Federal Court of Justice (BGH), Decision as of 1/14/2010
File number 3 StR 403/09

Key issues

Criminal proceedings regarding rape and serious human trafficking; quashing of a conviction due to the failure to inform the accused of the contents of the witness’s testimony in his absence; comments on the issue as to when a judgment is based on an error in law.


On the appeal of the accused, the highest appellate court (BGH) quashed the conviction entered against him by the court of first instance on account of a procedural error.

The accused was convicted of rape and serious human trafficking and sentenced to imprisonment for five years, the trial court having been convinced that he had induced the female co-prosecutor, by raping her, to work as a prostitute. The court had convinced itself of the truth of these events on the basis of several examinations of the co-prosecutor, who was also the only witness. The accused, who had disputed the charge, was removed from the courtroom on one of the days of the hearing on account of disturbance pursuant to section 231b of the German Code of Criminal Procedure (StPO). During his absence, the co-prosecutor was questioned anew. The accused was not informed about the contents of her testimony as prescribed by sections 231b (2) and 231a (2) StPO.

The BGH considered the issue as to whether the decision arrived at by the court of first instance rested on this procedural error. It concluded that it must already be presumed that it did [rest on this procedural error] if it cannot be ruled out that without the error it would have been decided differently.

The BGH, which had no knowledge of the contents of the renewed testimony, assumed that the repeated questioning involved the clarification of inconsistencies in earlier examinations, such as inconsistent statements about the rape. The court was therefore of the opinion that it could not be ruled out that the accused would have had other possible defences had he known what the contents of the testimony were. The BGH therefore overturned the judgment and remitted the case to the court of first instance for a retrial.

Decision in full text:

BGH_14_01_2010 (PDF, 70 KB, not barrier-free, in German)

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