accidents with the help of others in order to obtain the payment of insurance benefits. In fixing the applicant’s sentence, the court took into account as an aggravating factor that the applicant had acted on a commercial basis. It considered in mitigation that it could not be excluded that the applicant, who had confessed to the offences, had needed a large amount of money in order to satisfy claims for protection money (Schutzgeld) extorted from him by unknown third persons.

2.  Proceedings before the Berlin Regional Court

The applicant appealed against the District Court’s judgment.  
He contested in particular that he had committed the frauds on a commercial basis as he had used the money obtained thereby to pay the blackmailers.  
He further argued that the sentence was too severe as he had acted with diminished criminal responsibility. Following the constant threats uttered by the blackmailers he suffered from serious anxiety and depression which necessitated continuous neurological and psychiatric treatment.

The hearing before the Berlin Regional Court took place on  
25 June 2002.

In the applicant’s submission, his counsel informed the court orally prior to the formal opening of the hearing in the presence of the Public Prosecutor’s Office and his co-defendants’ defence counsels that the applicant was unfit to plead. His counsel submitted two medical certificates dated 13 May 2002 issued by doctor H., the neurologist and psychiatrist in charge of the applicant’s treatment for the past years. According to these certificates, the applicant, who was under constant psychiatric treatment, was unfit for work from 25 September 2001 presumably until  
5 August 2002 and also unfit to plead. His lawyer further presented a medical certificate dated 13 November 2001 issued by doctor H. in which the doctor stated that the applicant suffered from a serious anxiety and depression syndrome, might suffer from a personality disorder and was being treated with anti-depressants. The doctor recommended carrying out a psychiatric examination in the course of the appeal proceedings in order to assess the applicant’s criminal responsibility. The applicant’s lawyer further informed the Regional Court that the applicant was presently under the influence of strong anti-depressants which he was obliged to take in order to treat his illness. The court inspected the certificates and handed them back to his counsel as it did not wish to take them to the files at that moment.

The hearing was then opened and the applicant and his co-defendants made submissions on their personal situation. Excerpts of the District Court’s judgment were read out. Having been advised of his right to remain silent, the applicant declared that he was ready to make submissions on the charges against him. In the applicant’s submission, his counsel reminded the court at that moment that the question of the applicant’s fitness to plead had to be addressed.

The Regional Court interrupted the hearing for one hour in order to award the defendants and their counsels the opportunity to consider limiting the appeals to the fixing of the sentence. When the hearing was resumed, the applicant, having consulted his counsel, declared that he restricted his appeal to the fixing of his sentence.

The applicant then handed over to the court the two medical certificates dated 13 May 2002 (see above) issued by doctor H. according to which he was unfit to plead. According to the minutes of the hearing as rectified by the court, the applicant, having consulted his counsel, declared on the court’s enquiry that he considered himself to be fit to plead and was ready to participate in the hearing.

Thereupon, the presiding judge interrupted the hearing for approximately fifteen minutes. According to the minutes of the hearing, the applicant, following this break, declared again on the court’s enquiry that he felt fit to make and to receive procedural statements. According to the minutes of the hearing, the presiding judge subsequently informed the parties that she had phoned doctor H. during the break. The latter had confirmed that the applicant had been prescribed antidepressants. In view of the (average) dosage of the medication, the applicant was fit to make and to receive procedural statements also when he had taken the antidepressants. In the applicant’s submission, the presiding judge informed him of the telephone conversation with his doctor prior to questioning him for the first time on his fitness to plead. The parties were given the opportunity to comment on this issue. The Regional Court considered the applicant as being fit to stand trial and proceeded with the hearing.

The applicant then made submissions on the charges. He stated, in particular, that he had become depressive due to his offences, as a result of which he had lost his means of subsistence.

At the conclusion of the hearing, the Regional Court sentenced the applicant to two years and nine months’ imprisonment. It found that in the applicant’s submission, which had not been disproved, he had been blackmailed since 1997 by unknown third persons who had damaged cars parked in his garage and had threatened him and his family. As the police had not agreed to afford him protection immediately, he had committed the insurance frauds on a commercial basis in order to be able to pay the protection money extorted by these persons. In fixing the sentence, the court further took into account that the applicant had shown in the hearing that he truly regretted his offences presumably committed because of the said blackmail. It also considered in mitigation that there was a link between his feeble health caused by a slight depression and the criminal proceedings against him. The court found the high damage caused (some  
250,000 Deutschmarks), the number of frauds committed by the applicant and the fact that he had instigated several persons to participate in them to be aggravating circumstances.

