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announced
April 23, 2007
Case: Appeal to the Federal Court of Justice against the judgment of the Regional Court Munich I in the 1st instance, decision of the Grand Senate for criminal matters on submission of a legal question by the 1st Criminal Senate responsible for the appeal
Ref. / Reference: BGH 1 StR 466/05,
template GSSt 1/06 (PDF; 135 kB)
Official guidelines
  1. An admissible correction of the minutes can also deprive the complainant of the factual basis of a procedural objection that has already been properly raised.
  2. In such a case, the notifying persons must first hear the complainant before any intended amendment of the minutes. If he contradicts the intended correction in a substantiated manner, other parties involved in the proceedings must be asked if necessary. If the notifying persons adhere to the protocol correction despite the objection, their decision on this must be given reasons.
  3. The relevance of the protocol correction is subject to review by the appeal court in the context of the procedural complaint. In case of doubt, the protocol in the unrevised version applies.
Judge
Hirsch, Rissing-van Saan, Nack , Basdorf , Häger, Maatz, Wahl, Bode, Kuckein, Pfister, Becker
Applied Law '
Article 19 (4) of the Basic Law , Section 274 of the Code of Criminal Procedure

The decision of the Federal Court of Justice on complaints changed a more than 100-year-old case law that had existed since the Code of Criminal Procedure (StPO) of 1877. After that, the protocol of a criminal case could no longer be effectively corrected after a procedural complaint was raised.

The decisive factor is the decision for cases in which a procedural error does not actually exist, but it is unshakably documented and ultimately for the question of whether the main hearing against a defendant has to be repeated because of this.

Depending on the type of error, this can - as in the present case, for example, when reading out the charge sentence - affect the consumption of criminal charges .

facts

The decision was based on a judgment of the regional court, by which the defendant had been sentenced to a prison sentence of 3 years and 9 months for dangerous bodily harm . After the verdict, he hit another man in an Oktoberfest tent with a heavy glass jug twice on the back of the head and once in the neck area .

The defendant had appealed against the judgment and objected to the proceedings before the criminal division of the regional court as flawed. He claimed that the public prosecutor had not read out the charge at the main hearing and thus violated mandatory procedural law. This results irrefutably from the minutes of the main hearing , which were drawn up by the presiding judge of the criminal chamber and the clerk. Only after the accused had reprimanded this with the appeal, did the presiding judge and the clerk correct the main hearing so that the charge had been read out. The clerk had referred to a transcription error she had made in the production of the fair copy from the partially stenographic records during the main hearing. Before the protocol was corrected, the chairman had obtained official statements from the other judges and the public prosecutor. For example, an associate judge had stated that he could remember the reading of the indictment so precisely because the public prosecution's legal assessment of the crime as attempted manslaughter had triggered expressions of discontent in the audience.

The defense attorney had also not substantiated the amendment of the minutes.

Legal problem

According to § 274 StPO, the main formalities of the main hearing can only be proven by means of the protocol. Its evidential value can only be shaken by evidence of forgery. The subsequent correction of an incorrect record by the recorder (usually the presiding judge and clerk) was not permitted according to previous case law if it would undermine an appeal (so-called prohibition of stifling complaints).

Based on this case law, the 1st Criminal Senate would have been required to overturn the judgment because of a procedural error that had not actually occurred and to refer the matter back to the Regional Court, since there were no further revisable errors in the judgment under appeal.

Revision and submission procedures

The 1st Criminal Senate wanted to give up the previous case law and decide this legal question differently. When asked by the other senates of the Federal Court of Justice, however, not all of them wanted to join him. In order to preserve the uniformity of the jurisprudence in such cases, the legal question for a decision must be submitted to the Grand Senate for Criminal Matters, which in this case consisted of 11 judges.

The decision on the appealed against is made by the 1st Criminal Senate, taking into account the decision of the Grand Senate for Criminal Matters.

reasons

The decision of the Grand Senate for Criminal Matters is based on the following considerations:

