CEDH · CASELAW;REPORTS;ENG — 6 octobre 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  Application No. 9999/82 Serif COLAK against   the FEDERAL REPUBLIC OF GERMANY   REPORT OF THE COMMISSION     adopted on 6 October 1987   TABLE OF CONTENTS                                                                    Page   I.       INTRODUCTION         (paras. 1-20) .........................................     1           A.       The application                 (paras. 2-5) ..................................     1           B.       The proceedings                 (paras. 6-15) .................................     1           C.       The present Report                 (paras. 16-20) ................................     2   II.      ESTABLISHMENT OF THE FACTS         (paras. 21-73) ........................................     4           A.       The particular circumstances of the case                 (paras. 21-52) ................................     4                   1)    The applicant's arrest and detention                      (paras. 21-25) ...........................     4                   2)    The pre-trial proceedings - in particular                      the proceedings on the admission of the                      indictment                      (paras. 26-30) ...........................     5                   3)    The trial proceedings                      (paras. 31-43) ...........................     6                   4)    The appeal proceedings                      (paras. 44-46) ...........................     8                   5)    The constitutional appeal proceedings                      (paras. 47-52) ...........................     8           B.       The relevant law and practice in the                 Federal Republic of Germany                 (paras. 53-91) ................................    10                   1)    Criminal offences                      (paras. 53-57) ...........................    10                   2)    Conditions of the commission of                      the offence                      (paras. 58-66) ...........................    11                   3)    Provisions on the competent court                      (paras. 67-68) ...........................    12                   4)    Provisions on the Bill of Indictment                      (para. 69-70) ............................    12                   5)    Provisions on the admission of the                      charges (Eröffnungsverfahren)                      (paras. 71-75) ...........................    12                   6)    Relevant provisions on the trial                      proceedings                      (paras. 76-83) ...........................    13                   7)    Provisions on the judgment, in particular                      if it differs from the admitted charge                      (paras. 84-87) ...........................    14                   8)    Practice concerning out-of-court                      arrangements                      (paras. 88-91) ...........................    15   III.     SUBMISSIONS OF THE PARTIES         (paras. 92-131) .......................................    16           A.       The applicant                 (paras. 92-106) ...............................    16           B.       The Government                 (paras. 107-131) ..............................    19     IV.      OPINION OF THE COMMISSION         (paras. 132-158) ......................................    27           A.       Point at issue                 (para. 132) ...................................    27           B.       Article 6 of the Convention                 (paras. 133-157) ..............................    27           C.       Conclusion                 (para. 158) ...................................    32           Individual opinion of MM. Weitzel, Soyer,         Schermers and Danelius and Mrs.   Thune .................    33           Dissenting opinion of Sir Basil Hall ..................    34     APPENDIX I       :   HISTORY OF THE PROCEEDINGS .................    35   APPENDIX II      :   DECISION ON THE ADMISSIBILITY ..............    37 I.     INTRODUCTION   1.       The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The application   2.       The applicant is a Turkish citizen born in 1935 who at the time of filing the application was serving a five-year sentence at the prison of Butzbach, and who after completion of that sentence has now returned to Turkey.   He is represented by Rechtsanwalt Adam Rosenberg of Frankfurt.   3.       The application is directed against the Federal Republic of Germany whose Government were represented by their Agent, Frau Ministerialdirigentin Irene Maier of the Federal Ministry of Justice.   4.       The case concerns criminal proceedings in which the applicant was charged with attempted homicide.   The Regional Court of Frankfurt refused to admit this charge and decided to open trial proceedings only in respect of a charge of causing grievous bodily harm, but that decision was quashed by the Frankfurt Court of Appeal which admitted the charge of attempted homicide.   During the trial the Regional Court indicated in accordance with Section 265 of the Code of Criminal Procedure that a conviction of causing bodily harm instead of attempted homicide was possible.   The applicant alleges that the Presiding Judge in a conversation with defence counsel in the corridor outside the courtroom interpreted this indication as meaning that the Court would actually proceed on the basis of the alternative charge of bodily harm.   The applicant was nevertheless convicted of attempted homicide.   5.       The applicant now complains that the proceedings were unfair and contrary to Article 6 para. 1 of the Convention in that the Regional Court disregarded the Presiding Judge's above assurance and that, as a result, counsel was unable to defend the applicant against the charge of attempted homicide of which he was ultimately convicted.   The Government contest the applicant's allegation concerning the Presiding Judge's statement and submit that, in any event, Article 6 para. 1 of the Convention has not been violated.     B.       The proceedings   6.       The application was introduced on 7 June 1982 and registered on 16 July 1982.   7.       