Right after the hearing the applicant went to see doctor H. Having examined him, the latter certified that the applicant was in a confused, very depressed and desperate state of mind and that his submission that he had not been able to follow the court hearing was credible. Doctor H. stated that the information he had given on the phone to the Berlin Regional Court that morning, at a moment when he had been treating other patients, needed to be clarified. From a retrospective point of view it was very likely that the applicant had been unfit to plead for health reasons throughout the hearing before the Berlin Regional Court on that day.

3.  Proceedings before the Berlin Court of Appeal

On 2 July 2002 the applicant lodged an appeal on points of law.  
He argued that the conduct of the hearing before the Regional Court despite his unfitness to plead or without having his capacity to plead properly examined by a doctor entailed a serious violation of his right to be present, to be heard and effectively to defend himself as protected by section 230 § 1 of the Code of Criminal Procedure (see ‘Relevant domestic law and practice’ below).

In his submissions in reply dated 13 December 2002 the Berlin Public Prosecutor General stated that, having regard to the course of the hearing before the Regional Court as laid down in the minutes of the hearing, that court had no reason to doubt the applicant’s fitness to plead and was thus not obliged to consult a medical expert.

On 21 January 2003 (decision served on 27 January 2003) the Berlin Court of Appeal, without giving reasons, dismissed the applicant’s appeal on points of law as manifestly ill-founded.

4.  Proceedings before the Federal Constitutional Court

On 25 February 2003 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He submitted that his right to be heard as guaranteed by Article 103 § 1 of the Basic Law had been violated because the Regional Court had held its hearing in the criminal proceedings against him although it had been or should have been aware that he had been unfit to plead.

On 18 March 2003 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint.

B.  Relevant domestic law and practice

If an appeal (Berufung) is lodged against a District Court judgment, the defendant’s case will be reheard by the Regional Court on all questions of fact and law unless the appeal has been restricted by the appellant to certain points of complaint (see section 318 of the Code of Criminal Procedure).

According to the settled case-law of the Federal Court of Justice, the mere physical presence of the defendant is not sufficient for him to be considered to “attend” the hearing; he also has to be fit to plead (Federal Court of Justice, no. 5 StR 199/70, decision of 6 October 1970, Collection of the decisions of the criminal section of the Federal Court of Justice (BGHSt), Vol. 23, pp. 331 et seq., 334). A defendant is fit to plead if he is capable of protecting his interests reasonably in and outside the hearing, of conducting his defence in a proper and understandable manner and of making and receiving procedural statements. In particular, a defendant is not considered unfit to plead if, because of the advice and support of his counsel, he is sufficiently able to exercise his defence rights of his own will, either in person or represented by his counsel (see, inter alia, Federal Constitutional Court, no. 2 BvR 345/95, decision of 24 February 1995, NJW 1995, pp. 1951, 1952). If the court has doubts about the defendant’s capacity to plead, as a rule no hearing may be conducted in the criminal proceedings against him (Federal Court of Justice, no. 4 StR 681/83, decision of 29 November 1983, Neue Zeitschrift für Strafrecht (NStZ) 1984, p. 181; Federal Court of Justice, no. 5 StR 449/84, decision of 17 July 1984, NStZ 1984, p. 520). The trial court is called to take evidence in order to verify the applicant’s fitness to plead in accordance with its duty to investigate all facts relevant to its decision (compare section 244 § 2 of the Code of Criminal Procedure).

COMPLAINT

The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that his right to a fair trial and his right to defend himself in person had been violated in that the Regional Court had conducted the hearing in the criminal proceedings against him although it had known or should have known that he had been unfit to plead.

THE LAW

In the applicant’s submission, the Regional Court held the hearing in the appeal proceedings following his criminal conviction at first instance despite the fact that, as shown by medical evidence, he had been unfit to plead. He therefore had not had a fair trial and had been deprived of his right to defend himself in person contrary to Article 6 §§ 1 and 3 (c) of the Convention which, in so far as relevant, provide:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

...

3.  Everyone charged with a criminal offence has the following minimum rights: ...

(c)  to defend himself in person or through legal assistance of his own choosing ...”

