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Marcus Brauer v. Germany

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In Marcus Brauer v. Germany, the European Court of Human Rights held Germany in violation of article 6 ECHR (right to a fair trial)

Facts

The applicant had damaged numerous cars in a parking lot with a hammer and had been confined to a psychiatric hospital pending trial. In the trial, the regional court came to the conclusion that the applicant could not be held criminally responsible for his actions and ordered his confinement in a psychiatric hospital. When confronted with the judgment, the applicant became very agitated. He stated that he did not want to be represented by his ex-officio lawyer anymore and that he wanted to appeal the judgment.

The presiding judge informed the applicant that he could not file an appeal on the spot. He also informed him how and within which time limit he could submit an appeal.

The applicant was taken to a psychiatric hospital, where he calmed down.

The attorney who had represented the applicant wrote him a letter. He stated that he respected the applicant’s wish not to be represented by him anymore. The attorney added that was aware that the applicant intended to appeal the judgment. He provided advice on the time limit for appeal, on the court with which to file the note of appeal and the form to be respected.

Since the attorney’s letter was drafted in slightly ambiguous language, the applicant sent the note of appeal to the wrong court. This court forwarded it to the competent court, but this court received it after the deadline for appeals had expired.

The applicant, represented by counsel again, requested a reinstatement. According to German law, a person who has missed the deadline for an appeal (or another time-bound action) can be granted a reinstatement, provided the failure to observe the deadline was not attributable to him. If reinstatement is granted, the person can still submit the appeal. The applicant stated that the information provided by his counsel on how to file the appeal had been unclear. Therefore, he was not responsible for submitting it to the wrong court, which had caused the delay and resulted in his missing the deadline. He also submitted he had been too agitated to understand the explanation given by the presiding judge of the regional court when judgement had been given in first instance.

The Federal Court of Justice rejected the applicant’s request for reinstatement. It stated that it did not matter whether the advice provided by counsel on how to file an appeal had been sufficiently clear. At any rate, the explanation by the presiding judge following the judgment at the regional court had been sufficiently clear. Therefore, it was the applicant’s fault that he had missed the deadline.

 

Legal evaluation

The European Court of Human Rights held that this decision violated the applicant’s right to a fair trial.

The Court pointed out that article 6 ECHR enshrined the right to access to a court. That right was not granted absolutely; restrictions such as deadlines, formal requirements for filings or court fees were in principle permissible. However, they had to serve a legitimate aim, to be proportionate and must not touch upon the essence of the right of access to a court.

The European Court of Human Rights found that the German Federal Court of Justice had restricted the applicant’s right of access to a court more than permissible under the Convention when denying the motion for reinstatement.

It pointed out that the applicant, who had already been confined to a psychiatric hospital at the time of the judgement of the regional court, had been in a particularly vulnerable position. The Court also underscored that the Federal Court of Justice had been aware that the applicant had been in a state of distress when the presiding judge had advised him on the way to file an appeal.

The Court also considered important that the applicant’s defence lawyer had informed the applicant that the respected his wish not to represent him anymore, although ex-officio lawyers can only be released from their duties by judicial decision.

In view of these factors, the applicant’s responsibility for missing the deadline had been reduced and it had not been justified to deny him access to a second instance.

Contribution to a briefing paper on ‘Ukraine’s legal debate on a right to armed self-defence’

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Holger Hembach contributed as an international expert to a briefing paper on ‘Ukraine’s legal debate on a right to armed self-defence’. During the discussion about the new constitution of Ukraine, a group of citizens filed a petition to entrench a right to bear fire arms in the constitution. Democracy Reporting International, a Berlin based NGO, commissioned and published a briefing paper which is to provide information on European practices in regard to the right to possess weapons and on legal aspects of the issue.

Allegation of guilt in the reasoning of a judgment despite acquittal – Cleve v. Germany

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In Cleve v Germany, the   European Court of Human Rights has elaborated on the scope of the presumption of innocence. It clarified that article 6 para 2 does not only apply to the operative part of a judgment – to the decision whether or not the defendant is found guilty – but also to its reasoning.

Facts:

The applicant was the father of a daughter. After he had split with his wife, his former spouse laid  information with the police that the applicant had sexually abused his daughter immediately. The daughter was questioned by police and a psychological expert was commissioned to assess the credibility of her statements.

