AS TO THE ADMISSIBILITY OF
by Ljubomir RAICEVIC
The European Court of Human Rights (Fifth Section), sitting on 29 September 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 22 July 2005,
Having deliberated, decides as follows:
The applicant, Mr Ljubomir Raicevic, is a Montenegrin national who was born in 1975 and lives in Berane, Montenegro.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 12 March 2001 the Trier District Court (Amtsgericht) issued a warrant for the arrest of the applicant, who was charged with several counts of serious theft in a gang and receiving stolen property. On 14 March 2001 the applicant was arrested and placed in pre-trial detention. On the following day, the criminal investigation judge (Ermittlungsrichter) at the Trier District Court appointed Z as official defence counsel (Pflichtverteidiger) for the applicant.
In the course of the investigation against the applicant, on 12 April 2001 the Trier District Court ordered the seizure of two letters the applicant had written to his relatives. The seizure was ordered on the ground that the letters contained information about possible payments from the applicant to Z. This was set out in the reasons of the decision. By letter of 23 April 2001 Z asked the District Court to inform him of the content of the seized letters. On 25 April 2001 the decision was submitted to Z. On 16 May 2001 the Trier Public Prosecutor’s Office opened preliminary investigations against Z on suspicion of having demanded from the applicant illegal additional fees, namely, Overcharging of Fees (Gebührenüberhebung) within the meaning of section 352 of the Criminal Code.
During his pre-trial detention the applicant was questioned several times. At first, he always denied having been involved in the offences he was charged with. In June 2001 the applicant announced that he was willing to make a “confidential confession” if he was given certain guarantees concerning his conviction, permission to stay in Germany and subsequent security measures. As the public prosecutor explained that there was no such thing as a “confidential confession” and that he was unable to give the said guarantees the applicant refused to make any statements. However, later on, through his counsel the applicant explicitly asked for another interview with the police. On 24 July 2001, he was questioned anew and made significant confessions concerning the offences he was charged with. He signed his statement and the annexed declaration that he had been made no promises by the authorities. During a later interview in August 2001 the applicant announced that he was also able to provide information about significant criminal offences by third persons, but made no further statements when he was refused confidentiality and certain security measures.
On 26 September 2001 the applicant was heard as a witness in the course of the criminal investigation against Z. He declared that Z had never asked for any money for the defence. He had only sent him 900 German marks (DEM) to pass it on to his (the applicant’s) family.
On 3 January 2002, the first day of trial, the applicant confessed to some of the offences he was charged with. On 8 January 2002, the applicant requested that Z be removed from the case. He stated that Z had requested an additional fee of DEM 5,000 for the defence and promised him a lenient sentence. He alleged that he had paid the requested sum but that Z had requested another DEM 1,000 shortly before trial. Furthermore, Z had told him on the first day of the trial that he was unable to defend him properly as he was under pressure from the prosecution. The Trier Regional Court (Landgericht) interrupted the proceedings and on 26 March 2002 appointed another representative.
The trial was continued on 26 April 2002 (Eröffnungsbeschluss). On 27 March 2003 the Regional Court convicted the applicant of, inter alia, serious theft in a gang, receiving stolen property and drug trafficking, and sentenced him to 7½ years’ imprisonment. The judgment was significantly based on confessions the applicant made when Z was his counsel, namely in the interview of 24 July 2001 and on the first day of trial. In its judgment the Regional Court also addressed the question whether the applicant’s confessions could be used as evidence. The latter had maintained that these had been obtained illegally and that he had made his confessions only because he had been deceived by the investigating authorities and his counsel, who had been under pressure from the Public Prosecutor’s Office. Moreover, he had been made promises and given certain guarantees. The Regional Court held that there was no indication that the applicant had been led to confess by any kind of promise or deceit, or that his representative had collaborated, under any kind of pressure, with the prosecution to the applicant’s detriment. These findings were based on the testimonies of the investigating public prosecutor, of the two police officers who had questioned the applicant, of two interpreters who had been present during interviews, and of Z himself, whom the applicant had released from his duty of confidentiality. Z had stated, inter alia, that the interview on 24 July 2001 had taken place at the applicant’s own express request. In its assessment of Z’s testimony the Regional Court set out that it took into account that investigations against Z were opened because of statements by the applicant. It held that there was no indication that Z had made false statements out of revenge or because he was under pressure.
On 16 June 2004 the Federal Court of Justice dismissed the applicant’s appeal on points of law. It referred in a general manner to submissions of the Federal Public Prosecutor of 6 April 2004. The latter had argued, inter alia, that the applicant’s right to defence by independent counsel was not unduly restricted by the fact that preliminary investigations had been opened against his representative or because the prosecution had gained an insight into the defence documents. Firstly, the investigation had come to Z’s attention at the earliest in September 2001, when the applicant was heard as a witness. Against this chronological background, it could be excluded that the opening of the investigation proceedings as such or the issue of the search and seizure warrant against Z had any influence on the applicant’s defence. Hence, the applicant’s decision to ask for another interview and to make a confession on 24 July 2001 had been independent and free from any influence from the prosecution. Secondly, the mere fact that the prosecution later on had knowledge of defence documents did not prevent the applicant from an effective use of his procedural rights and thus did not in principle contravene a fair trial. Thirdly, with regard to the applicant’s allegation that he was made promises that were not kept later on, the Federal Public Prosecutor pointed out that there was no indication of such promises having been made.
