German Federal Constitutional Court Raises Bar for Impartiality of Judges

Murder case to be tried before new judge

January 29, 2024

The German Federal Constitutional Court (BVerfG) granted the constitutional complaint lodged by a woman sentenced to life imprisonment for murder. She had challenged the impartiality of a judge and filed an application with the European Court of Human Rights (ECtHR). Despite the success of her constitutional complaint, the German criminal courts rejected her request that the criminal proceedings against her be reopened. The recently published decision of the Federal Constitutional Court is in line with the assessment of Max Planck criminal law researcher Morten Boe, who analyzes judicial impartiality and has commented on the proceedings.

The German Federal Constitutional Court has upheld Salina M.'s constitutional complaint.

The Federal Constitutional Court granted the constitutional complaint of Salina M., who was sentenced to life imprisonment for murder. She had questioned the impartiality of a judge on the grounds that the judge had already been involved in a previous trial concerning the murder case. Salina M. had only appeared as a witness at the earlier trial, but during the course of the proceedings, indications emerged that she may have been involved in the crime. In the subsequent trial, Salina M. was convicted of murder – albeit under the same judge who had sat on the bench in the previous proceedings. She appealed against this conviction in several instances.

The European Court of Human Rights (ECtHR), the court before which Salina M. ultimately lodged a complaint, found that there were well-founded doubts as to the impartiality of the judge due to the “judge’s involvement in earlier proceedings on the same subject matter”. The ECtHR declared a violation of Art. 6 para. 1 of the European Convention on Human Rights (ECHR). However, the German courts – supported by the German Federal Public Prosecutor General – refused to reopen the proceedings. In the meantime, however, the Federal Constitutional Court has essentially upheld Salina M.'s constitutional complaint. The case will be retried – without the judge who presided at the time. With its recently published decision, the Federal Constitutional Court has “given the Higher Regional Court (OLG) in Frankfurt am Main and the Federal Public Prosecutor General a lesson in constitutional law”, according to an article in Legal Tribune Online. The criminal courts had been making access to a new trial unjustifiably difficult.

Securing public trust in the legal system in the long term

Criminal law analyst Morten Boe, a doctoral researcher at the Max Planck Institute for the Study of Crime, Security and Law, is taking a scientific look at judicial impartiality. With the BVerfG's decision, the court is now “on a clear common line with the ECtHR”, Boe wrote in a commentary. According to the researcher, recusal and disqualification in the law of criminal procedure has the function of guaranteeing the objective impartiality of the legal judge and is fundamental to securing the public’s trust in the legal system in the long term. For the future, there exists a “clear mandate to ensure that German rules governing the requirement of impartiality in proceedings on the same subject matter are interpreted and applied in accordance with the constitution, convention law, and European law.”

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