Prof. Dr. Dr. h.c. Hans-Heiner Kühne
University of Trier
Visting Professor
Westminister University, London
and Kültür Universitesi, Istanbul

Expertise on the SRF Case

I          The German Perspective

The cassational Supreme Court of Appeals in Germany can be the High Court (Oberlandesgericht, OLG) or the Supreme Court (Bundesgerichtshof, BGH). According to the German legal system it is the BGH which decides with definite authority over any questions of cassational appeals, the OLG’s basically have to respect that, as the BGH has to guaranty the unity of jurisdiction.¹

The BGH has no right to take or to assess evidence, it is only about law. However, according to a jurisdiction being founded early in the 20th century by the then Reichsgericht (RG), mistakes in fact finding of the trial court may be criticised under limited conditions: Only if the trial court has violated basic scientific laws or the central rules of logic, the BGH/OLG may criticise that and has to give reasons why and by which argumentation such a violation has occurred. As a consequence, the BGH has to resend the case to the trial court which then has to reassess the case under consideration of the opinion of the BGH, hence, without any further violation of these laws and rules.

There have been tendencies with the BGH to get deeper into the fact finding process of the trial courts. This has been drastically repudiated by the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG)². The BVerfG maintained that the BGH by such an assumption had violated the constitutional guaranty of the lawful judge as laid down in Art. 101 I 1 Grundgesetz (German Constitution).

The guaranty of the lawful judge/court is to be found additionally in Art. 6 § 1 ECHR when the convention refers to a “tribunal established by law”³. Although the ECourtHR has not yet developed an extensive jurisdiction with regard to this detail, the decision Posokhov vs. Russia⁴ makes it very clear that this guaranty contains the necessity of a tribunal the composition and competence of which has to be defined by law in advance. Any judicial activities going beyond these limits have to be regarded as a violation of the first sentence of Art.6 §1 ECHR. Hence, any assessment of facts by a cassational tribunal which is by domestic law restricted to checking legal issues will not only be a violation of domestic law but does amount to an infraction of the ECHR at the same time.

In Germany the BGH may audit the decisions of trial courts in an oral proceedings, § 351 GStPO⁵. Yet, in practice in less than 5% of all cases the defendant and the defence lawyer will appear. As it is just about legal questions, the BGH as well as the OLG’s normally will decide on the basis of the written statements, which turns this trial in reality more into the form of written proceedings.

The BGH/OLG can only decide within the boundaries of the appeal issued by the defendant and/or the prosecutor’s. This means that the court may only elaborate on those questions which have been raised by the appellants, § 352 GStPO.

There is, however, the possibility to apply for a general review of substantial law, § 344 II 1 GStPO. Only in such a case the court will be free to take up any of the substantial law questions. In reality, however, such an application will be dismissed by the simple sentence “ The court does not see any violation of substantive law”. This is because cassational courts in Germany, as a rule, refuse to go into general and unspecific inspections of trial court sentences⁶.

As regards the claim of a violation of procedural law, this must always be defined in a very concrete way, § 344 II 2 GStPO. No general review so far can be applied for. Accordingly, the court may only decide within the limits of the questions raised in the appeal.

The cassational court decides by sentence. If the appeal has been successful, the court will transfer the case back to the trial court. The trial court has to redo the case by applying the legal opinions of the cassational court, §§ 354 II, III; 358 GStPO. So far, the independence of the trial court is limited.

If the divergent interpretation of law from the side of the cassational court leads to just a single consequence for the sentence without the necessity of applying legal or factual discretion⁷– be it in favour or in disadvantage of the appellant – the BGH/OLG may change the verdict accordingly, instead of sending it back to the trial court, § 354 I GStPO.

In exceptional cases the BGH/OLG may decide by resolution without main trial. This, for sure, applies for inadmissibility of the appeal, § 349 I GStPO. The same holds true for by formal request of the prosecutor’s the court unanimously maintains the appeal to be unfounded, § 349 II GStPO. The appellant, however, must be heard prior to that decision, § 349 III GStPO.

