TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): Der Bundesgerichtshof begründet das damit, dass das Auskunftsverweigerungsrecht allein dem Schutz des Zeugen gilt, das allein dessen Rechtskreis betroffen ist.
AP1 (Applicant): So kann ein Zeuge, selbst wenn ihm kein Auskunfts- oder Zeugnisverweigerungsrecht zur Seite steht, gemäß § 247 seine Aussage davon abhängig machen, dass der Angeklagte aus dem richtigen Sitzungssaal entfernt wird.
AP1 (Applicant): Die im deutschen Recht vorhandenen zahlreichen Ausnahmen des Konfrontationsrechts könnten am Ende zur Etablierung eines Beweisführungsmonopols des Staates führen.
AP1 (Applicant): Das ist die Gefahr, die da besteht.
AP1 (Applicant): Das Bundesverfassungsgericht hat für den Sachverständigenbeweis allerdings entschieden, und zwar im Zivilverfahren entschieden, dass die Parteien Fragen an den Sachverständigen stellen können müssen.
AP1 (Applicant): Das ist eine Entscheidung vom 03.02.1998, schon ein bisschen älter, Aktenzeichen 1 BVR 909 aus 94.
AP1 (Applicant): Dabei komme es nicht darauf an, ob das Gericht die von den Parteien aufgeworfenen Fragen für klärungsbedürftig hält.
AP1 (Applicant): Diese Ausführung hat das Bundesverfassungsgericht auch auf verwaltungsgerichtliche, arbeitsrechtliche, sozialrechtliche und finanzgerichtliche Verfahren erstreckt, allerdings nicht auf das Strafverfahren.
AP1 (Applicant): Das hat sich dazu nicht geäußert.
AP1 (Applicant): Das Bundesverfassungsgericht hat dies begründet mit dem Anspruch der Parteien auf rechtliches Gehör nach Art. 103 Abs. 1 Grundgesetz.
AP1 (Applicant): Der Angeklagte im Strafverfahren hat aber gleichermaßen Anspruch auf rechtliches Gehör.
AP1 (Applicant): Das rechtliche Gehör des Angeklagten reicht mit Sicherheit nicht weniger weit als etwa das rechtliche Gehör einer Partei in zivilrechtlichen Streitigkeiten.
AP1 (Applicant): Gleichwohl hat das Bundesverfassungsgericht, ich habe es gesagt, eine ausdrückliche Erstreckung bislang noch nicht vorgenommen.
AP1 (Applicant): Das Verfahren muss aber gemessen an Art. 5 Abs. 1 der Konvention nach dem innerstädtlichen
AP1 (Applicant): Recht im Rahmen des Verfahrensrechts rechtmäßig gewesen sein.
AP1 (Applicant): Es könnte viel Arbeit auf den Gerichtshof zukommen, wenn das Bundesverfassungsgericht an seiner bisherigen Rechtsprechung festhalten sollte und die Konfrontationsrechte nicht auch auf den Beschuldigten erweitern würde.
AP1 (Applicant): Ich möchte zum Abschluss noch eine Bemerkung machen.
AP1 (Applicant): Wir haben im Augenblick in Deutschland das Phänomen zu betrachten, mir ist es relativ neu, dass das Bundesverfassungsgericht der Rechtsprechung des Gerichtshofs, ich will es mal vorsichtig ausdrücken, nur zögerlich folgt.
AP1 (Applicant): Der Gerichtshof hat in einer sehr interessanten und sehr guten Entscheidung, wie ich finde, in Sachen Furcht gegen Deutschland, die Frage geklärt, was passiert, wenn ein Bürger durch einen Engendom Provocateur zu einer Tat veranlasst wird und hat ein Beweisverwertungsverbot gefordert.
AP1 (Applicant): Das hat das Bundesverfassungsgericht in einer Entscheidung, ich habe das Datum nicht im Februar diesen Jahres abgelehnt und gesagt, aus dogmatischen Gründen müsse es nicht zu einem Beweisverwertungsverbot kommen.
AP1 (Applicant): In einem von mir geführten Verfahren habe ich mich auf Nesirei gegen Deutschland, das Verfahren bezieht sich auf die Frage, ob gegen ein abwesender Angeklagten im Berufungsverfahren die Berufung einfach ohne Sachverhandlung verworfen werden kann.