The applicant was charged with sexual abuse of children and sexual abuse of persons entrusted to him for upbringing. After five hearings, the Regional Court Muenster acquitted him of all charges. In the reasoning, the Court pointed out that the applicant had denied the charges and had only been incriminated by his daughter. However, the Court had not found her testimony credible to a degree sufficient to justify a conviction. When outlining the reasons leading it to this conclusion, the Regional Court Muenster stated:

“… To sum up, the Chamber does not discern any signs of suggestive influence.

Therefore, the Chamber assumes, in sum, that the core events described by the witness have a factual basis, that is, that the accused actually carried out sexual assaults on his daughter in his car. Nevertheless, the acts could not be substantiated, in terms of either their intensity or their time frame, in a manner that would suffice to secure a conviction. The inconsistencies in the witness’s testimony were so marked that it was impossible to establish precise facts.”

The judgment became final. The applicant filed a constitutional complaint to the Federal Court of Constitution in which he claimed that the reasoning of the judgment violated the presumption of innocence, because it stated that he had carried out sexual assaults on his daughter. The Constitutional Court declared the complaint inadmissible and the applicant lodged an application with the European Court of Human Rights.

Law:

The Court examined whether the reasoning of the judgement constituted a breach of the presumption of innocence entrenched in article 6 para 2 ECHR, which reads as follows:

‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’

The German Government argued that the presumption of innocence did not apply to the reasoning of a judgment. It contended that article 6 para 2 only required that a defendant be acquitted if not proved guilty beyond reasonable doubt – which was exactly what the German court had done. The presumption of innocence did not impose any boundaries on a municipal court when providing reasons for the acquitting judgment.

The European Court of Human Rights rejected this argument. It pointed out that article 6 para 2 generally prohibited all agents of the state to treat someone as guilty before being convicted. While this became relevant before the judgment in most cases, there was no reason to exempt the judgment as such. Therefore, the presumption of innocence applied in principle to the reasoning of a judgment.

The Court stated that it hinged on the language employed in a given case whether the reasoning of a judgment violated the presumption of innocence. It conceded that a court had the right to address remaining suspicions or express doubts in the reasoning of a judgment. However, it was not allowed to state that a defendant, who was acquitted, had committed a criminal offence. The German court had done exactly that. It had stated that the applicant had sexually assaulted his daughter.  Therefore it found that the presumption of innocence had been violated.

The European Court of Human Rights pointed to the possible repercussions of this statement, for example for proceedings regarding legal custody or civil actions for compensations.

The German version of this post can be found here

 

 

 

Kafala and adoption in light of article 8 ECHR – Chbihi Louboudi and others v. Belgium

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In Chbihi Louboudi and others v. Belgium, the European Court of Human Rights has dealt with the recognition of a ‘kafala’, a traditional Islamic form of adoption, in light of article 8 ECHR.  It has held that the right to respect for family life does not require signatory states to grant an adoption if a child has been placed in the custody of other persons by a ‘kafala’.

Facts:

Three applicants had submitted applications to the European Court of Human Rights. One of them was a girl from Morocco, the others were her Uncle and his spouse. The girl’s parents had agreed with the second and the third applicant that they would take care of the girl and raise her like their own child in Belgium. The agreement had been drawn up in form a ‘kafala’, a traditional form of adoption under Islamic law.

The first applicant had traveled to Belgium and had started living with the second and the third applicant. The second and the third applicant sought to adopt her; however, their request was rejected in two sets of proceedings by final judgments.

The third applicant only had a temporary permit to stay in Belgium, which was extended on a regular basis. For fear not be able to return to Belgium, she had not participated in two school trip abroad; she had also suffered from anxiety on account of her precarious situation and had felt embarrassed towards her classmates and friends.

Law:

The applicants claimed that by refusing to grant the adoption Belgium had violated its violations under the ‘right to respect for family life’ limb of article 8 ECHR. In addition to that, the third applicant – the girl – submitted that Belgium’s failing to provide her a permanent permit to stay constituted a violation of her right to private life under article 8 ECHR.

The Court stated that the case fell within the scope of article 8 ECHR. It reiterated its long standing jurisprudence to the effect that family life did not require the existence of biological parent-child relationships. Whether persons entertained family life had to be assessed on the basis of emotional and social ties between them. Belgium had contended that the situation of the applicants had to be treated differently, because the third applicant still maintained contact and close relationships with her biological parents. The Court rejected this argument.