  1. In criminal procedural law, the admissibility and importance of a protocol correction are not expressly regulated. The legal materials on the Code of Criminal Procedure do not contain any clear information in this regard. According to § 274 sentence 1 StPO, compliance with the procedural steps and rules prescribed for the main hearing ( § 273 Paragraph 1 StPO) can only be proven by the protocol. This is a rule of evidence that applies after the properly drawn up protocol has been completed and signed by both notaries. This was initially understood to mean that the notifying persons were denied any corrections to the minutes as far as the essential formalities of the proceedings were concerned, both in favor of and against the complainant. The question of the significance of protocol corrections would then not arise.
  2. In the civil procedure code, which contains a comparable provision ( § 165 ZPO), Art. 1 No. 1 of the law relieving the regional courts and simplifying the judicial protocol of December 20, 1974 (ProtVereinfG, Federal Law Gazette I 3651) with § 164 ZPO a provision has been inserted according to which - after hearing the parties involved - protocol corrections may be made. In contrast to administrative, financial and social court proceedings, the legislature has not declared this provision to be applicable to criminal proceedings.
  3. After initial fluctuations, the criminal justice system has allowed the minutes to be corrected, essentially justifying this by stating that there is a loophole in the law that needs to be interpreted. However, the scope and consequences of permissible corrections were not determined uniformly:
    1. Correction of the protocol is permitted and required at any time if the notary recognizes defects. It is also always significant if it works in favor of the accused or if it has been carried out partly in his favor, partly in his disadvantage in a single process.
    2. According to previous jurisprudence, a correction of the protocol - as well as a distancing of the notary from the protocol content - is irrelevant if it removes the factual basis of an admissible procedural complaint ( prohibition of stifling complaints ). This legal proposition has a long tradition: it can be found - building on the case law of the Prussian higher courts, at the beginning of the case law of the Reich courts. It remained the permanent jurisprudence of the Reichsgericht and the Federal Supreme Court and agrees with the prevailing jurisprudential opinion.
  4. However, there are more weighty reasons for abandoning this case law:
    1. The appeal courts are bound to the truth. If procedurally significant facts from the main trial of the judge need clarification, the true facts must always be decisive as they occurred. The rule of evidence in Section 274 of the Code of Criminal Procedure does not create a concept of truth that deviates from objective truth. The evidential value of the protocol does not change the facts, does not turn falsehood into truth. This is a decisive argument in favor of interpreting the regulation of Section 274 of the Code of Criminal Procedure in a way that guarantees the factual and substantive correctness of the minutes of the meeting.
    2. There is no procedural right of those involved in the process that something that has not happened is notarized or that something that has not happened is notarized.
      1. If there is actually no procedural error, deficiencies in the protocol that the notary would have recognized and eliminated must not be a reason for revision. Any confidence on the part of the appellant that a protocol - incorrect in content - would remain significant for the revision body alone is not worthy of protection and cannot be based on the constitutionally guaranteed right to effective legal protection (Article 19.4 of the Basic Law).
      2. Rather, the Basic Law speaks against such trust. The review of court decisions on the basis of the objectively true facts is necessary because of the principle of acceleration of proceedings and the protection of victims. The fiction of procedural error by means of protocol is itself a procedural error. It must not lead to an automatism with grosser violations that violate the rule of law, such as excessive procedural length.
    3. The consideration of the subsequent amendment of the protocol does not contradict the law. The o. A. The principle is based on case law and can be changed by case law. There is no need for a law. Section 274 sentence 2 of the Code of Criminal Procedure only allows counter-evidence against the notarization of the protocol to be evidence of forgery. However, a correction by declarations of the notarial persons contains a revocation of the earlier notarization and to this extent deprives it of the absolute evidential value, so that counter-evidence is no longer required.

This change in case law must nevertheless secure the right to appeal:

  1. The protocol correction requires a legally binding form and must in turn meet the same care requirements as the protocol.
  2. Before the minutes are corrected, however, the appellant must be given a full fair hearing . He is to be presented with detailed official statements from the members of the court of origin and the clerk and his defense counsel to be heard independently.
  3. If the intended amendment of the minutes is objected to and the person taking the minutes still want to correct it, this is in turn a decision that requires comprehensive justification and is to be fully examined by the appellate court and, if necessary, is subject to clarification by free evidence (see above). If this cannot be clarified beyond doubt by the appeal court, the protocol version that has not been corrected remains.

See also

literature

Web links

Individual evidence

  1. ↑ BGH NJW 2006, 3579, 3581, = BGHSt 51, 88; Dahs AnwBl. 1950/51, 90 f .; Dallinger NJW 1951, 256, 257; Fahl, Abuse of Rights in Criminal Procedure 2004, p. 687 f.
  2. ↑ in this sense also RGSt 8, 141, 143 f .; 17, 346, 348.
  3. ↑ Art. 1 No. 1 of the law on the discharge of the regional courts and on the simplification of the court protocol of December 20, 1974 (ProtVereinfG) Federal Law Gazette I 3651.
  4. ↑ Art. 3 No. 1, Art. 4 No. 1, Art. 5 No. 2 of the ProtVereinfG: each reference to Sections 159 to 165 ZPO.
  5. ↑ cf. BGHSt 1, 259, 261; BGH JZ 1952, 281; NStZ 2005, 281, 282; RGSt 19, 367, 370; OGHSt 1, 277, 278; differently still RGSt 8, 141, 143 f .; 17, 346, 348.
  6. ↑ BGHSt 1, 259, 261 f .; RGSt 19, 367, 369 f .; 21, 200, 201; OLG Cologne NJW 1952, 758.
  7. ↑ BGHSt 1, 259, 261 f .; RGSt 56, 29; RG GA 57 [1910], 396; JW 1932, 3109.
  8. ↑ cf. on this, BGHSt 4, 364; BGH NStZ 1988, 85
  9. ↑ cf. RGSt 43, 1, 10.
  10. ↑ RGSt 2, 76, 77 f.
  11. ↑ fundamentally RGSt 43, 1 mwN; also RGSt 56, 29; 59, 429, 431; 63, 408, 409 f.
  12. ↑ BGHSt 2, 125; 7, 218, 219; 10, 145, 147; 10, 342, 343; 12, 270, 271; 22, 278, 280; 34, 11, 12; BGHR StPO § 274 Evidence 11; 13; 27; 28; BGH NStE StPO § 344 No. 7; NStZ 1984, 521; 1995, 200, 201; 2002, 219; StV 2002, 183; JZ 1952, 281; wistra 1985, 154; Judgment of December 21, 1966 - 4 StR 404/66
  13. ↑ cf. only Gollwitzer in LR, 25th edition, § 271 marginal note 55 ff. with further references
  14. ↑ but Cüppers NJW 1950, 930, 931 ff .; 1951, 259; Dahs, StraFo 2000, 181, 185; Jahn JuS 2007, 91 fn. 3; Park StraFo 2004, 335, 337; Schneidewin MDR 1951, 193; see. also RGSt 43, 1, 6.
  15. ↑ European Court of Human Rights judgment of May 31, 2001 - No. 37591/97 - Metzger v. Germany - marginal no. 41 = NJW 2002, 2856, 2857
  16. ↑ BVerfG NJW 2003, 2897, 2898; 2006, 672, 673; see. also BVerfGK 2, 239, 251 3rd Chamber of the Second Senate; BGH NJW 2006, 1529, 1533.