FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 24376/02
by Afrim SPAHIU
against Germany
The European Court of Human Rights (Fifth Section), sitting on 7 December 2010 as a Chamber composed of:
	Peer Lorenzen, President,
	Renate Jaeger,
	Rait Maruste,
	Isabelle Berro-Lefèvre,
	Mirjana Lazarova Trajkovska,
	Zdravka Kalaydjieva,
	Ganna Yudkivska, judges,
 and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 24 June 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the Court’s decision to examine jointly the admissibility and merits of the case (Article 29 § 1 of the Convention),
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Afrim Spahiu, was born in 1966 in Terstenik, Kosovo, and lives in Arnsberg. He is represented before the Court by Mr M. Reuther, a lawyer practising in Arnsberg. The respondent Government are represented by Mrs A. Wittling-Vogel, Ministerialdirigentin, Federal Ministry of Justice.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Criminal proceedings against the co-accused
On 1 October 1998 the Dortmund Regional Court opened a trial against the applicant and others, as members of a joint criminal enterprise, on charges of having induced a number of people to lodge falsified asylum applications in twenty-nine cases. After a dispute as to jurisdiction between the Regional Court and the Court of Appeal, on 17 March 1999 the Federal Court of Justice ordered the Dortmund Regional Court to carry on with the proceedings.
On 20 November 2000 the Dortmund Regional Court, the Grand Criminal Division (Große Strafkammer) sitting as a Jury Court (Schwurgericht) and presided over by Judge F., who had been appointed to the Dortmund Regional Court a year earlier, convicted S.-S. and R, two German co-accused of the applicant, of having helped people in ten cases to lodge falsified asylum applications, S.-S. as a member of a joint criminal enterprise comprising, notably, the applicant. The proceedings against the co-accused had been severed after they had confessed to the offences. 
The applicant, who had been summoned as a witness in these proceedings, had refused to give evidence. The judgment contained references to the applicant’s role in the offences. The main passages in this respect read as follows:
“Spahiu had the idea of helping asylum seekers, against payment of a considerable fee, to increase their prospects of success by submitting false statements. ... Spahiu had told the accused, S.-S., about a secret organisation called ‘the Anti-Serbian Movement’ (‘the ASM’), founded in Kosovo, but also active in Germany and other European countries. According to Spahiu, he was a high-ranking member of this organisation. ... The accused, S.-S., did not doubt the truth of Spahiu’s story and assumed that the ASM actually existed ... The chamber did not investigate whether the ASM really existed or whether it was just a sham organisation. According to Spahiu, the prospects of success of an application for asylum could be increased if the applicant referred to his or her membership of the ASM, as well as to the holding of senior office within it. ... According to Spahiu’s plan, membership certificates, as well as documentation regarding the holding of senior office, should be submitted in the asylum proceedings by the accused, R., on stationery seemingly from the ASM and signed by him [Spahiu], H., who is also being prosecuted, and the accused, S.-S. ... According to Spahiu’s plan, the applicants would pay fees of up to 20,000 German marks for such assistance in the asylum proceedings. ... First of all, a counselling interview was arranged with each applicant. During this interview, in which Spahiu and S., and, in some cases, the accused, S.-S., took part, the applicant seeking help was informed about the requirements of a successful application for asylum. ... In all the cases which are the subject of the verdict, Spahiu, S. and the accused, S.-S., invented posts in senior positions within the ASM which were allegedly held by the asylum seekers. In order to prove the alleged position of the applicants to the administrative authority or the administrative court Spahiu, using a computer, developed a standard form. ... 
This statement was then stamped ‘Anti-Serbian Movement’. This stamp had been designed by Spahiu, who had also had it made. The statements were usually signed by Spahiu. ... Furthermore, Spahiu created another statement [donation receipt]. ... 
This statement was signed either by the accused, S.-S., as secretary general or, once S.‑ S. no longer held this position, by Afrim Spahiu as secretary general and by H., who is also being prosecuted ... In 1996, at the request of Afrim Spahiu, the accused, R, agreed to handle the applications of the members of the ASM. ... When further enquiries needed to be made, the accused, R., contacted Spahiu and S. rather than the asylum seekers.”