II         The Perspective of other European Countries

We find very similar provisions to the German ones in the procedural codes of roman law countries like France, Italy and Spain.

In France cassation is arranged by Arts. 567 following CPP (Code Procédure Pénal). The cassational court, the cour de cassation, chamber criminelle, is limited to decide on legal issues, and may only refer to problems being raised by the appelants⁸.

In Italy it is for the corte di cassazione to decide as a final remedy upon decisions of trial courts, Arts. 606 following CPP (Codice Procedura Penale). The Italian law is, in comparison with German and French law, less meticulously regulated by provisions for cassation, but still, the cassational court may only decide on questions raised by the appellants⁹. Possible reasons for appeal are enumerated in Art. 606 CCP.

In Spain, again, the cassational court which is the Tribunal Supremo can only decide on legal issues. Very much alike the German situation, the Tribual Supremo may, however, challenge a mistaken argumentation presenting the taking and assessment of evidence, Art. 851 I LeCrim (Ley de Enjuiciamento Criminal). Even so, the Tribunal Supremo can by doing so not substitute the process of taking and assessing evidence, it can only criticise and send back to the trial court. For sure, the Tribunal Supremo’s decision is limited by the requests raised by the appelants¹⁰.

In Austria the system is a little bit different. The Supreme Court, Oberster Gerichtshof, has a twofold competence. The Court may act as a second instance court for decisions of the High Court as trial court, Oberlandesgericht if not only factual questions but also legal questions being defined as nullity appeal (Nichtigkeitsbeschwerde) are challenged. In these cases the Court acts and decides in a kind of mixed decision between second instance trial court and cassational court. This means that under these special circumstances the Court has the right and the duty to decide on factual as well as legal questions.

The Oberste Gerichtshof is acting within its second competence, however, as a pure cassational court if solely a nullity appeal (Nichtigkeitsbeschwerde) is being brought in against any of the trial courts. Although the possible reasons for such an appeal for nullity are broader than they are under German law, any of the nullity challenges are mere legal questions and do restrict the Court to a purely legal argumentation. Besides, as in all other countries mentioned, the Court can only decide within the limits of the questions being raised by the appeal.

III       The Perspective of the European Convention of Human Rights (ECHR)

There is an extensive jurisdiction of the ECourtHR with regard to assessing evidence. The Court so far refers to Art. 6 §1 (fair trial) as well as to Art. 6 §2 (presumption of innocence).

These findings do have relevance with regard to the decision of the Turkish Supreme Court of Appeals.

Although the ECourtHR does not take or assess evidence on its own, nor does it replace such activities of domestic courts¹¹, the Court has given some clear ideas on the minimum standards of taking and assessing evidence.

First of all the process of taking evidence can only be executed in an oral and public hearing¹². Hence, new assessments of facts at the level of a cassational court, if ever they may be permitted by domestic law, need an oral hearing with all the safeguards of a fact finding court proceeding. The Turkish Supreme Court of Appeals has, indeed, reassessed the facts of the trial court by coming to an opposite result. This has been done in a mere written proceeding without giving on opportunity to the parties to participate and to contribute to the decision finding. This constitutes a violation of the fair trial principle, Art. 6 § 1 ECHR (principle of orality) as well as Art. 6 § 3 (d) ECHR ( exclusion of the defence).

This is supported by the Court’s jurisdiction as to the right of confrontation. According to that witness evidence may only be used as a central base for a sentence, if the defendant and/or his defence council have had the opportunity of directly meeting the witness and challenging his/her credibility and reliability¹³. In a written proceeding in which the court assesses such evidence in a “lonely” decision, as it has been the case with the decision of the Turkish Supreme Court of Appeals, witness evidence is being used without confrontation which constitutes an infraction fair trial and right to defence.

Furthermore the Court does maintain that any presumption of facts or of law is in violation of Art. 6 §2 (presumption of innocence)¹⁴. The decision of the Supreme Court of Appeals has been issued on the basis of a presumption of facts contrary to the Convention.