CURRENT DEVELOPMENTS ON BIAS DUE TO PRIOR REFERRAL
Imagine you are innocently accused of having committed a murder. Your trial begins and you stand before a judge who has already mentioned your name in another judgment. There the judge showed himself “convinced” that you are a murderer. Do you think it is okay that this judge should now also decide your fate?
In February 2021, the European Court of Human Rights (ECHR) had found that a German criminal trial did not meet the requirements of a fair trial according to international standards because the judges involved were biased (Meng vs. Germany case). Since then, there has been movement in the discussion on the conditions under which a judge who has already been involved in other proceedings is biased. The problem of a defendant facing a judge who has previously stated in a written judgment that he or she is convinced of the guilt of the current defendant is discussed under the heading of “prejudice”. The decision of the Federal Constitutional Court of 27.01.2023 (Ref. 2 BvR 1122/22) brought the discussion in Germany to a temporary climax – but certainly not to its end. The case is currently pending before the European Court of Human Rights under application no. 25095/23.
1. THE INITIAL CASE MENG VS. GERMANY
The decision of the ECtHR in the case “Meng vs. Germany” concerned the suspicion of murder. A man had been accused of killing the husband of his mistress. During the trial, suspicions arose that the widow of the deceased might have incited her lover to commit the murder. The suspicion became so strong that the judges also described the wife’s role in the written verdict that sentenced the lover to life imprisonment for murder. The reasons for the verdict contain statements about the (alleged) instigator, including her motives. Up to that point, the widow had not had the opportunity to comment on the accusations against her in formal proceedings. Nevertheless, the judges wrote in the verdict against the lover that they were convinced that the widow was behind it all. She was therefore to be punished as an instigator like a murderer.
Some time later, the widow was tried as an alleged instigator herself – and (partly) before the same judges who had been involved in the first trial. She objected to the judges, who had already participated in the verdict against the former lover, because of concern of bias (§ 24 StGB). In doing so, she argued that she had no confidence in the impartiality and impartiality of the judges. The judges had already made extensive statements about her alleged guilt in the written reasons for the verdict in the previous trial. This gives the impression that her verdict has virtually already been passed.
2. BIAS DUE TO PRIOR REFERRAL IN THE PREVIOUS GERMAN LEGAL TRADITION
In the German courts, the widow was not heard on this argument. Traditionally, German judges assume that, due to their qualifications and their special position, they are “naturally” in a position to face each defendant anew with complete impartiality. This attitude of German judges is justified, among other things, by a reversal of § 22 No. 4 StPO. There it is regulated that a judge may no longer act “if he has been active in the matter as an official of the public prosecutor’s office, as a police officer, as a lawyer for the injured party or as a defense counsel.” Moreover, Section 23 of the Code of Criminal Procedure stipulates that a judge who has participated in a decision in a previous instance is excluded by law in subsequent appeal proceedings (appeal or revision or in the case of a motion for retrial). Such a case did not exist. Since the cases of bias mentioned in the law precisely do not speak of a judge being excluded if he or she previously acted as a “judge” in the same case against a co-defendant, it is argued that such a type of “prior referral” is harmless.
However, Section 24 (1) of the Code of Criminal Procedure expressly clarifies that a judge cannot be biased only if one of the individual cases regulated by law exists. Rather, there is a general concern of bias “if there is a reason to justify mistrust in the impartiality of a judge”. Consequently, the legal system is not a matter of conclusive speciality from a methodological point of view. Rather, the cases mentioned separately in the Act have the consequence that a judge is always and without a special request excluded from participation in proceedings. If the concern of bias is based “only” on a case not specifically named in the law, the defendant must file a special motion. This motion for partiality is then decided in a special procedure. If the motion is granted, the trial “bursts”. If it is wrongly not granted, the defendant still has the possibility to appeal against the judgment rendered with the participation of a biased judge. Pursuant to Section 338 (1) No. 3, the bias of a judge is a so-called absolute ground for appeal. It is generally presumed that a judgment reached with the participation of a biased judge is also based on this procedural error. In particular, a defendant does not have to prove that the verdict would have been different if the judges had not been biased.
3. THE DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS IN THE CASE OF MENG VS. GERMANY
In the case of the accused widow, the German courts saw no reason to grant the motion for partiality. The Federal Constitutional Court had also not accepted for decision a constitutional complaint filed by Ms. Meng. The European Court of Human Rights (ECHR) was different. In its decision “Meng vs. Germany” on February 16, 2021, the Court clarified that one of the fundamental European values of a fair trial is the ability to effectively defend oneself against a conviction. This includes the right of an accused to face an unbiased judge. According to the Strasbourg judges, judges must not only be subjectively unbiased. Rather, it must also be objectively recognizable from a defendant’s point of view that the die has not yet been cast in his proceedings before he was even involved.