In the subsequent summaries of the different cases of falsified asylum applications the applicant was generally referred to as “the separately prosecuted” (der gesondert Verfolgte). Regarding the criminal liability of the accused S.-S. the Regional Court found that she had acted as a member of a joint criminal enterprise and had conspired with the separately prosecuted Afrim Spahiu and M.S. to commit such crimes in the future. Regarding the sentence of S.-S. the trial court took into consideration, inter alia, that together with the other members of the joint criminal enterprise she had “taken advantage of the vulnerable situation of the asylum seekers”.
The judgment did not include an assessment of evidence because it had become final and could therefore be abridged by virtue of Article 267 § 4 of the Criminal Code of Procedure (see “B. Relevant domestic law” below). From the circumstances, which were found to be decisive in assessing the penalty, it follows, however, that both co-accused had confessed to the offences with which they had been charged.
2. Criminal proceedings against the applicant
On 22 March 2001 the trial against the applicant continued before a Grand Criminal Division sitting as a Jury Court and Judge F. presiding. Throughout the proceedings, the applicant lodged numerous applications for the removal of F. and other judges of the Dortmund Regional Court from sitting in the case on grounds of bias: between May and October 2000 he submitted thirteen such applications. Inter alia, on 22 January 2001 he alleged that F. had already determined the extent of the applicant’s involvement in the offence (Vorwegentscheidung) with the judgment against the co-accused so as to be able to convict him more easily. The Criminal Division, including F., dismissed the application on 25 January 2001 as inadmissible, finding that it contained no evidence of bias. In his application dated 17 May 2001 the applicant challenged Judge F., inter alia, because he had participated in the proceedings against the two co-accused. On 21 May 2001 this application was dismissed as having been lodged late (verspätet).
On 17 January 2002 the Regional Court convicted the applicant of participating in a joint criminal enterprise to induce asylum seekers to lodge falsified asylum applications in thirteen cases and sentenced him to five years’ imprisonment. Six of these cases had also led to the conviction of the co-accused. The applicant’s conviction was based, in particular, on the testimony of the former co-accused S.-S., the witness statements of the individual asylum seekers and relevant documents. The applicant had exercised his right not to testify. The judgment comprised 99 pages and contained a detailed assessment of the evidence before the court, in particular also regarding the credibility of S.-S’s statements. As regards the description of the circumstances of the offence, the statement of facts contained similar and partly identical wording to the statement of facts in the judgment against the co-accused.
The applicant lodged an appeal on points of law with the Federal Court of Justice in which he submitted, inter alia, that F. should have been excluded from sitting in the case by operation of law, namely by application of Article 23 of the Code of Criminal Procedure (see “B. Relevant domestic law” below) mutatis mutandis, since he had sat on the bench trying the case against the co-accused. In its reply the Federal Prosecutor General’s office pointed out that Article 23 of the Code of Criminal Procedure could not be applied mutatis mutandis in this situation. On 3 April 2003 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill‑ founded.
3. The applicant’s constitutional complaint
In the constitutional complaint dated 16 July 2003 the applicant’s lawyer gave an account of the preliminary investigation proceedings and the trial against his client. Regarding the merits he firstly maintained that the criminal provisions the conviction was based on were unconstitutional. He further alleged that F. had been appointed to the Dortmund Regional Court specifically for the trial against the applicant. Also, after having presided over the trial of the co-accused F. should have been excluded from the applicant’s trial by operation of law. It was further submitted that F. had lacked the necessary impartiality. At the trial against the co-accused, which was linked to the applicant’s trial, F. had determined the extent of the applicant’s participation in the offences. Because the two proceedings dealt with the same offences and the same offenders the applicant alleged that F. could not view him with the necessary neutrality, objectivity and distance. He finally submitted that
“a realistic examination of the procedural provisions concerning exclusion of judges ipso jure, taking into consideration the values of the Basic Law and established knowledge in the area of psychology, leads to the conclusion that it is no longer appropriate that the Criminal Code of Procedure assumes that an issue of bias will not generally arise if a trial judge has previously participated in a decision related to the proceedings at hand.”