A.  Alleged abuse of the right of application

The Government claimed that the application was inadmissible as the applicant had abused his right of application by having made false allegations to the Court. He had knowingly presented the course of the main hearing in a manner suggesting that he had been incapable of exercising his free will and had to not been able actively to participate in the hearing. However, he had in fact confirmed that he was fit to plead in a clear manner before the presiding judge had informed him of her telephone conversation with his doctor.

The applicant contested having made wrong submissions on the course of the main hearing. He claimed that the rectified version of the minutes of the hearing, which, under the German Code of Criminal Procedure, was not a verbatim record, was incorrect in some points.

The Court reiterates that an application may only be rejected as abusive under Article 35 § 3 of the Convention in such circumstances if it was knowingly based on untrue facts (see, inter alia, Akdivar and Others v. Turkey [GC], judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1206, §§ 53, 54; Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X; Řehák v. the Czech Republic, no. 67208/01,  
18 May 2004). It notes that, even though the parties disagree in some points as regards the sequence of events in the hearing before the Regional Court, the essence of the applicant’s allegation, namely that he unsuccessfully claimed to be unfit to plead before the Regional Court by reference to medical certificates, is uncontested. Moreover, there is nothing to indicate that the applicant deliberately made wrong factual allegations as to the course of the hearing before the Regional Court. He did not, therefore, abuse his right of application within the meaning of Article 35 § 3 of the Convention.

B.  Plea of non-exhaustion of domestic remedies

The Government further argued that the application was inadmissible as the applicant and his counsel had not done everything to redress the alleged violation of the applicant’s rights. The applicant had declared twice that he felt fit to plead. Neither the applicant nor his counsel had requested the Regional Court to consult an expert on the question of the applicant’s fitness to plead. In these circumstances, that court had not been in a position to prevent the violation now alleged before the Court.

The applicant took the view that it had been for the Regional Court to verify his fitness to plead on its own motion.

The Court considers that, by arguing that the applicant failed to request the consultation of a medical expert on his fitness to plead, the Government raised in substance a plea of non-exhaustion of domestic remedies. It recalls that, whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it normally requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 18, § 34; Elçi and Others v. Turkey, nos. 23145/93 and 25091/94, § 604, 13 November 2003).  
It observes that the applicant, as is uncontested between the parties, argued in the proceedings before the Regional Court that he was unfit to plead and submitted two medical certificates to support his view. In these circumstances, it was for the Regional Court to take evidence in order to establish whether the applicant was fit to plead (see ‘Relevant domestic law and practice’ above). This has indeed not been called into question by the courts of higher instance.

The Court therefore concludes that the applicant has exhausted domestic remedies as required by Article 35 § 1 of the Convention.

C.  Compliance with Article 6 of the Convention

1.  The parties’ submissions

In the Government’s view, there had, in any event, been no violation of Article 6. The Regional Court’s decision to consider the applicant fit to plead had not been arbitrary. It was true that no hearing should be held in criminal proceedings against a defendant if the court doubted his fitness to stand trial. However, in the present case, in view of the applicant’s conduct in the hearing, the Regional Court had not had reason to doubt his fitness to plead. The medical certificate dated 13 May 2002 he had submitted had been issued some six weeks before the hearing and had not given any reasons why the applicant, in the doctor’s view, was continuously unfit to plead. The applicant had declared twice in a clear manner, having consulted and in the presence of his counsel, that he was fit to plead. In addition to that, the presiding judge had consulted the applicant’s doctor about the effects of the antidepressants taken by the applicant. The latter had confirmed that in view of the dosage of the medication, the applicant was able to make and to receive procedural statements. By submitting the medical certificates, the applicant had tacitly lifted the doctor-patient-confidentiality in respect of the question of his fitness to plead. He had also neither contested the doctor’s assessment nor the use in evidence of his statement.

The Government further argued that the applicant had been offered and availed himself of the opportunity to participate in the hearing. He had made several procedural statements and submissions on the charges against him. It had therefore not been necessary to consult a medical expert on his fitness to plead. Neither the applicant nor his counsel protested against the continuation of the hearing or requested the court to consult a medical expert. The retrospective assessment of the applicant’s fitness to plead by his doctor, who had not been present during the hearing, could not cast doubts on his fitness to plead during the hearing. In so far as the applicant contested that the minutes of the hearing were correct, he had failed to apply for their rectification.