One particularity that the ECtHR emphasized in the Meng case was that legally there had been no reason at all to make additional remarks about the wife as the alleged instigator in the first judgment against the “lover.” For in order to legally assess whether someone is a murderer, it does not matter whether he was instigated to do so. The ECtHR thus continued to develop its case law on bias due to prior referral. In earlier decisions, it had also affirmed bias in other constellations, for example, when a later judgment refers to the results of evidence in the earlier judgment.
4. THE SITUATION IN GERMANY AFTER THE ECMR DECISION
Since the decision of the European Court of Human Rights in Meng v. Germany, there has been a certain amount of uncertainty in the German courts. No one knows for sure whether the traditional German principles on bias will have to be adapted to the requirements from Strasbourg. This has practical significance, for example, in constellations in which individual persons accused in the same complex of crimes signal in court that they are prepared to make a confession, while others are not. Frequently, such proceedings are severed. The confessed defendants are offered a favorable deal. They are sentenced to lenient sentences in a “short trial.” These sentences usually become final quickly. The “dropouts” are then available as “key witnesses” in the still ongoing, separate proceedings against the remaining “fighting” defendants. In this way, convictions can be achieved quickly and effectively according to the motto “divide et impera” (“divide and rule”).
This “tactic” of the courts is questionable from the point of view of the rule of law. It harbors the danger that “dropout witnesses” will only make false confessions in order to get out of the proceedings as quickly and cheaply as possible. The truthfulness of such confessions falls by the wayside. Nevertheless, the Federal Court of Justice (BGH), following the Meng decision of the ECtHR, believes that such constellations should continue to be possible in Germany (BGH 3 StR 181/21 – Beschluss vom 18. Mai 2022).
Whether the ECtHR will assume bias on the part of judges in such constellations in the future is still open. In any case, there is a decisive difference to the constellation that had been decided in the Meng vs. Germany case. In a severed trial, the defendants, who did not want to participate in a “rotten deal,” at least had the opportunity to comment on the accusations against them as subjects within formal criminal proceedings at the beginning of the trial. The defendant Meng did not have this opportunity. This is because she was involved in the trial against the actual murderer as the main perpetrator at most as a witness and had good reasons in this preliminary trial to make use of her right to refuse to provide information pursuant to Section 55 of the Code of Criminal Procedure.
5. THE CUM-EX DECISION OF THE BVERFG OF JANUARY 27, 2023
The difference between the various procedural constellations may also have been one reason why the Federal Constitutional Court felt compelled to respond to the requirements from Strasbourg from the perspective of German constitutional law. In connection with one of the first Cum-Ex proceedings, bias on the grounds of pre-referral has likewise been reprimanded (Beschluss vom 27. Januar 2023 – 2 BvR 1122/22). Here, too, it was a matter of a constellation in which the guilt against a defendant had been practically completely established in a preliminary trial, without the defendant having had the opportunity procedurally (except as a witness) in any way to influence the gathering of evidence or the formation of the judges’ opinion.
The term “cum-ex transactions” (also known as dividend stripping) refers to constellations in which tax refunds or tax credits were requested from the state in complex cases involving banks. In this connection, a large number of individuals and banks were the subject of criminal investigations in 2012. Most of these criminal proceedings are being conducted by the Cologne Public Prosecutor’s Office and charged before the Bonn Regional Court. The first of the “Cum-Ex proceedings” ended with a verdict against two British stock exchange traders (Bonn Regional Court verdict of March 18, 2020, Ref. 62 KLs – 213 Js 41/19 – 1/19). One of the two had already made extensive statements as a “key witness” in the preliminary proceedings and incriminated later defendants.
In the first verdict, the “key witness” was convicted, among other things, of aiding and abetting (§ 27 StGB) tax evasion. The main perpetrator was alleged to have been a bank employee, along with two other participants. In addition, several cases of complicity (Sec. 25 (2) StGB) in tax evasion were established.