The applicant submitted that F.’s bias was evidenced in particular by the dismissal of all of his applications for the removal of judges from sitting in the case as inadmissible.
On 24 October 2003 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint. It held that the applicant had not sufficiently substantiated the complaint that F. should have been legally barred from adjudicating on his case because he had been involved in criminal proceedings directly related to it. By claiming that F. had participated in the proceedings against him contrary to Article 23 § 2 of the Code of Criminal Procedure (see “B. Relevant domestic law” below) he had simply reiterated the submissions he had made before the Federal Court of Justice. The Federal Constitutional Court further reasoned:
“... the applicant failed to demonstrate that the decision not to consider the presiding judge to be legally barred from sitting in his case – thus applying a narrow interpretation of Article 23 of the Code of Criminal Procedure – had been arbitrary, i.e. based on an interpretation and application of Article 23 of the Code of Criminal Procedure which was not legally arguable under any aspect of the provision.”
On 24 November 2004 the second set of proceedings (opened in April 2002 before the Regional Court) against the applicant for having induced a number of people to lodge falsified asylum applications in thirteen more cases were provisionally stayed in accordance with Article 154 of the Code of Criminal Procedure (see “B. Relevant domestic law” below) in view of the prior conviction of the applicant.
4. Detention proceedings
From 12 November 1997 to 26 April 1999, when the arrest warrant was quashed and the applicant released, the applicant was placed in pre-trial detention for the first time on suspicion of having committed the asylum‑ related offences with which he had been charged in the first set of proceedings. On 4 February 2000 the Federal Constitutional Court found that the applicant’s prolonged detention, as ordered by the Federal Court of Justice on 17 February 1999, had violated his right to liberty.
On 19 April 2001 the Regional Court, having consulted three doctors, ordered the applicant’s second arrest and detention, finding that he had intentionally rendered himself unfit to plead by taking an overdose of analgesics. On 18 October 2001 the Hamm Court of Appeal quashed the arrest warrant and the applicant was released. The Hamm Court of Appeal found that the applicant’s right to liberty, having regard to the overall length of his detention, now prevailed over the State’s interest in securing the proper continuation of the proceedings. On 13 December 2001 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant.
On 14 January 2002 – by which date the applicant had still not appeared for trial – the Regional Court ordered the applicant’s arrest on the ground that he might attempt to flee and confirmed this arrest warrant when delivering a judgment on 17 January 2002. On 21 March 2002 the Court of Appeal quashed the arrest warrant.
On 15 January 2002 the Dortmund District Court issued an arrest warrant in respect of the other offences with which the applicant had been charged in the second set of proceedings. It argued that he was likely to flee if released owing to the considerable sentence he risked being given if convicted and considering that he had already tried to evade trial by deliberately rendering himself unfit to plead and by fleeing to Albania.
On 16 March 2002 the applicant was arrested when re-entering Germany and detained for a third time.
On 18 April 2002, endorsing the reasons given by the District Court, the Court of Appeal upheld the arrest warrant of 15 January 2002. On 2 May and 12 June 2002 the Federal Constitutional Court declined to consider constitutional complaints lodged by the applicant in this regard.
On 25 September 2002 the Regional Court quashed the arrest warrant of 15 January 2002.
B.	Relevant domestic law
1.  Relevant provisions of the German Code of Criminal Procedure
Article 23
“(1)  A judge who has participated in a decision which has been contested on appeal shall be barred by law from participating in the decision of a higher level of jurisdiction.
(2)  A judge who has participated in a decision contested by an application for reopening of the proceedings shall be barred by law from participating in decisions in the proceedings to reopen the case. If the contested decision has been given at a higher level of jurisdiction, a judge who has participated in an original decision at a lower level shall be barred. The first and second sentences shall apply mutatis mutandis to the participation in decisions to prepare the reopening of the proceedings.”
Article 24
“(1)  A judge may be challenged both where he is barred by law from exercising judicial office and on grounds of bias.
(2)  A challenge on grounds of bias shall be justified if there is reason to doubt the impartiality of a judge. ...”
Article 26a
“(1)  A challenge to a judge shall be rejected by the court as being inadmissible if:
1. the challenge is not made in time;
2. there is no disclosure of the ground for the challenge or of the means by which the challenge could be substantiated ...
(2)  The court shall give its decision rejecting the challenge pursuant to paragraph 1 without the judge in question being excluded from the bench. ...”
Article 154
“...
(2)  Once proceedings have been instituted, the court may provisionally stay them at any stage at the request of the Public Prosecutor’s Office.
...
(4)  If the proceedings have been provisionally terminated on account of a penalty or measure of reform and prevention which is to be expected for another offence, the proceedings may be resumed, unless barred by limitation in the meantime, within three months after the judgment imposed for the other offence has entered into force.
(5)  If the court has provisionally terminated the proceedings, a court order is required for their resumption.”
Article 267
“...
(4)  If all parties entitled to lodge an appeal waive their right of appeal or if no appeal is lodged within a certain time-limit, the proven facts establishing the statutory elements of the criminal offence and the criminal provision applied must be indicated; ... The further content of the reasons for the judgment shall be determined by the court taking into consideration - at its discretion - the circumstances of the individual case. ...”
2.  Relevant provision of the Courts Constitution Act (Gerichtsverfassungsgesetz)
Section 76
“(1)  The criminal divisions shall be composed of three judges, including the presiding judge, and two lay judges (grand criminal divisions) ...
(2)  At the opening of the main proceedings, the grand criminal division shall rule that it will be composed of two judges, including the presiding judge, and two lay judges during the main hearing unless a criminal division in the composition of three judges and two lay judges (Schwurgericht) has jurisdiction or the participation of a third judge appears necessary due to the scale or complexity of the case ...”
3.  Relevant provision of the German Basic Law (Grundgesetz)
Article 101, § 1, second sentence, of the German Basic Law provides that no one shall be deprived of his right to a decision rendered by a legally competent judge (gesetzlicher Richter). In its case-law, the Federal Constitutional Court has consistently dealt with the issue of whether a judge must be excluded for suspicion of bias in the framework of the right to a decision rendered by a legally competent judge.
4.  Relevant provisions of the Rules of Procedure of the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz)
Section 23 § 1
“Applications for the institution of proceedings must be submitted in writing to the Federal Constitutional Court. The reasons must be stated; and the requisite evidence must be specified.”
Section 92
“The reasons for the complaint shall specify the allegedly violated right and the act or omission of the organ or authority by which the complainant claims to have been harmed.”
COMPLAINTS
1.	The applicant complained under Articles 5 and 6 that the presiding Judge F. was biased because he had already considered the applicant as a member of a joint criminal enterprise prior to his conviction, namely, in the judgment against two co-accused.
2.	The applicant further complained under Article 6 that Judge F. had only been appointed to the Dortmund Regional Court to adjudicate on the charges against the applicant and that he had taken numerous erroneous procedural decisions.
3.	The applicant complained under Article 6 about the German courts’ decisions to detain him for a second time, which had been taken without an expert having been heard as to his alleged need to take analgesics.
4.	The applicant also complained under Article 6 § 3 that he had only been granted access to the case file in the parallel proceedings against the co-accused at a late stage.
5.	The applicant further complained under Articles 5 and 6 about his third pre-trial detention. He argued that the decisions to detain him again contradicted the Federal Constitutional Court’s decision of 4 February 2000 and that the length of his detention had been unreasonable.
6.	Invoking Articles 2 and 3, the applicant complained that the German police had tried to kill him twice, and that while in prison he had not received proper medical treatment and his mail had been monitored.