In the applicant’s submission, the procedure before the Regional Court had violated his rights to a fair trial and to defend himself effectively under Article 6 §§ 1 and 3 (c). He claimed that no hearing could be held in the proceedings against a defendant if there were doubts about the defendant’s fitness to plead. Irrespective of the exact course of the hearing before the Regional Court, it was clear that the court had been aware from the outset that there were such doubts about his fitness to plead. It had taken note of all medical certificates on this issue. The court had also not been able to remove the doubts as to his fitness to stand trial in the course of the hearing. It had known that he suffered from serious depressions and took strong antidepressants. As had been apparent to the court, he had been visibly drowsy and unable to concentrate throughout the hearing and had consented to essential procedural acts, in particular, the limitation of his appeal to an appeal against sentence, only upon repeated questioning and merely by nodding.

In particular, it had not been possible for the applicant’s psychiatrist to assess via telephone, without having seen and examined the applicant on that day, without having been informed of any facts necessary for the diagnosis and without even having spoken to him, whether or not the applicant was fit to plead at the time of the hearing in view of his neurological and psychiatric illnesses. Moreover, the doctor had not been dispensed from his duty to observe the doctor-patient confidentiality and his submissions could not, therefore, be used at the trial. This was supported by the fact that the applicant’s doctor had subsequently again confirmed the applicant’s unfitness to plead at the hearing. It had therefore been irrelevant that the applicant had declared himself to be fit to plead – which, contrary to the rectified minutes, he had done for the first time after the presiding judge had called his doctor – because a person who was unfit to plead was unable to consent validly to the conduct of the hearing. The court had therefore been obliged to call in a court-appointed medical expert on the applicant’s fitness to plead.

The applicant further contested having made extensive submissions on the charges against him. He had been unable to set out in a conclusive manner the background and motives for committing the offences, which had been decisive for the fixing of his sentence.

2.  The Court’s assessment

a.  Relevant principles

The Court recalls at the outset that a person charged with a criminal offence should, as a general principle based on the notion of a fair trial, be entitled to be present at the first-instance trial hearing. However, the personal attendance of the defendant does not necessarily take on the same significance for an appeal hearing. Indeed, even where an appellate court has full jurisdiction to review the case on questions of both of fact and law, Article 6 does not always entail a right to be present in person. Regard must be had in assessing this question to, inter alia, the special features of the proceedings involved and the manner in which the defence’s interests are presented and protected before the appellate court, particularly in the light of the issues to be decided by it and their importance for the appellant (compare, inter alia, Helmers v. Sweden, judgment of 29 October 1991, Series A no. 212-A, p. 15, §§ 31-32; Belziuk v. Poland, judgment of 25 March 1998, Reports 1998-II, p. 570, § 37; Pobornikoff v. Austria, no. 28501/95, § 24, 3 October 2000; Kucera v. Austria, no. 40072/98, § 25, 3 October 2002).

The right of an accused under Article 6 to effective participation in his or her criminal trial generally includes, inter alia, not only the right to be present, but also to hear and follow the proceedings. Such rights are implicit in the very notion of an adversarial procedure and can also be derived from the guarantees contained, in particular, in sub-paragraph (c) of paragraph 3 of Article 6 – “to defend himself in person” (see, among others, Barberà, Messegué and Jabardo v. Spain, judgment of 6 December 1988, Series A no. 146, pp. 33-34, § 78; Stanford v. the United Kingdom, judgment of 23 February 1994, Series A no. 282-A, pp. 10-11, § 26; S.C. v. the United Kingdom, no. 60958/00, § 28, ECHR 2004-IV). “Effective participation” in this context presupposes that the accused has a broad understanding of the nature of the trial process and of what is at stake for him or her, including the significance of any penalty which may be imposed. The defendant should be able, inter alia, to explain to his own lawyer his version of events, point out any statements with which he disagrees and make them aware of any facts which should be put forward in his defence (see, for example, Stanford, cited above, p. 11, § 30; V. v. the United Kingdom [GC], no. 24888/94, §§ 85, 89, 90, ECHR 1999-IX; S.C. v. the United Kingdom, cited above, § 29). The circumstances of a case may require the Contracting States to take positive measures in order to enable the applicant to participate effectively in the proceedings (compare Vaudelle v. France, no. 35683/97, §§ 48-49 and §§ 55-56, ECHR 2001-I; V. v. the United Kingdom, cited above, § 86).