By letter of 27 July 2004 the applicant lodged a complaint about a violation of the right to be heard (Gehörsrüge) with the Federal Court of Justice. He complained that he only received the Federal Public Prosecutor’s submissions on 1 July 2004, that is, after the Federal Court of Justice had decided on his appeal on points of law.
On 21 December 2004 the Federal Constitutional Court declared the applicant’s first constitutional complaint inadmissible. It held that remedies had not been exhausted as the applicant’s complaint about a violation of the right to be heard was still pending with the Federal Court of Justice. However, it pointed out that it could neither be excluded that the applicant’s right to be heard had been violated nor that the Federal Court of Justice could still make up for a possible denial of that right.
On 28 April 2005 the Federal Court of Justice rejected the applicant’s complaint. Prior to its decision it heard the Federal Public Prosecutor and the applicant, the latter also with regard to the Federal Public Prosecutor’s submissions of 6 April 2004. In its decision the Federal Court of Justice found that the complaint had to be rejected because the applicant’s submissions would not have been relevant for the outcome of his appeal on points of law. The Federal Court of Justice referred to the new submissions of the Federal Public Prosecutor, in which the latter had dealt in detail with the arguments brought forward by the applicant. With regard to the applicant’s submission that Z had already had knowledge of the Trier District Court’s decision of 12 April 2001 (seizure of the applicant’s letters) in April 2001, the Federal Public Prosecutor had held that this did not show that the defence was influenced in a way which led to an impediment to the criminal proceedings – in particular in view of the fact that the Trier Regional Court had found in its judgment that the testimony of Z, in which the latter had excluded any kind of influence being brought to bear on the defence, had been “detailed, clear and comprehensible”. Finally, after deliberating anew on the appeal on points of law and taking into account all of the applicant’s submissions, the Federal Court of Justice came to the conclusion that its decision of 16 June 2004 had to be upheld.
On 14 July 2005 the Federal Constitutional Court declared the applicant’s second constitutional complaint inadmissible. With regard to his complaint that the domestic courts denied the existence of an impediment to the proceedings although during the preliminary investigations and parts of the trial he had had counsel who should have been excluded, the Federal Constitutional Court granted the applicant’s request for reinstatement of the proceedings (Wiedereinsetzung in den vorigen Stand), but held that the complaint was unsubstantiated as he had not explained what concrete failures or acts on the part of his representative had resulted in a violation of his rights by the subsequent court decisions. Moreover, he had failed to set out why the alleged violation could be remedied only by way of a finding that there had been an impediment to the proceedings. With regard to the remaining complaints, which were all submitted later on, the Federal Constitutional Court held that these had been submitted too late. It rejected the applicant’s related requests for reinstatement of the proceedings, holding that he had failed to demonstrate that he had been prevented from respecting the prescribed time-limits through no fault of his own.
B. Relevant domestic law
Section 138a § 1 of the Code of Criminal Procedure, on the Exclusion of Defence Counsel, provides:
“(1) Defence counsel shall be excluded from participation in proceedings if he is strongly suspected, or suspected to a degree justifying the opening of the main proceedings,
2. of abusing communication with an accused not at liberty for the purpose of committing criminal offences or substantially endangering the security of a prison, or...”
The relevant provisions of the Criminal Code read as follows:
“Section 352 – Overcharging of Fees
(1) A public official, attorney or other person rendering legal assistance, who has to charge fees or other compensation on his own behalf for the discharge of official functions, shall, when he charges fees or compensation, which he knows the person paying either does not owe at all or only owes in a lesser amount, be punished with imprisonment for not more than one year or a fine.
(2) An attempt shall be punishable.”
“Section 358 – Collateral Consequences
Collateral to imprisonment for at least six months for a crime under Sections 332, 335, 339, 340, 343, 344, 345 subsections (1) and (3), 348, 352 to 353b subsection (1), 355 and 357, the court may deprive the person of the capacity to hold public office (...).”
According to Section 14 § 2 Nr. 3 of the Federal Lawyers’ Act (Bundesrechtsanwaltsordnung) admission to practice as a lawyer (Anwaltszulassung) shall be revoked if a lawyer has lost the capacity to hold public office because of a criminal conviction.
Relying on Articles 5, 6 and 14 of the Convention, the applicant complained about his criminal conviction and the related domestic criminal proceedings. In particular, he complained that the domestic courts denied the existence of an impediment to the proceedings on account of the fact that for eight months he had had court-appointed counsel who should have been excluded. He also complained about the Federal Constitutional Court’s rejection of his requests for reinstatement of the proceedings.
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...”
