THIRD SECTION
CASE OF MENG v. GERMANY
(Application no. 1128/17)
 
 
JUDGMENT
 
Art 6 § 1 (criminal) • Objectively justified doubts as to impartiality of court convicting applicant of murder, presided by a judge previously sitting in separate proceedings concerning only her co-accused, which made extensive findings of established fact and legal qualifications prejudging the applicant’s guilt • New findings established by court not exempting an examination of whether the previous judgment contained findings prejudging the applicant’s guilt • Defect not remedied by higher instance court
 
STRASBOURG
16 February 2021
 
FINAL
 
16/05/2021
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Meng v. Germany,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Paul Lemmens, President,
 Dmitry Dedov,
 Georges Ravarani,
 María Elósegui,
 Darian Pavli,
 Anja Seibert-Fohr,
 Peeter Roosma, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 1128/17) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Ms Salina Meng (“the applicant”), on 27 December 2016;
the decision to give notice to the German Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 26 January 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present application raises the issue of whether the Regional Court, which convicted the applicant of murdering her husband out of greed, jointly with G.S., had been impartial as required by Article 6 § 1 of the Convention. The Regional Court in the applicant’s case was presided by judge M., who had been judge rapporteur in previous separate criminal proceedings conducted against G.S. alone. In these proceedings, G.S. had been convicted of murdering the applicant’s husband in a judgment which contained numerous references to the applicant, describing her participation in the offence. THE FACTS
2. The applicant was born in 1964 and is currently detained in Frankfurt/Main. She was represented by Mr H.-W. Euler, a lawyer practising in Frankfurt/Main. 3. The Government were represented by one of their Agents, Mr H.‑J. Behrens, of the Federal Ministry of Justice and Consumer Protection. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case: the criminal proceedings against g.s. 5. On 11 July 2011 the Darmstadt Regional Court convicted G.S., the applicant’s partner at the time, of murdering the applicant’s husband (M.M.) and sentenced him to life imprisonment. G.S. was found guilty of having killed the applicant’s husband out of greed as a single perpetrator. The Regional Court was composed of five judges, namely three professional judges, including Judge M. as judge rapporteur, and two lay judges. The applicant had been summoned as a witness in the proceedings, but had refused to testify because she was engaged to G.S. at the time
6. The Regional Court found that G.S., who had denied the offence, had killed the applicant’s husband, who was no longer living with the applicant, in order to prevent him from transferring his assets overseas. This transfer would have removed the assets from the applicant’s reach and would thus also have prevented G.S., as her partner, from benefiting from them. 7. The Regional Court’s judgment against G.S., in its statement of facts, contained extensive findings also regarding the applicant. The court notably elaborated on the joint plan drawn up by “the accused and Salina Meng” that G.S. should kill the applicant’s husband in the latter’s flat after entering under the pretext of picking up medical material ordered by the applicant from a chemist. The Regional Court found, inter alia, as follows:
“... the accused and Salina Meng learnt that, and to what extent, [M.M.] had withdrawn capital from the [...] company and transferred it to his partner. ... They finally realised that they would not receive in a legal manner the financial contributions from [M.M.] which they had hoped for and which they needed for a life free of (financial) worries ... which they dreamt of. They therefore decided to kill [M.M.]. ... “Having been reassured in the plan made jointly with the accused to kill [M.M.] in order to get hold of his assets, Salina Meng then continued preparing the act itself as well as the acquisition of [M.M.]’s assets. ...”
8. In its assessment of the evidence of the commission of the offence the Regional Court found, inter alia, that when informed of M.M.’s death neither the accused nor the applicant had asked about the cause of death and that this conduct
“could easily be explained against the background that neither Salina Meng nor the accused had to ask about the circumstances of the violent death as they had committed the offence themselves or been involved in it.”
9. In its legal classification of the act committed by G.S., the Regional Court considered that the killing of M.M. had to be classified as murder because G.S. had acted out of greed. It explained that greed in that sense was characterised by striving for material goods or advantages with a lack of restraint and showing recklessness which far exceeded what was tolerable. It then found, in particular, as follows:
“In this context, 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 and to cash in the respective profits had to be particularly taken into account.”
10. In September 2012, after G.S.’s conviction had become final, the prosecution contacted G.S.’s sister, asking for her support in persuading G.S. to testify against the applicant. The prosecutor stated that in their judgment, 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. On 1 November 2012 G.S., while denying that he had killed the applicant’s husband himself, then disclosed information regarding the applicant’s hatred of her late husband and alleged that she had paid a third person to kill her husband. THE PROCEEDINGS AT ISSUEThe proceedings before the Darmstadt Regional Court

