Complaint about obligation to testify as a witness against former accomplices was inadmissible


Wanner v.Germany 22.11.2018 (no. 26892/12)

see here


The case concerned the applicant’s conviction for giving false testimony as a witness in criminal
proceedings against his former accomplices.

The Court observed that, since Mr Wanner’s conviction for assault had become final, there was no
legal possibility of him being prosecuted again for his participation in that offence. It found that he
could no longer rely on the presumption of innocence, as the protection afforded by that
presumption ceases once an accused has properly been proved guilty of the charge in question.


Article 6


The applicant, Dieter Wanner, is a German national who was born in 1978 and lives in Schutterwald.
On 23 March 2007 the District Court convicted Mr Wanner, inter alia, of aggravated assault,
committed jointly with others. It established that on the night of 29 April 2006 he and three
unknown accomplices had entered the victim’s flat and, while hitting and kicking him, demanded
that he repay 3,500 euros. Mr Wanner appealed but withdrew his appeal before the Regional Court.
At the request of the public prosecutor Mr Wanner was heard in September 2007 as a witness by the
investigating judge in proceedings against his unknown accomplices. The judge informed him that, as
a witness, he had to tell the truth. Mr Wanner maintained that he had not been at the crime scene
and consequently could not say anything about those who had taken part in the assault.

Subsequently, he was charged with giving false testimony while not under oath. In the first instance
trial before the District Court he was acquitted of those charges. On appeal, he was, however,
convicted of giving false testimony while not under oath and sentenced to six months’ imprisonment
on probation. The Regional Court considered that there had been no danger of a new prosecution
for the assault because Mr Wanner’s conviction had become final.

Consequently, he did not have to be informed of his right not to provide answers by which he might incriminate himself. Mr Wanner’s further appeal on points of law and a constitutional complaint were rejected.


Article 6

The Court reiterated that the right not to incriminate oneself is closely linked to the presumption of
innocence contained in Article 6 § 2. However, its protection ceases once an accused has properly
been proved guilty of the offence.

Regarding the first part of Mr Wanner’s complaint, in which he argued that his truthful answers as a
witness could have led to his further criminal prosecution for offences of which he had not yet been
convicted, the Court held that Article 6 (criminal limb) was not applicable. The facts of the case did
not support his allegation that he risked prosecution regarding further offences. His examination as
a witness in the proceedings against his unknown accomplices in the assault for which he had
already been convicted had served the sole purpose of identifying those accomplices. Therefore, Mr
Wanner could not be considered to have been “charged” with a criminal offence within the meaning
of Article 6 § 1.

As concerns his further allegation that the authorities had intended to compel him to make a
retroactive confession following the termination of the criminal proceedings against him, the Court
noted that there was no legal possibility of him being prosecuted again for his participation in the
assault since the judgment of the District Court had become final. He was, legally, not “substantially
affected” by his obligation as a witness to answer truthfully the questions by the investigating judge.
The Court concluded therefore that he could not rely on his right not to incriminate himself since he
no longer ran any risk of further prosecution.

Rather, the effective administration of justice required a witness to comply with the civic duty of
giving truthful testimony in accordance with the relevant procedural law. Article 6 did not offer any
privileges to a former defendant whose conviction had become final as regards giving testimony
about the crime of which he was convicted. Consequently, the Court found that Article 6 was not
applicable in respect of Mr Wanner’s complaint that the authorities had intended to compel him to
make a retroactive confession.

Thus, the Court held that the complaint under Article 6 was incompatible ratione materiae with the
provisions of the Convention and therefore decided to declare that part of the application

Article 10

The Court did not rule out that a negative right to freedom of expression is protected under Article
10, but found that this question would only have to be determined if Mr Wanner complained about
the coercion to testify. In the present case, however, he complained that he was found guilty of
having made a false statement. Even assuming that Article 10 was applicable in these circumstances,
the Court took the view that the complaint would, in any event, be inadmissible because the
interference met the requirements of Article 10 § 2.

Accordingly, the complaint was, in any event, manifestly ill-founded and must therefore be declared
inadmissible( editing). 


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