With regard to the “aiding and abetting” complex of offenses, the first Cum-Ex judgment states, among other things (para. 1575): “The defendant at least aided and abetted the separately prosecuted BP, BX and AE in their intentional and unlawful tax evasion.” Corresponding statements are also found on the complexes of offenses in which complicity is alleged (e.g., marginal no. 1732). Under the heading “Perpetration of the separately prosecuted BP, BX and AE”, the court states: “With regard to the separately prosecuted BP (cases 3, 8 and 11), BX (cases 8 and 11) and AE (cases 3 and 8), the requirements of a perpetration of Section 370 (1) No. 1 AO are present. (…) The intent of the separately prosecuted BP (cases 3, 8 and 11) and BX (cases 8 and 11) referred in particular also further to the possibility that the conditions of the tax credit sought by the confiscation party may not exist.”
Consequently, in the first Cum-Ex judgment, comprehensive findings have already been made on objective contributions to the crime and on the intent of later defendants. At several points, the court, with the participation of the recused judges, was “convinced” that the later defendant had committed intentional and unlawful tax evasion and was also not subject to any criminally relevant error regarding the tax law situation.
The Bonn Regional Court itself assumed in the reasons for its first conviction that it would not have been necessary to establish the defendant’s intent in the first verdict in order to convict the first defendant as an accessory. In connection with the aiding and abetting, for example, it is stated (para. 1662): “On the basis of the foregoing, it is irrelevant whether, in addition, the separately prosecuted CD, BM, AP and AW – in accordance with the accusation of the prosecution – have also committed criminal offenses (in particular with complicity) through their actions (…). The same would also apply – notwithstanding the findings to the contrary – with regard to the separately prosecuted BP and BX, insofar as it would be assumed with regard to them that they acted without intent, since in this case the requirements of indirect perpetration would be met for the separately prosecuted AE.” The same is stated in the judgment against S. and D. with regard to the two sets of facts that the later defendant is alleged to have committed as co-perpetrator with the “key witness” (para. 1736).
None of this impressed the Federal Constitutional Court. It came to the conclusion that the standards of the ECtHR in the “Meng” case did not lead to the Cum-Ex conviction being unconstitutional.
6. OVERT AND SURREPTITIOUS RECOURSE TO EVIDENCE RESULTS
In the second Cum-Ex judgment, no explicit reference was made in the written reasons for the judgment to the findings in the first judgment or to the evidence taken there. According to the standards of the ECtHR in previous decisions on bias within the meaning of Art. 6 ECHR, this would entitle the judge to be recused in any case.
Nevertheless, it is to be expected – at least hoped – that the European Court of Human Rights will also affirm bias in the Cum-Ex case – and thus correct the decision of the Federal Constitutional Court of January 27, 2023.
For two coincidences shattered the illusion that the rejected judges would have faced the new defendant completely without prejudice.
During the main hearing, a dispute arose over the content of the testimony of a witness from the previous trial. In this context, the chairman, who had already been dismissed for pre-trial proceedings, had said: “Not everyone here in the room – actually only very few in the room, namely [the rapporteur] and I, to be precise – heard the questioning [of the witness] at that time (…) I remember it somewhat differently from what you said (…).” After superior knowledge had been claimed in this way vis-à-vis the defendant from the previous trial, the last doubts should have evaporated that the judge was “also just a human being” who naturally cannot detach himself from earlier experiences and memories.
More by chance than by misadventure, the following also came to light:
At the 12th Criminal Chamber of the Bonn Regional Court, which had been set up there as the “Cum-Ex Chamber”, an electronic folder was kept containing transcripts from previous proceedings. All chamber members had access to this folder, including those who had not yet been involved in the first judgment. This “secret file” had become known by chance. In one of the later Cum-Ex proceedings before the 13th Criminal Division, the defense attorneys had requested access to the files. In the course of this file inspection, a USB stick containing the internal transcripts had been sent by mistake by a court employee. It came to light that the transcripts had not only been made available to the judges within the 12th chamber, but had also been passed on to a judge of the 13th criminal chamber. This process led – justifiably – to the rejection in the more recent proceedings (LG Bonn, Beschlussl. v. 22.02.2023 63 KLs-213 Js 15/22-1/22 = StV/Strafverteidiger 8/2023, p. 514).
This anecdote about the internal transfer of information from one court proceeding to the next has not yet been taken into account in the decision of the Federal Constitutional Court. At the time, it had not yet been made public. However, it is to be expected that the European Court of Human Rights will take an interest in the matter. Because if it is already supposed to lead to bias on the part of a judge if he expressly refers to earlier proceedings in his reasons for judgment, this must apply all the more if he does so secretly.
7. RESUMPTION OF THE PROCEDURE
Incidentally, the dispute over how to deal with biased judges continues in the Meng case. After winning at the European Court of Human Rights in Strasbourg, the complainant filed an application for a retrial under Section 359 No. 6 of the German Code of Criminal Procedure (StPO). Decisions of the European Court of Human Rights do not have direct effect in Germany. Only judgments of German courts have a binding effect. If a defendant n Strasbourg has successfully complained that a criminal conviction is contrary to human rights, he must therefore first file an application for a retrial. Now, however, Section 359 No. 6 of the Code of Criminal Procedure provides for the motion for retrial that the criminal conviction must be “based” on the human rights violation. This is not easy for a defendant to prove. For one never knows whether a verdict would really have turned out differently if the judges involved had not been biased. The Frankfurt Higher Regional Court rejected the defendant Meng’s application for a retrial for this reason (see decision dated July 8, 2022 – 1 Ws 21/22).
A new constitutional complaint was lodged against this (2 BvR 1699/22). No decision has yet been made on this constitutional complaint. At least the Federal Constitutional Court announced on the online list of important new entries that it intends to rule on the issue.
It would be absurd if a defendant were denied the right to a fair trial before an impartial judge only because the German courts failed. If the German courts had already correctly recognized in the original proceedings that “it does not work like that”, there would have been an absolute ground for appeal pursuant to Section 338 No. 3 of the Code of Criminal Procedure. The contradiction in value between Section 338 No. 3 of the Code of Criminal Procedure and Section 359 No. 6 of the Code of Criminal Procedure, which is inherent in the law, may not be resolved to the detriment of a defendant. Otherwise, the idea of a fair trial in criminal proceedings would be definitively abandoned.
8. FAIRNESS IN THE PROCESS
Confidence in the criminal process does not come from maintaining an illusion. Efforts should be made to recognize and counteract human weaknesses, including those of judges. Nevertheless, neither the Federal Constitutional Court nor the Federal Court of Justice have yet dealt with the most important arguments in favor of affirming the apprehension of bias on the part of a pre-referred judge in the constellations at issue.
In the last 50 years, there has been extensive empirical research in psychology on the functioning of the human brain. Effects such as the so-called “confirmation bias” or the “inertia or perseverance effect” have become standard knowledge. People tend to look for confirmation of their opinions and hypotheses once they have been established. Newly acquired information that does not fit in is systematically blanked out and consistently underestimated. Even judges are not immune to this effect, which leads to “tunnel vision”. Rather the opposite is the case. Supposed specialists in particular tend to overestimate their own abilities.
However, it does not require recourse to the results of psychological research to recognize that a prejudiced judge is biased. In most cases, it is enough to ask one’s own grandmother. Just imagine yourself being wrongly accused of murder, rape, or even “just” tax evasion. Would you feel comfortable if you were presented with a judge who, in another context, had already stated in writing that he thought you were guilty? Probably hardly any defendant in this case would agree with the hypothesis that it is a fair trial.
However, this is precisely what the requirement of procedural fairness in the sense of Article 6 (1) ECHR is about: developing general rules of procedural fairness that apply to everyone and that a reasonable person could sign even if he does not know what role he is in. These rules must apply even if it “hurts” in an individual case, i.e. the application of the law could lead to a murder trial or criminal tax proceedings having to be repeated.
In this context, the special opinion of the Federal Constitutional Court judges Leibholz, Geiger and Rinck from 1971 is impressive (BVerfG, decision of 26.1.1971 – 2 BvR 443/69 = NJW 1971, 1029, 1031):
„It is no longer possible to simply refer to the formerly prevailing view, as held by the RG, according to which a judge who has participated in an earlier decision is “naturally” in a position to form a new judgment without bias on the basis of the evidence presented in the new proceedings.“
This view overlooks the fact that after the long and successful struggle against absolutism, the police state and the common law principle of the inquisition, the position of the accused in criminal proceedings has become fundamentally different. Today, the accused no longer appears as an object facing the judge in the trial, but as a subject of the trial, whose independence is to be protected against the possibly incorrect exercise of power by the state through a wide variety of standards of criminal procedure. Today, the accused should be given the secure feeling that his trial is being handled by a judge who – since he has not been involved with the case before – is completely unbiased toward the accused.”
These statements are more topical than ever. Unfortunately, one rarely hears such clear statements from those judges currently serving on the Federal Constitutional Court. It is to be hoped that the judges at the European Court of Human Rights in Strasbourg will take the opportunity to remind Germany that it was once perceived as a model of the rule of law in the world.