7.	The applicant also invokes Article 14, complaining that he had been treated differently from his two co-accused of German nationality.
THE LAW
1. Alleged violation of the impartiality requirement of Article 6
The applicant complained under Articles 5 and 6 of the Convention that the judge presiding at his trial lacked impartiality because he had previously presided at the trial of his co-accused. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention alone, which provides in as far as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an ... impartial tribunal ...”
The Government contended that the applicant failed to properly exhaust domestic remedies with regard to this complaint, because the Federal Constitutional Court had dismissed the applicant’s constitutional complaint as inadmissible for lack of sufficient substantiation.
The applicant, relying on the Court’s judgment in Schwarzenberger v. Germany (no. 75737/01, § 31, 10 August 2006), contested this argument.
The Court reiterates that, whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it normally requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in the domestic law (see, among many other authorities, Cardot v. France, 19 March 1991, § 34, Series A no. 200).
Turning to the present case, the Court notes that the Federal Constitutional Court considered the constitutional complaint to be inadmissible for lack of compliance with the substantiation requirement. In particular that court found that the applicant merely reiterated the submissions he had made before the Federal Court of Justice, instead of demonstrating that the decision not to consider the presiding judge to be legally barred from sitting in his case had been arbitrary, namely, that it was based on an interpretation and application of Article 23 of the Code of Criminal Procedure which was not arguable under any aspect of the provision. Applying the above principles to the instant case the complaint is thus inadmissible for lack of proper exhaustion of domestic remedies.
On the other hand, the Court is aware that in the case of Schwarzenberger (cited above, § 30) it held that irrespective of the Federal Constitutional Court finding that the constitutional complaint was inadmissible, for the purposes of Article 35 § 1 of the Convention it was sufficient that in his constitutional complaint the applicant had given a complete account of the proceedings before the lower courts and alleged a violation of his right to a fair trial by impartial judges as guaranteed by the German Basic Law as well as by Article 6 § 1 of the Convention.
However, the instant case must be distinguished from the case of Schwarzenberger in so far as the applicant in that case did not limit the reasoning of his constitutional complaint to pointing out the simple fact that two judges had sat in the proceedings against his co-accused. Rather, he submitted in detail why the judges’ conduct in those proceedings had led to an objectively justified fear of bias as regards his own trial (see Schwarzenberger, cited above, § 20). The applicant in the instant case only alleged that because the presiding judge had previously tried his co‑ accused he should ipso jure have been excluded from his trial because he was already familiar with the circumstances of the alleged offence. 
His argument thus did not extend beyond the mere fact of Judge F.’s prior involvement in related proceedings. In particular he did not elaborate on why this involvement rendered Judge F. biased or why exactly Article 23 of the Code of Criminal Procedure should be applied mutatis mutandis. Finally, unlike in the case of Schwarzenberger, the applicant did not allege that the statements in the first judgment regarding his involvement in the offence went beyond what was necessary and/or contained negative value judgments about him.
Under these circumstances and taking into consideration that the constitutional complaint constitutes a special remedy in German law and not just a further appeal on points of law, the Court agrees with the Federal Constitutional Court that the applicant failed to put forth specific constitutional law arguments to support his allegation that Judge F.’s prior involvement raised an issue with respect to his constitutional right to a decision by a legally competent judge and therefore did not adequately substantiate his constitutional complaint.
The Court also sees no indication that the Federal Constitutional Court in the instant case displayed excessive formalism when requiring the applicant, who was represented by counsel, to substantiate his complaint with regard to an alleged violation of his constitutional rights.
It follows that the applicant failed to exhaust domestic remedies with regard to this complaint and that this part of the application has to be declared inadmissible under Article 35 § 1 of the Convention.
2.  Other alleged violations of the Convention
The applicant also alleged further violations of Articles 5 and 6 as well as violations of Articles 2, 3 and 14.
In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. If follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
	Claudia Westerdiek	Peer Lorenzen
	Registrar	President