The court in which a judge who had previously convicted the accomplice of the same crime and had judged in detail the participation of the accused is not impartial!
JUDGMENT
Meng v. Germany 16.02.2021 (app. no. 1128/17)
SUMMARY
Impartial court. Criteria. Fair trial. Participation of a judge in a panel that convicted the applicant, when he himself had convicted the accomplice of the same crime in a previous trial and had judged her own participation.
The applicant was convicted of the joint murder of her husband. A judge who participated in the composition of the court that convicted her had previously participated in a composition that had convicted the accomplice in the same case concerning the same facts.
The convict appealed to the ECtHR alleging violation of the fair trial due to lack of impartiality of a judge for the above mentioned reason. In the previous judgment, that judge had already ruled that the applicant was involved in the commission of the act.
The Court reiterated its firm case-law that in a democratic society the courts must inspire confidence in the public, but noted that the judge’s involvement in another trial for the same offense does not in itself raise the certainty of a lack of impartiality.
However, the ECtHR found that the decision against the co-perpetrator contained a detailed assessment of the exact role played by the applicant in the violent death of her husband as well as her main motives. Thus, Strasbourg held that the court in which the same judge had participated had already made a legal assessment of the act against the applicant.
The European Court of Human Rights found that the applicant ‘s suspicion of a lack of impartiality on the part of the judge was well founded and found a violation of Article 6 § 1 of the ECHR.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicant, Salina Meng, is a German national who was born in 1964 and lives in Frankfurt am
Main (Germany).
The case concerned the applicant’s conviction for the murder of her husband for profit with a certain
G.S. During her trial, the presiding judge had previously been judge rapporteur in separate
proceedings against G.S. alone.
Relying on Article 6 § 1 (right to a fair trial) of the Convention, the applicant complained that the
bench that had convicted her of murder had not been impartial.
THE DECISION OF THE COURT…
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
In determining whether, in the present case, the Regional Court, with judge M. sitting on the bench, had been impartial as required by Article 6 § 1, the Court, having regard to the material before it, considers that there is nothing to indicate that judge M. acted with personal prejudice in the proceedings against the applicant. Consequently, the judge’s personal impartiality must be presumed (subjective test).
The Court therefore needs to determine whether the participation of M. as judge rapporteur in the previous proceedings against G.S., in which the Regional Court had adopted a judgment containing numerous references to the applicant, led to an objectively justified fear that judge M. was not impartial (objective test).
The Court observes at the outset that the judge concerned by the applicant’s fears for bias was a professional judge, who must be considered more trained, accustomed and prepared than a lay judge to disengage himself from the experience and findings in the previous trial against G.S.
Furthermore, the Court notes that in the proceedings against the applicant the Regional Court, presided by judge M., itself took witness and expert evidence (including new witnesses, namely G.S. and his sister) at a trial lasting for 23 days. In its judgment convicting the applicant, the court made fresh findings of fact and a legal analysis on this basis, without any references to and reliance on the findings in the judgment against G.S. The facts established differed in some details from those established in the judgment against G.S.
The Court considers, however, that while these are important elements in the examination of the question of whether the Regional Court met the requirement of impartiality under Article 6 § 1 in the applicant’s case, they do not exempt the Court from examining whether the judgment of the Regional Court against G.S. contained findings that actually prejudged the question of the applicant’s guilt.
In determining whether the judgment against G.S. contained such findings prejudging the applicant’s guilt, the Court observes that the references to the applicant in that judgment, which speaks of “the accused and Salina Meng”, show that the applicant was not formally on trial in these proceedings; her procedural status as a third party (witness) in these proceedings was therefore clear.
However, in the judgment against G.S. the applicant was not mentioned only in passing. That judgment contained extensive findings of fact also concerning the applicant. It stated, in particular, that “[t]hey” – that is, G.S. and the applicant – “…decided to kill [M.M.]” and that the applicant, following a “plan made jointly with the accused to kill [M.M.] in order to get hold of his assets”, prepared the act as well as the acquisition of [M.M.]’s assets. It further assessed evidence taken at the trial also in respect of the applicant and found, in particular, that the fact that neither G.S. nor the applicant had asked about the cause of M.M.’s death could easily be explained in the circumstances “as they had committed the offence themselves or been involved in it”. Moreover, when legally classifying the killing of M.M. as murder, the Regional Court stated that “the reckless manner in which the accused and Salina Meng acted and by which they attempted, by the murder of [M.M.], to take over his business … had to be particularly taken into account”.
The Court observes in this context that the Regional Court, in its judgment against G.S., presented its findings regarding the applicant as established facts and established legal qualification thereof, and not as mere suspicions. This was confirmed by the domestic courts themselves which had found this to have been necessary in order to establish comprehensively the relevant facts in respect of G.S. and to provide a full picture regarding the planning of, and motive for the offence The Federal Court of Justice, in particular, had confirmed that the Regional Court’s indications in its judgment against G.S. – that it was firmly convinced that the applicant was a co-perpetrator in the offence – had been necessary to establish the basis for G.S.’s conviction.
The Court cannot but note that the judgment against G.S. contained a detailed assessment of the precise role played by the applicant in the violent death of M.M. going beyond a factual account of the circumstances of the crime. It can be regarded as having established that the criteria necessary for the act to constitute a criminal offence were also met in respect of the applicant. The judgment described in detail not only the premeditated killing of her husband and the manner in which the joint plan with G.S. was carried out, but also the base motives of the applicant herself for acting in that manner, namely that she wished to acquire M.M.’s assets in a reckless manner. The Regional Court can thereby be seen to have made a legal assessment of the act also in respect of the applicant in that it found in substance that not only G.S., but also the applicant had acted out of greed and that the latter had thus participated in, and was equally guilty of, the murder of M.M. The Court cannot but note in that context that these findings and the assessment in respect of the applicant were made despite the fact that G.S. had been charged as a single perpetrator who was found to have acted alone at the crime scene and that the legal assessment of the applicant’s acts appears to go beyond what was necessary to legally qualify G.S.’s offence.
The applicant’s doubts that the Regional Court, including judge M., may already have reached a preconceived view on the merits of the applicant’s case in the judgment against G.S., prior to the applicant’s own trial, were also confirmed by the prosecution’s assessment after that judgment. The prosecution stated that “the judges of the Darmstadt Regional Court had clearly expressed their conviction – shared by the prosecution – that the applicant had incited G.S. to kill her husband”.
Having regard to all the circumstances of the case, the Court concludes that the applicant had a legitimate fear that judge M., in the light of the wording of the judgment against G.S., had already reached a preconceived view on her guilt. Therefore, the applicant’s doubts as to the impartiality of the Regional Court in the present case were objectively justified.
The Court further recalls that a higher or the highest court might, in some circumstances, make reparation for defects that took place in the first‑instance proceedings (see De Cubber v. Belgium, 26 October 1984, § 33, Series A no. 86, and Kyprianou, cited above, § 134). However, the Federal Court of Justice, which had the power to quash the Regional Court’s judgment on the ground that the Regional Court had not been impartial, upheld the applicant’s conviction and sentence. Consequently, the higher court did not remedy the defect in question.
There has accordingly been a violation of Article 6 § 1 of the Convention.
Just satisfaction: The applicant did not submit any claims for just satisfaction.