11. Subsequently, proceedings on murder charges were opened against the applicant before the Darmstadt Regional Court. The applicant was accused of having killed her husband jointly with G.S., out of greed. 12. The court was composed of judge M. (who was previously judge rapporteur in the proceedings against G.S.) as presiding judge, two further professional judges and two lay judges. 13. On 7 October 2013, following a query by the applicant’s lawyer as to whether he had been judge rapporteur in the proceedings against G.S., judge M. submitted the case file to a chamber of the Regional Court for a decision on whether his participation as judge rapporteur in the previous proceedings against G.S. justified his being challenged for bias (Article 30 of the Code of Criminal Procedure, see paragraph 27 below). 14. On 11 October 2013 a panel of three judges of the Regional Court, including the other two professional judges scheduled to sit at the applicant’s trial, found that there were no reasons to doubt the impartiality of judge M. It considered that the description of the applicant’s participation in the offence in the judgment against G.S. had been necessary to establish fully the relevant facts, including the reasons why G.S. might gain financially by the death of the applicant’s husband and had thus killed him out of greed. The court had not expressed any unnecessary or unfounded value judgments regarding the applicant. 15. On 14 October 2013 the applicant, relying on Article 24 § 2 of the Code of Criminal Procedure (see paragraph 26 below), lodged an application for bias against judge M. Quoting a number of passages from the Regional Court’s judgment against G.S. (compare, in particular, paragraphs 7-9 above), she argued that the court, including judge M., had made findings which showed its conviction that the applicant had killed her husband jointly with G.S. and amounted to prejudging the applicant unnecessarily. 16. On 18 October 2013 a different panel of three judges of the Darmstadt Regional Court, having heard judge M. and the applicant, dismissed the application for bias against judge M. The court referred to the Federal Court of Justice’s well-established case-law on the subject-matter (see paragraphs 29-30 below) according to which a judge’s participation in proceedings against co-suspects could only be a sufficient ground for objecting to a judge for bias in the presence of additional circumstances such as unobjective statements, measures or behaviour or prejudicial value judgments. Professional judges were able to form their conviction regarding the charges only on the basis of the results of the evidence taken in the proceedings at issue. The court found that the references to the applicant in the judgment against G.S. did not prove a biased attitude of judge M. Those findings had been necessary to provide a full picture regarding the planning and preparation of, and the motive for the offence, which necessarily had to involve the acts of third persons not accused in the proceedings. 17. On 9 April 2014 the Darmstadt Regional Court, including judge M., convicted the applicant of murder out of greed, committed jointly with G.S., and sentenced her to life imprisonment, following a full fresh trial lasting for 23 days, in which witness and expert evidence was taken. 18. The judgment contained fresh findings of fact, without any references to the judgment against G.S. While establishing essentially the same course of events which had led to the killing of the applicant’s husband as in the previous judgment against G.S., the judgment against the applicant differed in a number of details from the findings of fact in the judgment against G.S. (for instance, regarding the moment when G.S. had entered the applicant’s husband’s flat) following partly new witness testimony (notably of G.S. and his sister) and the applicant’s own submissions. The proceedings before the Federal Court of Justice
19. On 10 February 2016 the Federal Court of Justice dismissed the applicant’s appeal on points of law against the judgment of the Darmstadt Regional Court. It found, in particular, that the applicant’s application for bias against judge M. had been unfounded. The court, referring to its well‑established case-law (compare paragraphs 29-30 below), reiterated that a judge’s participation in previous proceedings against co-accused for the same offence could only raise justified doubts about the judge’s impartiality in the presence of additional specific circumstances. Such circumstances were present where the previous judgment contained unnecessary and unobjective value judgments about the person subsequently charged or where the judge concerned had made unjustified statements to the detriment of that person. 20. The Federal Court of Justice found that the Regional Court’s judgment of 11 July 2011 against G.S. did not contain such unjustified statements or value judgments. In particular, in so far as it was stated in that judgment 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 and to cash in the respective profits had to be particularly taken into account” (see paragraph 9 above), this assessment was consistent with the facts established and the finding that there had been a murder out of greed. 