It turned to the question whether Belgium had been under a positive obligation stemming from article 8 ECHR to grant the desired adoption. The Court pointed out that a ‘kafala’ was not recognized by Moroccan law; it also stated that the refusal of the adoption had not prevented the applicants from maintaining their family life, so that it was hard to see why it would constitute a violation of the right to family life. Therefore, the European Court of Human Rights found that there had been no violation of article 8 ECHR in its ‘family life’ limb.

With regard to the complaint that the failure to grant her a permanent permit to stay violated the third applicant in her right to private life, the Court stated that it could see that the situation in which the applicant found herself was distressful. However, it pointed to its long-standing jurisdiction that article 8 ECHR did not confer a right to stay in a certain country or to obtain a permission to stay in a country of one’s choosing. For this reason, the Court held that there had been no violation of the right to private life either.

 

Legal provisions regarding child birth in light of article 8 ECHR – Dubska and Krejova v. Czech Republic

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In Dubska and Krejova v. Czech Republic, the European Court of Human Rights has dealt with the implications of article 8 ECHR for the legal framework governing medical assistance during births and home births. It held that legal provisions which made it nearly impossible for women to give birth at home did not infringe the right to private life.

Facts:

The Court had joined two applications. The first one had been submitted by a mother of two, who in essence complained that Czech laws had made it impossible for her to give birth to a child at home. The applicant had given birth to her first child without any complications. Following the birth, medical personnel in the hospital had urged her to undergo medical treatment she considered unnecessary. Also, she had spent more time separated from her child than she wanted to and was not released from the hospital as early as she desired. Due to these difficulties, she decided to give birth at home when she was pregnant with her second child. However, she was unable to find any midwife willing to assist her; her health insurance informed her that assistance during a home birth would not be covered. The applicant gave birth to her child at home without any professional assistance.

The second applicant had already given birth to two children at home with the assistance of midwives. The midwives had worked without any authorization from the state. When the applicant was pregnant with her third child, she decided to deliver at home again. However, she was unable to find a midwife willing to assist her because of the heavy fines which could be imposed on persons providing medical assistance without authorization.

In the Czech Republic, only a very small number of women give birth at home. The Medical Chamber regards home births as risky and considers them not in line with professional standards. Recommendations issued by the Ministry of Health state that newborns should, as a rule, not be released from hospital sooner than 72 hours after birth. According to statistics, the Czech Republic is among the countries with the lowest mortality rate in Europe.

Law:

The applicants complained that the legal framework in Czech Republic prevented them from giving birth at home, which amounted to a violation of their right to private life under article 8 ECHR.

The European Court of Human Rights pointed out that the issue fell within the scope of article 8 ECHR. It clarified that the question at hand was not whether the right to private life embraced a right to give birth at home, but rather whether it encompassed a woman’s right to decide herself on the circumstances and way in which she wanted to give birth. The Court reiterated its jurisprudence that private life is a broad concept which covers personal autonomy. It stated that giving birth had implications for the mother’s physical and psychological integrity and constituted a very intimate aspect of her private life. Thus, legal provisions to the effect that the applicants could not give birth at home constituted an interference with their right to private life.

The European Court of Human Rights went on to examine whether this interference was justified pursuant to article 8 para 2 ECHR. It found that the legal provisions which stated that medical assistance could only be provided by persons with the appropriate license and in possession of the necessary equipment were a sufficient legal basis. It also accepted that they served a legitimate aim, namely the protection of the health and life of mother and children during and after birth.

The European Court of Human Rights then turned to the question whether the interference was necessary in a democratic society. It pointed out that there was no consensus among Council of Europe member states on questions of home birth and health care during and after delivery. Also, regulation in this field required a lot of scientific data and expert advice. Since member states were best placed to obtain these, they enjoyed a wide margin of appreciation in this area. It stated that legislation on health care related to births had to respect the rights of the mother while being mindful of the interests of the newborn children as well. The Court found that the Czech authorities had duly balanced the competing interests at stake and come to conclusions which were within the state’s margin of appreciation. Accordingly, the European Court of Human Rights did not find a violation of article 8 ECHR.