AP1 (Applicant): Da hat der Europäische Gerichtshof gesagt, das ist konventionswidrig, das verstehe ich gegen Artikel 6 Absatz 3 der Konvention und die Oberlandesgerichte folgen dieser Rechtsprechung nicht, obwohl die Bundesregierung, das muss man auch sagen, das Gesetz ändern will und das Gesetz der Rechtsprechung des Gerichtshofs anpassen will.
AP1 (Applicant): Ich selber habe in dieser Sache eine Verfassungsbeschwerde erhoben, die nicht zur Entscheidung angenommen worden ist, übrigens ohne Begründung, was mich zu der letzten Bemerkung veranlasst.
AP1 (Applicant): Wir haben hier auch darüber gesprochen, ob Herr Schacciaspilli Anspruch auf eine mündliche Revisionsverhandlung gehabt hätte.
AP1 (Applicant): Das ist Gegenstand der Menschenrechtsbeschwerde gewesen.
AP1 (Applicant): Wir reden jetzt heute nicht mehr darüber, aber seien Sie sicher, wenn wir eine mündliche Verhandlung vom Bundesgerichtshof gehabt hätten, hätte ich ähnlich vorgetragen wie jetzt hier.
AP1 (Applicant): Und in einem solchen Verfahren hätte sich… … heißt ganz oft, das war der Länderbericht und da hätte ich mir gefangen, meine Kraft Untertitel im Auftrag des ZDF, 2021
Dean Spielmann (JudgeP): Herr Mayer-Mews, darf ich Sie auffordern, zum Schluss zu kommen?
Dean Spielmann (JudgeP): Sie haben bereits die Zeit längst verschritten.
Dean Spielmann (JudgeP): Ja.
AP1 (Applicant): Ich bin sofort zu Ende. In dem Fall ist es so gewesen, dass es eine Entscheidung ohne Begründung gegeben hat.
AP1 (Applicant): Das haben Sie gelesen.
AP1 (Applicant): Ich beantrage festzustellen, dass das Fragerecht aus Art. 6 Abs. 3 d der Konvention im Strafverfahren
AP1 (Applicant): gegen den Beschwerdeführer verletzt worden ist, zu entscheiden, dass dem Beschwerdeführer für das Verfahren Auslagen in Höhe von 10.000 Euro zu erstatten sind, zu entscheiden,
AP1 (Applicant): dass dem Beschwerdeführer gemäß Art. 41 eine Entschädigung von 30.000 Euro zu zahlen
AP1 (Applicant): ist.
AP1 (Applicant): Das ist nicht gut.
Dean Spielmann (JudgeP): Dankeschön, Herr Meyer-Mews. Ich gebe jetzt Herrn Behrens das Wort.
GR1 (Government): I will start with some more general remarks.
GR1 (Government): This case is about one of the central principles of criminal procedure, namely the defendant's right to confront witnesses with his questions.
GR1 (Government): This is no doubt an important principle, and it's part of the convention.
GR1 (Government): But it is well settled that there are exceptions to this principle.
GR1 (Government): This has been the subject of many cases before this court, most important being that of Al-Khawaja in Tahiri, that's the UK of 2011.
GR1 (Government): That judgment provides a full picture of the common law systems.
GR1 (Government): And it comes to the conclusion that the defendant's right to confrontation is only one aspect of the right to a fair hearing, and that it has a number of exceptions.
GR1 (Government): The expert opinion of Professor Zatzka, who is present here in the courtroom and ready to answer any questions you may have in that regard, provides a picture of the continental European systems.
GR1 (Government): It comes to the same conclusion.
GR1 (Government): All legal systems under consideration recognize the right to confrontation, but they also provide for possibilities to use witness statements, even if the defendant may not have had an opportunity to challenge them.
GR1 (Government): There are several good reasons for these exceptions.
GR1 (Government): First, the main principle of Article VI is the fairness of the proceedings.
GR1 (Government): As the court correctly pointed out in Al-Khawaja, the principle of confrontation is not an absolute precondition of a fair trial.
GR1 (Government): All the principles in Article VI, Paragraph 3, can have exceptions as long as the trial as a whole is fair and equitable.
GR1 (Government): Therefore, it is clearly possible to have fair proceedings without confronting every witness with the defendant's questions.
GR1 (Government): Second, the court has often underlined that the convention not only protects the defendant, but it also protects the victims or potential victims and the general public against crime.