21. The judgment against G.S. further did not contain any other statements or value judgments which could justify doubts as to the impartiality of judge M. The Federal Court of Justice observed that the Regional Court had based its finding that the offence had been committed out of greed on the applicant’s financial dependence on M.M. following the breakdown of their marriage. The Regional Court had further based its conviction that G.S. had killed M.M. on elements of evidence which at the same time disclosed the participation of the applicant in the act. In these circumstances, it was indispensable in order to avoid deficiencies in the presentation of the relevant elements in the judgment to describe the applicant’s participation in the act carried out by G.S. 22. Likewise, the indications in the reasoning of the Regional Court’s judgment against G.S. that it was firmly convinced that the applicant was a co-perpetrator in the offence (“feste bzw. sichere Überzeugung ... von der Mittäterschaft”) did not indicate bias, but had reflected the level of certainty necessary to ground G.S.’s conviction. The proceedings before the Federal Constitutional Court
23. On 6 June 2016 the applicant lodged a constitutional complaint with the Federal Constitutional Court. She claimed that her constitutional rights to have her case decided by her lawful judge and to a fair trial had been breached in that judge M., who had not been impartial, had been on the bench of the Regional Court which convicted her of murder. 24. On 11 July 2016 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1168/16). RELEVANT LEGAL FRAMEWORK AND PRACTICE
Provisions of the Code of Criminal Procedure
25. Article 23 of the Code of Criminal Procedure, on the exclusion of a judge for having participated in a contested decision, in so far as relevant, provides:
“(1)  A judge who was involved in reaching a decision contested by an appeal shall be barred by law from participating in the decision of the court of higher instance. (2)  A judge who was involved in reaching a decision which was contested by an application to reopen the proceedings shall be barred by law from participating in decisions related to the reopening proceedings. ...”
26. Article 24 of the Code of Criminal Procedure on challenging a judge, in so far as relevant, provides:
“(1)  A judge may be challenged both where he is barred by law from exercising judicial office and for fear of bias. (2)  A challenge for fear of bias may be brought where there is reason to doubt the impartiality of a judge. ...”
27. Article 30 of the Code of Criminal Procedure governs, in particular, the report, by a judge himself, of circumstances which potentially justify his being challenged (Selbstanzeige). In so far as relevant, it reads as follows:
“The court competent to decide on a motion for bias shall also decide where no such motion has been filed but a judge reports circumstances which might justify his being challenged ...”
Provisions of the Criminal Code
28. Article 211 of the Criminal Code, on murder, in so far as relevant provides:
“(1)  Whoever commits murder shall be liable to life imprisonment. (2)  A murderer is a person who kills another person ... out of greed or otherwise base motives ...”
Case-law of the Federal Court of Justice
29. According to the Federal Court of Justice’s well-established case‑law, unless a judge is barred by law from sitting in a case in accordance with Article 23 of the Code of Criminal Procedure (see paragraph 25 above) the previous involvement of a judge in proceedings concerning the same subject-matter alone is not a sufficient ground for objecting to the judge for bias. This applies, inter alia, to a judge’s participation in previous proceedings against co-perpetrators of the same offence (see Federal Court of Justice, file no. 1 StR 233/96, judgment of 15 May 1997, §§ 28 and 32-33; file no. 5 StR 485/05, judgment of 29 June 2006, § 20; file no. 2 StR 455/09, judgment of 30 June 2010, §§ 23 and 24, and file no. 1 StR 169/15, decision of 3 December 2015, § 15). Describing the acts of third persons who are judged only subsequently in a previous judgment against a co-perpetrator is usually required in order to give the necessary full account of the events regarding the co-perpetrator (see Federal Court of Justice, file no. 2 StR 653/85, judgment of 5 February 1986, § 5, and file no. 1 StR 233/96, cited above, §§ 33-34). Such a description does not imply that the judge made his/her final decision as to the participation in the offence of third persons who are tried subsequently. It is usual for judges to form their conviction regarding the charges only on the basis of the results of the evidence taken in the proceedings at issue (see Federal Court of Justice, file no. 2 StR 653/85, cited above, § 5, and file  no.  1 StR 233/96, cited above, §§ 32-33). 30. Therefore, fears of bias resulting from a judge’s statements in a previous judgment against a co-perpetrator are only justified if there are additional specific circumstances which justify doubts as to the impartiality of the judge in that they give the impression that the judge has a preconceived view regarding the person charged subsequently. Such circumstances exist where the statements in question contain unnecessary and unobjective value judgments in respect of the person subsequently on trial or where the judge made other unjustified statements to the detriment of the person charged subsequently (see Federal Court of Justice, file no. 5 StR 485/05, cited above, § 20; file no. 2 StR 455/09, cited above, §§ 23-24 and 28, and file no. 1 StR 169/15, cited above, §§ 15-16). THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
