Wed, Dec. 27, 2006

Adversarial Hearing

CK -Washington.   The Federal Supreme Court in Karlsruhe applied the rules of the Human Rights Convention to German criminal procedure in lifting a criminal conviction based on a non-adversarial pre-trial interrogation of a witness.

At the investigative hearing, the examining judge removed the defendant from the hearing room after the witness expressed her displeasure at testifying in his presence. Subsequently, she failed to follow a summons to testify at the trial. Her statements procured at the hearing without confrontation by the defenant or counsel proved determinative for the conviction but was not supported by other evidence.

On November 29, 2006, the Supreme Court decided in the matter 1 StR 493/06 that the conviction violated article 6(1)(1)(3)(d) of the convention as applied to §168c of the German Statute on Criminal Procedure. The court remanded the matter to the Munich District Court for a new trial.

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