GR1 (Government): That is why we need an effective and well-balanced system of criminal prosecution.
GR1 (Government): In certain cases, therefore, it is necessary in the interests of justice to use witness statements that have been obtained without the possibility of confrontation.
GR1 (Government): Third, there must not be any reward for intimidation by criminals.
GR1 (Government): That is why in cases where the witness is genuinely fearful, the court will normally not be obliged to exclude this testimony in order to protect the defendant's rights.
GR1 (Government): This principle is very clearly established when the trial court recognizes an intimidation by the defendant or by his associates.
GR1 (Government): But also in cases of more general fear that is induced by the crime, the court certainly must be able to admit such testimony.
GR1 (Government): This must be so in order to avoid an advantage for those who committed the crime and are the reason for the witness's fear.
GR1 (Government): Therefore, in these cases, there's nearly always a necessity to use such evidence.
GR1 (Government): One could also raise the question of whether the findings in the Al-Khawaja case can be transferred without any adjustments to a continental system like the German one.
GR1 (Government): We are indeed of the opinion that the continental and the common law system differ in respect of the confrontation of witnesses with the defendant's questions.
GR1 (Government): The confrontation principle is especially vital for the common law system.
GR1 (Government): The idea of seeing the life reactions of the witness at the trial is closely linked to the concept of jury trial in the common law countries.
GR1 (Government): And the marked distaste for hearsay evidence or secondhand evidence stems from the source.
GR1 (Government): Behind it is the idea that jury members lack experience with such an indirect evidence.
GR1 (Government): Therefore, they cannot be expected to assess its trustworthiness as properly as professional judges can.
GR1 (Government): And for this reason, they should have the opportunity to base their verdict on the direct impression of the witnesses in the courtroom.
GR1 (Government): Continental systems, by contrast, rely to a much greater extent on the professional experience of judges.
GR1 (Government): These judges are expected to be able to objectively evaluate the reliability of any and all evidence.
GR1 (Government): And also, and more importantly, the continental system makes the evaluation of the evidence far more transparent.
GR1 (Government): In the jury system, we can only understand the judge's instructions to the jury.
GR1 (Government): We see what the jury knew.
GR1 (Government): But we cannot see what the jury thought or on which pieces of evidence it relied.
GR1 (Government): In the German system, however, the judges of the trial court put into writing in great detail in their judgment what pieces of evidence they relied on and how they assessed them.
GR1 (Government): The present case, with its 150-page judgment, most of which is dealing with the evaluation of the evidence, is a good example.
GR1 (Government): This means, as far as the confrontation principle is concerned, a counterbalancing exercise in cases of exceptions is already inherent in the German system.
GR1 (Government): This makes it clear that the margin for exceptions in a continental system cannot be less than in a common law system.
GR1 (Government): It may even be more flexible in this respect.
GR1 (Government): The Grand Chamber has held in the Al-Khawaja judgment that when reviewing questions of fairness, the specific rules of the procedural system concerned must be taken into account.
GR1 (Government): Rules stemming from one system cannot be applied in an inflexible manner to other systems, which may be based on quite different assumptions.
GR1 (Government): This means that the rights of the defendant may be safeguarded in different ways in different systems, all of which are equally valid under the convention.
GR1 (Government): This is what we call the margin of appreciation.
GR1 (Government): The responsibility of this court is not to decide whether the Göttingen trial court was correct in admitting the testimony of the witnesses O&P, or whether there would have been a better or different way to proceed.
GR1 (Government): This court's only task is to examine whether the Göttingen court took the convention sufficiently into account, and therefore did not overstep the line drawn by the convention, especially the line between the national margin of appreciation and the guarantees of the convention.
GR1 (Government): To sum up our general remarks, the German government admits, first, that the findings of the court in Alcahuaca should be transferred to the continental system in a flexible manner.
GR1 (Government): Second, that the protection of human rights does not demand even narrower case law in favor of defendants.
GR1 (Government): Third, that this court should respect the national margin of appreciation and not go too far into the national systems and the details of the local court proceedings.
GR1 (Government): I will now come to some remarks on this particular case.
GR1 (Government): If the examination of a witness at the trial itself is to be replaced by substitute evidence, there must be good reasons for the trial court to make that decision.
GR1 (Government): In the present case, witnesses O&P were no longer in Germany, but in Latvia, their home country, during the trial.
GR1 (Government): We know that the Göttingen court tried to convince the witnesses to come to Germany and attend the hearing, but it was unable to do so.
GR1 (Government): As they were not under its jurisdiction, it could not coerce them to attend.
GR1 (Government): The result was that it was objectively impossible to examine them in person during the trial.
GR1 (Government): This is a very good reason to accept substitute evidence.
GR1 (Government): However, substitute evidence can only ever be a measure of last resort.
GR1 (Government): So we have to ask, could the trial court have taken any additional action to secure the defendant's right of confrontation?
GR1 (Government): There we can point to a long list of measures tried by the Göttingen court.
GR1 (Government): After the initial unsuccessful summons to appear, the presiding judge wrote personal letters to O&P, describing the importance of their appearance at the trial, even allowing them to tick boxes to facilitate responses.
GR1 (Government): As the next step, the European Judicial Network was contacted in order to set up a video link examination.
GR1 (Government): All the necessary preparations for such a video conference were already set in motion.
GR1 (Government): There was repeated correspondence with the Latvian court, including a personal letter from the presiding judge in Göttingen to the presiding judge in Latvia.
GR1 (Government): We submitted copies from the court files containing at least 36 letters, notes, requests, et cetera, from the Göttingen trial court, the Latvian court, the witnesses, other authorities, all on this particular problem.
GR1 (Government): None of these measures led to the desired result, the attendance of the witnesses at the trial.
GR1 (Government): I mention this at this length because Judge Powerford, in her separate opinion from the chamber judgment, gives the impression that there were effective measures which were not contemplated by the German court but should have been taken.
GR1 (Government): But in fact, neither the options mentioned by Judge Powerford nor those mentioned by the applicant did indeed offer a solution.
GR1 (Government): For instance, the offer of giving evidence anonymously does not make much sense in this case.
GR1 (Government): The identity of the witnesses who were the victims of the crime was perfectly well known to the defendant.
GR1 (Government): Witness protection programs will certainly not work in this kind of situation with the witnesses in another country.
GR1 (Government): It was absolutely clear that the witnesses did not want to come to Germany at all, but rather wanted to stay in their home country with their families, both of which included young children.
GR1 (Government): Also, there's no reason to suppose that the witnesses would have been prepared to give evidence before German consular officers rather than before Latvian court.
GR1 (Government): And I must admit that the idea of having that brought up on a diplomatic level between ministers is one that has not come up yet and has surprised me today.
GR1 (Government): But finally, safe conduct, as suggested, would also have been superfluous.
GR1 (Government): Contrary to the applicant's submission, ONP had nothing to fear from German authorities upon a return to Germany.
GR1 (Government): As the police records show, the police officer investigating the case had noted the residence, nationality, and occupation of the witnesses and explicitly recorded that there was no indication of any illegal conduct on their part.
GR1 (Government): Even if the witnesses themselves may initially have been unsure whether their situation might cause problems with the police, they could certainly be sure after the police control on February 14 that this was not the case.
GR1 (Government): This is a good example for the reasons why an international court should not go into the details of national penal procedure measures.
GR1 (Government): It may, in specific cases, be sometimes obvious what should have been done or omitted.
GR1 (Government): But normally, an international court which does not have the case files and the pieces of evidence at hand is too far away to assess which measures might have been promising at a certain stage of the national proceedings.
GR1 (Government): Even the applicant, not once during the proceedings in Germany, suggested that there could have been other options to induce O&P to testify, either at the trial or in Latvia.
GR1 (Government): It is only now before the grand chamber that he has come up with these ideas.
GR1 (Government): The regional court thus made every effort that could reasonably have been expected from the German authorities.
GR1 (Government): Reading out the protocols of the witness examinations and questioning the investigating judge and the police officers who had examined the witnesses was the last resort of introducing these pieces of evidence.
GR1 (Government): The applicant now submits that the German authorities were obliged to ensure confrontation with the witnesses before the trial.
GR1 (Government): He claims that the investigating judge should have included the applicant himself or his counsel when he examined the witnesses on February 19.
GR1 (Government): In another version of his argument, he asserts that the investigating judge should have had him arrested and should have thereafter appointed defense counsel for him before again examining witnesses O&P in the presence of defense counsel.
GR1 (Government): And in this context, I would like to say a few words about the witnesses and their state of fear.