31. The applicant complained that the Regional Court which convicted her of murder, with judge M. sitting on the bench, had not been impartial. She relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
Admissibility
32. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant
33. The applicant claimed that she had been convicted by a tribunal which had included judge M. and had therefore not been impartial as required by Article 6 § 1 of the Convention. 34. The applicant argued that in its judgment against G.S. the Regional Court, including judge M., had shown that it had a preconceived view on her guilt. She had been referred to numerous times in that judgment, with her full name and not by reference to her status as a witness in these proceedings. These references (see, in particular, paragraphs 7-9 above) had not been limited to a neutral and factual account of the circumstances leading to the conviction of G.S. She had been described at length as G.S.’s accomplice, without any reservations resulting from the fact that, at that time, she had not been charged with murder. 35. The applicant stressed that, in the judgment against G.S., the Regional Court had presented the findings concerning her guilt as definitive, without stating that the description of the facts concerned her presumed role in the offence or a suspicion against her. However, in those proceedings, the court only had to be convinced that the accused, G.S., who had been charged as a perpetrator acting alone, was guilty of murder. In the applicant’s view, the Regional Court had deliberately formulated its conviction of the applicant’s participation in a clear manner in order to signal to the prosecution authorities that it should charge her with murder. The prosecution itself had subsequently confirmed that the Regional Court had clearly expressed its view in that judgment that the applicant had participated in the offence. 36. The applicant further submitted that in the subsequent proceedings against her, judge M. had not put into perspective or clarified the references to her in the judgment against G.S. and thus had not addressed her reasons to doubt his impartiality in any way. She argued that the fact that the Regional Court, in the proceedings against her, had taken witness and expert evidence again and had not referred to the Regional Court’s judgment against G.S., had simply been done in order to conduct the proceedings in line with the Code of Criminal Procedure and could not be interpreted as proof of judge M.’s impartiality. (b)   The Government
37. In the Government’s view, there had been no violation of Article 6 § 1 as a result of the participation of judge M. in the trial against the applicant. 38. The Government submitted that German law contained sufficient provisions and procedures to secure the impartiality of judges. In particular, under Article 24 of the Code of Criminal Procedure (see paragraph 26 above), a challenge for fear of bias may be brought where – from the perspective of a reasonable accused – there is reason to doubt the impartiality of a judge. 39. In the present case, there was nothing to indicate that judge M. had been subjectively biased against the applicant. Moreover, there were no objectively justified doubts about judge M.’s impartiality in the circumstances of the case. The references to the applicant in the judgment against G.S. did not alter this finding. It had been indispensable for the Regional Court in these proceedings to make findings regarding the underlying facts in full, including the role and conduct of third persons such as the applicant, in order to be able to assess G.S.’s contribution to the offence, and his motives therefor, comprehensively. These findings manifestly did not entail any finding of guilt regarding the applicant. The latter had availed herself of her right not to testify in the proceedings against G.S. Consequently, her credibility did not have to be assessed in these proceedings. 40. Furthermore, judge M.’s impartiality had been demonstrated in the criminal proceedings against the applicant. The Government stressed that the fact that judge M. had himself submitted the case file to a chamber of the Regional Court for a decision on whether his participation as judge rapporteur in the previous proceedings against G.S. justified his being challenged for bias under Article 30 of the Code of Criminal Procedure (see paragraph 27 above) did not amount to a self-recusal. Following the query by the applicant’s lawyer concerning his participation in the proceedings against G.S., he had been obliged to report these facts, but this did not mean that he had considered himself biased. 41. At the trial against the applicant, the Regional Court, with judge M. presiding, had taken fresh witness and expert evidence, including new evidence such as the testimony of G.S. and his sister. It had then proceeded to a completely new establishment of the facts, without any reference to the Regional Court’s previous judgment in the proceedings against G.S. This had indeed resulted in different findings of fact in respect of a number of details.

Outcome for Article 6: violation