3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”
The Court notes that the case raises issues under Article 6 § 3 (c), laying down specific rights of the defence in criminal proceedings, as well as under Article 6 § 1, guaranteeing the right to a fair trial. It observes that the guarantees in paragraph 3 of Article 6 are particular aspects of the right to a fair trial set out in paragraph 1 (see, inter alia, Poitrimol v. France, judgment of 23 November 1993, Series A no. 277, § 29, and Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 59, ECHR 2000-II). It will, therefore, examine the complaints under both provisions taken together.
Assuming that the applicant substantiated his constitutional complaint concerning the involvement of Z and thus exhausted domestic remedies in this respect, the question arises whether the applicant’s criminal conviction violated his right to a fair trial on the ground that during the preliminary investigation and parts of the trial, he had court-appointed counsel who allegedly should have been excluded. The Court therefore considers that it has to be determined under which conditions Article 6 § 3 (c) obliges the State to remove court-appointed counsel from a case.
The Court has held that the States’ obligation to ensure the effectiveness of the defence is not limited to assigning counsel. That alone does not ensure effective assistance since the lawyer appointed for legal aid purposes may die, fall seriously ill, be prevented for a protracted period from acting or shirk his duties. If they are notified of the situation, the authorities must either replace him or cause him to fulfil his obligations (see Sannino v. Italy, no. 30961/03, § 48, ECHR 2006 ..., and Artico v. Italy, judgment of 13 May 1980, Series A no. 37, § 33). The courts can be under a duty to take measures of a positive nature to ensure that counsel’s obligations to the defendant are properly fulfilled (see Goddi v. Italy, judgment of 9 April 1984, Series A no. 76, § 31). Nevertheless, owing to the legal profession’s independence, the conduct of the defence is essentially a matter between the defendant and his representative; the competent national authorities are required under Article 6 § 3 (c) to intervene only if a failure by public defence counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way (see Lagerblom v. Sweden, no. 26891/95, § 56, 14 January 2003; Imbrioscia v. Switzerland, 24 November 1993, § 41, Series A no. 275, and Kamasinski v. Austria, judgment of 19 December 1989, Series A no. 168, § 65). Against this background the mere fact that there are grounds for the assumption that court-appointed counsel might possibly not provide for an effective defence does not, in principle, give rise to an obligation on the part of the state to remove the lawyer from the proceedings.
In the present case the authorities could have been aware of the potential conflict of interests for the applicant’s representative from April 2001, when the investigation judge ordered the seizure of the applicant’s letters and sent the decision, inter alia, to his counsel Z, in particular, as it was set out in the decision that the seizure was ordered on the sole ground that the letters contained information about possible payments from the applicant to Z. However, the Court is not called upon to determine whether, according to the domestic law, notably section 138a of the Code of Criminal Procedure, the authorities were under an obligation to remove Z from the case, nor to assess whether such a removal would have been advisable in order to prevent any risk of a collision of interests. The Court’s task is to assess whether, from the Convention point of view, the applicant’s defence rights were respected to a degree which satisfies the guarantees of a fair trial under Article 6 of the Convention (HanZevački v. Croatia, no. 17182/07, § 20, 16 April 2009) and to examine whether the criminal proceedings against the applicant, in their entirety, were fair (see, among other authorities, Imbrioscia, cited above, § 38).
There is no indication whatsoever in the present case that the applicant’s lawyer did in fact shirk his duties or that he failed to provide effective representation. In its judgment, the Regional Court dealt exhaustively with the existence of a proper defence when it addressed the question whether the applicant’s confessions could be used as evidence. Having heard the witnesses and the applicant, it set out in a duly reasoned and persuasive manner that nothing indicated that the applicant had been led to confess by any kind of promise or deceit, or that Z had collaborated, under any kind of pressure, with the prosecution to the applicant’s detriment. Moreover, the Court points out that the applicant’s contention that there was an impediment to the proceedings is exclusively based on the fact that investigations were instituted against Z because of him. He has not identified a single concrete shortcoming in the procedural assistance provided by Z. Finally, it cannot be ignored that the applicant’s statements bear contradictions and inconsistencies regarding possible payments to Z. While he stated that Z had requested additional fees for the defence when he requested that Z be removed from the case, he denied such facts on other occasions during the proceedings and failed to give any reasonable grounds for doing so. Moreover, throughout the whole preliminary investigation, the applicant had not made any attempt to get another counsel, not even after he was heard as a witness in the course of the criminal proceedings against Z.
Against this background the Court finds that the instant case does not disclose any failure of the court-appointed lawyer, Z, to provide effective representation. Therefore it cannot be said that the State did not comply with its obligation to ensure the effectiveness of the defence or that the applicant did not have a fair trial within the meaning of Article 6 of the Convention on the ground that the domestic courts did not find an impediment to the proceedings in the applicant’s case.
It follows that this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The Court notes that these complaints are likewise solely based on the involvement of Z in the proceedings and are therefore in essence the same as those already examined under Article 6 of the Convention. Hence, no separate issues arise under Articles 5 and 14.
It follows that this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
In the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen