Published: 19 September 2024 Authors: Pauline Brinkmann, Iria Lores Wallenfang and Stefan Talmon
On 11 July 2011, the Regional Court in Darmstadt sentenced Graham S. (G.S.) to life imprisonment for the murder of businessman Michael Meng (M.M.). Graham S. was the lover of Salina Meng (S.M.), the murder victim’s wife. She had been summoned during the trial as a witness, but refused to testify, as she was by then engaged to Graham S.
At the beginning of 2013, Salina Meng was also arrested and charged with the murder of her husband before the same court. The judge assigned to preside over her case was Philipp Müller, who had previously served as judge rapporteur in the trial of Graham S. Ms Meng’s lawyer queried this, upon which Judge Müller referred the case file on 7 October 2013 to a chamber of the Regional Court to evaluate whether his role as judge rapporteur in the case against Graham S. might be grounds for a charge of bias. The panel of three judges, two of whom were to sit as professional judges in Ms Meng’s trial, determined on 11 October 2013, however, that his presiding over the case was permissible. Although Ms Meng’s role in the offence had been addressed in the trial and judgment against Graham S., the court had ‘not expressed any unnecessary or unfounded value judgments’ regarding Ms Meng, the panel determined. On 14 October 2013, Salina Meng applied for Judge Müller’s recusal on the grounds of bias, citing passages from the judgment against Graham S. as evidence that the court, including Judge Müller, had prejudged her guilt in its statement of facts, in particular in its elaboration of a plan drawn up jointly with Graham S. to kill her husband. Her application was rejected, however, and she was convicted of murder and sentenced to life imprisonment in April 2014.
Ms Meng appealed the verdict, but the Federal Court of Justice dismissed the case in February 2016, stating in line with its well-established case law:
The complaint of bias is unfounded. Regional Court Judge [Müller’s] participation as judge rapporteur in the sentencing of the [applicant’s] former lover to life imprisonment for murder before the Regional Court in Darmstadt on 11 July 2011 does not justify the concern of bias in the present case in which he participated as presiding judge.
The participation of a judge in a previous decision is not, as a rule, grounds for disqualification. Doubts about a judge’s impartiality are not justified simply because he participated in previous criminal proceedings in which the same findings that play a role in later proceedings are relevant. This also applies when the participation in the conviction of an accomplice involves the same offence. A different appraisal is only legitimate if special circumstances are present. This can be the case if the judgment in the earlier case contains unnecessary and objectively unfounded value judgments about the accused in the later case or if the judge expressed himself in other subjective ways that disadvantaged the accused.
The judgment from 11 July 2011 does not contain such comments or assessments. Grounds for the verdict … correspond to the established facts and the assumption that the murder was committed out of greed. Furthermore, the judgment from 11 July 2011 does not contain any applicable determinations or assessments to justify the concern that Regional Court Judge Müller was prejudiced.
Salina Meng filed a constitutional complaint against the decision, but the Federal Constitutional Court declined her application for review on 11 July 2016 without giving any reasons.
Ms Meng accordingly filed a complaint with the European Court of Human Rights (ECtHR) on 27 December 2016, alleging that that the Regional Court in Darmstadt and Judge Müller had not been impartial in her trial. She based her complaint on Article 6(1) of the European Convention on Human Rights (ECHR), which provides that ‘everyone is entitled to a fair … hearing … by an independent and impartial tribunal established by law.’
In its judgment of 16 February 2021, the ECtHR held that there had indeed been a violation of Article 6(1) ECHR. The Court stated:
Impartiality denotes the absence of prejudice or bias. The existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, that is on the basis of the personal conviction and behaviour of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees which were sufficient to rule out any legitimate doubt in this respect.
The Court found that there was nothing to indicate that Judge Müller had acted with personal prejudice in the proceedings against the applicant, Salina Meng. Consequently, the judge’s personal impartiality was to be presumed (subjective test). The Court therefore had to determine whether his participation as judge rapporteur in the judgment against Graham S., which contained numerous references to Salina Meng, had led to an objectively justified fear that judge Müller was not impartial (objective test). To ascertain this, the ECtHR examined whether the judgment of the Regional Court against Graham S. contained findings that prejudged the question of Ms Meng’s guilt. The Court found:
That judgment contained extensive findings of fact also concerning the applicant. It stated, in particular, that ‘[t]hey’ – that is, G.S. and the applicant – ‘…decided to kill [M.M.]’ and that the applicant, following a ‘plan made jointly with the accused to kill [M.M.] in order to get hold of his assets’, prepared the act as well as the acquisition of [M.M.]’s assets. It further assessed evidence taken at the trial also in respect of the applicant and found, in particular, that the fact that neither G.S. nor the applicant had asked about the cause of M.M.’s death could easily be explained in the circumstances ‘as they had committed the offence themselves or been involved in it’. Moreover, when legally classifying the killing of M.M. as murder, the Regional Court stated 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 … had to be particularly taken into account’.
The Court observes in this context that the Regional Court, in its judgment against G.S., presented its findings regarding the applicant as established facts and established legal qualification thereof, and not as mere suspicions. …
The Court cannot but note that the judgment against G.S. contained a detailed assessment of the precise role played by the applicant in the violent death of M.M. going beyond a factual account of the circumstances of the crime. It can be regarded as having established that the criteria necessary for the act to constitute a criminal offence were also met in respect of the applicant. The judgment described in detail not only the premeditated killing of her husband and the manner in which the joint plan with G.S. was carried out, but also the base motives of the applicant herself for acting in that manner, namely that she wished to acquire M.M.’s assets in a reckless manner. The Regional Court can thereby be seen to have made a legal assessment of the act also in respect of the applicant in that it found in substance that not only G.S., but also the applicant had acted out of greed and that the latter had thus participated in, and was equally guilty of, the murder of M.M. The Court cannot but note in that context that these findings and the assessment in respect of the applicant were made despite the fact that G.S. had been charged as a single perpetrator who was found to have acted alone at the crime scene and that the legal assessment of the applicant’s acts appears to go beyond what was necessary to legally qualify G.S.’s offence.
Considering all the circumstances of the case, the ECtHR concluded that Salina Meng had a legitimate fear that the wording of the judgment against Graham S. indicated that Judge Müller had a preconceived view of her guilt. Her doubts as to the impartiality of the Regional Court in her own case were therefore objectively
On 30 July 2021 Salina Meng applied to the Regional Court in Kassel for her case to be reopened in accordance with Section 359 No. 6 of the Code of Criminal Procedure which provides:
The reopening of proceedings concluded by a final judgment for the convicted person’s benefit is admissible … if the European Court of Human Rights has held that there has been a violation of the European Convention on the Protection of Human Rights and Fundamental Freedoms or of its Protocols and the judgment was based on that violation.
Salina Meng argued that the requirements of this provision were met. On 25 February 2022, while the Regional Court’s decision on her application was still pending, Germany’s Federal Ministry of Justice submitted an ‘Action Plan on the execution of the judgment of the European Court of Human Rights’ in the case of Meng v. Germany to the Council of Europe’s Committee of Ministers. The Federal Ministry of Justice wrote that it considered the Convention violation to be ‘an isolated case’ resulting from the particular circumstances of the applicant’s conviction and the failure by the higher courts to remedy a specific procedural defect. Referring to Section 359 No. 6 of the Code of Criminal Procedure, the Federal Ministry of Justice informed the Committee of Ministers that Salina Meng had exercised her rights in applying for the reopening of proceedings to the competent court. This was considered sufficient to execute the ECtHR’s judgment. The Federal Ministry of Justice stated:
The Federal Government considers that the possibility for a reopening of the proceedings (application currently pending) sufficiently redresses the violation suffered by the applicant and that the wide dissemination of the Court’s judgment will prevent similar violations in future. Therefore, the Federal Government considers that the implementation of the judgment does not require the adoption of any measures [other] than those already taken and that Germany has thus complied with its obligations under Article 46 paragraph 1 of the Convention. The Federal Government commits to informing the Committee of Ministers of the outcome of the application for reopening of the proceedings as soon as possible.
As the wording of this statement indicates, however, the reopening of proceedings remained merely a theoretical possibility, not a guarantee. On 10 March the Regional Court in Kassel dismissed Salina Meng’s application to reopen proceedings as inadmissible.