b.  Application of those principles to the present case

The Court finds that the present case falls within the category of cases in which the applicant’s presence at the appeal hearing was necessary in order to conduct the proceedings in a fair manner and to enable him to defend himself effectively. The hearing concerned questions of both fact and law. In reasoning his appeal, the applicant contested having committed frauds on a commercial basis in view of his motives for the offences. He further argued that he had acted with diminished criminal responsibility because of the serious anxiety and depression he had been and was still suffering from. The issues to be decided on appeal therefore depended to a decisive extent on an evaluation of the applicant’s motives, personality and state of health. These matters could not properly be examined without gaining a personal impression of the applicant and without a direct assessment of evidence given by him in person (compare Belziuk, cited above, p. 571, § 38; Pobornikoff, cited above, § 31). Moreover, given that the applicant had been sentenced to three years’ imprisonment (a sentence which cannot be suspended on probation) at first instance, a different assessment of his guilt, which could result in a reduction of his sentence, was important for the outcome of the criminal proceedings against him.

The applicant’s presence thus being necessary in order to conduct a fair appeal hearing, the Court is called upon to examine whether, in the light of the evidence before it, the applicant was capable of participating effectively in the appeal hearing before the Regional Court to the extent required by Article 6 §§ 1 and 3 (c) of the Convention taken together.

The Court must determine whether the applicant was unable to follow the proceedings and to defend himself in person with regard to all the circumstances of the present case. It agrees with the assessment made by the domestic courts that the fact that the applicant presented a medical certificate stating that he was unfit to plead did not rule out his ability effectively to participate in the hearing. The certificate was issued some six weeks before the hearing and did not diagnose the applicant to suffer from an illness which rendered any effective participation in a trial hearing permanently impossible. Similarly, the subsequent retrospective view concerning the applicant’s fitness to stand trial expressed by his treating doctor, who had not been present at the hearing, is not decisive for determining this legal issue.

The Court further observes that it is uncontested between the parties that, having been questioned by the Regional Court whether he felt fit to stand trial, the applicant confirmed at least once in person, in the presence of and after having consulted his counsel, that he was fit to plead. The Court considers it indeed as an important factor in determining whether the applicant was capable of defending himself effectively in person that he was also represented by a lawyer whom he could freely consult during the trial and whom he could provide with the necessary information (compare Goddi v. Italy, judgment of 9 April 1984, Series A no. 76,  
pp. 12-13, §§ 30-31; Stanford, cited above, p. 11, § 30; V. v. the United Kingdom, cited above, § 90). In the present case, the Regional Court even facilitated the applicant further consultation with his lawyer as it interrupted the hearing twice for one hour and for fifteen minutes respectively, thereby allowing the applicant ample opportunity to discuss essential procedural issues with his counsel who could, if he had considered the applicant unfit to stand trial or to instruct him, have lodged further requests with the court to have the applicant’s fitness to plead examined.

The Court further notes that the Regional Court did not rely on the applicant’s statement on his fitness to plead alone, but obtained further information on this issue by consulting the doctor treating him via telephone. It agrees with the applicant that it had not been possible for his doctor to assess in this manner whether or not he was fit to plead at the time of the hearing. However, the Regional Court, as shown by the minutes of the hearing, had only obtained information about the effects of the antidepressants taken by the applicant on his fitness to plead. The applicant did not object that the court took this into account when deciding the question of his fitness to plead.

Moreover, the Court finds that there is nothing to indicate that the applicant, due to his depression and the effects of his medication, was unable to have a broad understanding of the trial process and unable to understand what was at stake for him. As shown by the minutes of the hearing and the reasons given in the Regional Court’s judgment, the applicant participated in the hearing in that he made submissions notably on the background and motives for committing the offences, which he truly regretted, factors which were important for the fixing of the applicant’s sentence and which the court considered in mitigation.

On the facts of the present case, the Court is therefore not convinced that there is any material before it to justify reaching the conclusion that, notwithstanding the applicant’s own submissions confirming his fitness to stand trial and the statement corroborating his submissions made by his treating doctor as to the effects of the medication on him and notwithstanding his actual participation in the hearing, the applicant’s state was such that he had not been fit to plead.

In such circumstances, the Regional Court was also not called upon to take further positive measures to enable the applicant to participate effectively in the hearing. In particular, its decision not to consult a medical expert on the applicant’s fitness to plead cannot be considered as arbitrary, even less so because neither the applicant nor his counsel had requested the court to do so.

Having regard to the foregoing, the Court discontinues the application of Article 29 § 3 of the Convention and dismisses the application as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

LIEBREICH v. GERMANY DECISION


LIEBREICH v. GERMANY DECISION