GR1 (Government): There can be no doubt from the files that both witnesses were extremely frightened.
GR1 (Government): The investigating judge said clearly during the trial that although the witnesses said, and that was quoted, that they were not very nervous, they just couldn't sleep, he perceived both of them as thoroughly frightened of the applicant and his accomplices.
GR1 (Government): Both women were severely intimidated because they were threatened during the robbery and told not to tell the police about the incident.
GR1 (Government): Witness O had a knife held to her body during that incident, and witness P was pursued by a person through the night.
GR1 (Government): It should also be recalled that the authorities had to work under the assumption that they were dealing with an organized gang of violent criminals who had already robbed and intimidated other women under similar circumstances.
GR1 (Government): That means that arresting the applicant would not have protected the witnesses from other members of the gang.
GR1 (Government): It was therefore perfectly logical for the judge to conclude that O&P would not testify in the presence of the applicant, nor would they do so in the presence of any representative.
GR1 (Government): Today we know that the applicant had previously indeed robbed another prostitute in Kassel, a crime for which he was convicted, in that case after confrontation with the victim during the trial.
GR1 (Government): The government therefore submits that the rules for excluding the confrontation between defendant and witness cannot be stricter at the pretrial stage than they would have been at the trial.
GR1 (Government): The applicant and his accomplices did not have the right to continue intimidating the witnesses by their presence during the examination or to benefit from it.
GR1 (Government): The exclusion from the examination by the investigating judge was therefore not only justified, but inevitable in the circumstances.
GR1 (Government): This assessment of the situation was confirmed later when the Latvian court told the Göttingen trial court in a letter of 2008 that both witnesses were afraid that the defendants might find out their address in Latvia and that witness O was afraid because the defendants had threatened them with an act of revenge.
GR1 (Government): It is obvious that this was the underlying reason for their illness and the reason why they would not come to Germany to attend the trial.
GR1 (Government): Finally, at the pretrial stage, there was no reason to conclude that O and P would not be available for the trial itself, even taking into account their state of fear.
GR1 (Government): It should be noted that during the trial itself, the applicant and his accomplices or members of the gang would have been in detention, and the threat to O and P thus diminished.
GR1 (Government): That's a different situation.
GR1 (Government): There was also good reason for the authorities not to appoint defense counsel at the pretrial stage.
GR1 (Government): The applicant maintains that the jurisprudence of the Federal Court of Justice imposes a general ban on the introduction of witness statements if they were obtained without the presence of such defense counsel.
GR1 (Government): That is simply not true.
GR1 (Government): In cases where the suspect is not aware of an ongoing investigation, as was the case here, the appointment of defense counsel and his presence at the interview would immediately give away the fact and the current state of the investigation.
GR1 (Government): In such cases, therefore, there can be no automatic ban on the evidence.
GR1 (Government): In addition to that, the witnesses would rightly have supposed that the presence of any representative of the applicant would expose them to the same kind of danger as his own presence.
GR1 (Government): To sum up, the Göttingen trial court had good reasons to admit substitute evidence concerning witnesses O and P because it was objectively impossible to have them in person at the trial.
GR1 (Government): The investigating judge had very good reasons to exclude the applicant, as well as potential counsel, from the examination of these witnesses because they had been severely threatened by the perpetrators of the crime and were extremely frightened.
GR1 (Government): Second, other pieces of evidence may be open to the defendant's questions.
GR1 (Government): Both the investigating judge and the police officers who had interviewed O and P were present at the trial.
GR1 (Government): The applicant was able to question them about the hearings.
GR1 (Government): Also, the neighbors who had been informed by the victims shortly after the crime were present at the trial and could have been questioned.
GR1 (Government): Most importantly, thirdly, when admitting untested evidence, it must be evaluated by the court with due regard to its reduced value.
GR1 (Government): All these elements were present in our case.
GR1 (Government): It goes without saying that any testimony taken at the pretrial stage without the presence of the defendant or counsel must be weighed extremely carefully.
GR1 (Government): This is the main counterbalancing factor to be taken into account when deciding on the overall fairness of the proceedings.
GR1 (Government): Looking at the evaluation of the evidence by the Göttingen Court, it is clear that the court took great care to scrutinize it thoroughly.
GR1 (Government): The reduced evidentiary value of the statements was explicitly mentioned and duly taken into account.