Salina Meng filed an appeal against the Regional Court’s decision, but this too was rejected on 8 July 2022 by the Higher Regional Court in Frankfurt am Main on the grounds that she had not demonstrated in her complaint that the judgment in her initial conviction was ‘based on the violation of the Convention’. The Higher Regional Court found it insufficient merely to mention the decision of the European Court of Human Rights holding that there had been a violation of the appellant’s Convention rights. This was also true in cases where the violation of the Convention concerned doubts about the impartiality of the court. That is, it could not simply be assumed that the judgment was based on the violation of the Convention; it had to be proven. To do so, the convicted person had to present evidence from the findings of fact in the judgment itself or from conclusions drawn in the assessment of facts showing that the violation of the Convention may have had an impact on the conviction and that the outcome of the trial might have been different if the violated Convention provision had been respected. This Salina Meng had failed to do, held the Higher Regional Court.
On 26 August 2022, Salina Meng lodged a constitutional complaint against the Higher Regional Court’s decision with the Federal Constitutional Court. On 4 December 2023, the Federal Constitutional Court issued its decision. The Court found that by adopting section 359 No. 6 of the Code of Criminal Procedure, the legislature had made it possible to rectify violations of the European Convention on Human Rights. The requirement that ‘the judgment was based on that violation’, however, excluded the reopening of proceedings for the convicted person’s benefit in cases in which a violation of the Convention had no effect on the judgment. The Federal Constitutional Court therefore examined in detail the requirements for showing that a judgment was ‘based’ on a Convention violation in terms of Section 359 No. 6 of the Code of Criminal Procedure and ruled that the Higher Regional Court had imposed impossible and unreasonable standards in this regard. It did not always follow from the findings of fact in the judgment or from conclusions drawn during the assessment of evidence that the Convention violation could have influenced the conviction, particularly when a judgment contained no references to findings of fact in the previous judgment and was based on an independent gathering and assessment of evidence. The Federal Constitutional Court found:
[T] he Higher Regional Court ultimately fails to recognise that the violation of the Convention found by the [European] Court [of Human Rights] does not lie in the fact that (possibly) a biased judge was involved in the proceedings conducted against the complainant and in the decision rendered against her, but in the fact that a judge participated in the proceedings whose impartiality, when viewed objectively, gave rise to justified doubts from the complainant’s point of view. Contrary to the opinion of the Higher Regional Court, the impact of the Convention violation established by the European Court of Human Rights was already manifest in the judge’s influence on the proceedings against the applicant as such and not just in any bias reflected in the judgment.If one were to demand that a violation of the Convention always be reflected in the judgment against the convicted person, this would lead to certain violations of the European Convention on Human Rights, recognised in the case law of the European Court of Human Rights, being excluded from the outset [as grounds] for reopening proceedings. The reopening of proceedings must, however, also be possible if the European Court of Human Rights finds a violation of Article 6(1) of the ECHR because of a judge’s prior involvement in the proceedings, even if objectively justified doubts about the impartiality of the court (objective test) are supported solely by indications in an earlier judgment.
By its Order of 4 December 2023, the Federal Constitutional Court accordingly remanded the decision of the Higher Regional Court in Frankfurt am Main for violating the right of access to justice and referred the case back for a new decision.
On 14 March 2024, the Higher Regional Court of Frankfurt am Main ordered the reopening of proceedings for Salina Meng’s benefit. The Court stated:
Since a violation of the Convention has been established by the judgment of the ECtHR and it cannot be ruled out that the judgment of the Darmstadt Regional Court is based on the violation of the Convention, the application for reopening based on Section 359 No. 6 of the Code of Criminal Procedure is justified.
Salina Meng’s guilt thus had to be determined afresh in a new trial with different
Ten years after the first conviction and eight years after the European Court of Human Rights found Germany in violation of Article 6(1) ECHR, the German courts finally rectified the violation by ordering a retrial. It is regrettable that it required a judgment by the Federal Constitutional Court to remind the lower courts that justice must not only be done but it must also be seen to be done. Any trace of prejudice or bias on the part of judges – irrespective of whether subjective or objective – taints legal proceedings. There should be no question: whenever there is an objectively justified fear that a judge was not impartial, proceedings should be reopened for the convicted person’s benefit.
Category: International law and German law
DOI: 10.17176/20240920-020819-0