On 14 May 1984 the Commission decided in accordance with Rule 42 para. 2 (b) of its Rules of Procedure to give notice of the application to the respondent Government and to invite them to present before 27 July 1984 their observations in writing on the admissibility and merits of the application.   8.       The Government submitted their observations on 7 August 1984 and the applicant replied on 13 September 1984.   9.       On 6 March 1985 the Commission considered the state of proceedings and decided to request certain additional information from the applicant's lawyer.   This information was submitted on 28 March 1985 and the Government commented thereon on 18 April 1985.   10.      On 8 May 1985 the Commission decided to hold an oral hearing on the admissibility and merits of the application.   11.      The hearing took place on 9 December 1985.   The parties were represented as follows:   -        the applicant by his counsel, Rechtsanwalt Adam Rosenberg of         Frankfurt;   -        the Government by their Agent, Ministerialdirigentin Irene         Maier of the Federal Ministry of Justice, who was assisted by         Ministerialrat Dr.   Wolfgang Sturmhöfel of the same Ministry,         and Staatsanwalt Joachim Wenzel of the Frankfurt Public         Prosecutor's Office, as Advisers.   12.      Following the hearing, the Commission declared the application admissible.   The text of this decision, approved by the Commission on 7 March 1986, was on 14 March 1986 transmitted to the parties who were invited to submit before 1 May 1986 any supplementary observations on the merits which they wished to make.   The Government submitted such observations on 24 April 1986, requesting, inter alia, an investigation.   The applicant submitted observations in reply on 27 June 1986.   13.      On 14 July 1986 the Commission decided to invite the Government to specify in what manner the proposed investigation should be carried out.   The Government replied on 4 September 1986 without making concrete proposals.   14.      On 11 October 1986 the Commission decided not to hold an investigation.   15.      After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.       The present Report   16.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:                       MM. E. BUSUTTIL, Acting President                         J.A. FROWEIN                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         J. CAMPINOS                     Mrs G.H. THUNE                     Sir Basil HALL   17.      The text of this Report was adopted on 6 October 1987 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   18.      The purpose of the Report, pursuant to Article 31 of the Convention, is:   i)       to establish the facts, and   ii)      to state an opinion as to whether the facts found         disclose a breach by the State concerned of its         obligations under the Convention.   19.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   20.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS     A.       The particular circumstances of the case&S   1)       The applicant's arrest and detention&S   21.      On 27 April 1979, following a fight between several Turks in a Turkish restaurant in Frankfurt during which the applicant allegedly injured another person with a knife, he was arrested by the police on suspicion of attempted homicide (versuchter Totschlag).   22.      On 28 April 1979, the District Court (Amtsgericht) of Frankfurt issued a warrant of arrest which, however, was based only on a suspicion of causing grievous bodily harm (schwere Körperverletzung).   23.      At the request of the prosecution and after having heard the applicant, the District Court modified the warrant on 29 May 1979 to the effect that, as a result of the statements made by witnesses and of police investigations, the applicant was under a strong suspicion of attempted homicide.   The Court observed that, if convicted, the applicant could expect a very severe punishment.   24.      This modified warrant of arrest remained the basis of the applicant's detention until his final conviction.   It was expressly maintained by the decision of the Regional Court (Landgericht) of Frankfurt of 13 May 1980 by which, in view of the interruption of the trial, the applicant was released on bail after having paid DM 40,000 into court.   A subsequent request to reduce bail to DM 20,OOO was refused by the Regional Court on 3 October 1980 on the ground that a security in the amount of DM 40,OOO appeared indispensable in view of the seriousness of the offence with which he was charged.   25.      On 10 February 1981, following the applicant's conviction at first instance, the Regional Court revoked the bail and ordered that the former warrant should again be enforced.   The applicant appealed against the revocation of bail claiming that his situation had not essentially changed after the conviction as he had already earlier been charged with an offence (i.e. attempted homicide) punishable by imprisonment of up to fifteen years, but he had not fled the jurisdiction.   This appeal was rejected by the Frankfurt Court of Appeal (Oberlandesgericht) on 6 March 1981.   The applicant thus continued to be detained on remand until the decision of the Federal Court of Justice (Bundesgerichtshof) of 10 February 1982 which confirmed his conviction and sentence.   Thereafter he served the remainder of his sentence as a convicted prisoner (cf. para. 39 below).   2)       The pre-trial proceedings - in particular the         proceedings on the admission of the indictment&S   26.      Immediately after his arrest, at the first police interrogation, the applicant was informed that he was suspected of attempted homicide.   During the subsequent investigation conducted by the prosecution authority he was fully aware of this charge and was repeatedly given an opportunity to state his position in the presence of his defence counsel and an interpreter.   On 29 May 1979 he was also informed by the competent judge of the modification of the arrest warrant (cf. para. 23 above).   27.      On 13 October 1979, the prosecution, having terminated its investigation, submitted a bill of indictment to the Regional Court of Frankfurt.   It qualified the applicant's offence as the crime of attempted homicide (versuchter Totschlag), within the meaning of Sections 212, 22 of the Criminal Code (Strafgesetzbuch).   Accordingly, the prosecutor requested the opening of the trial proceedings (Hauptverfahren) before the Specialised Chamber for Serious Crimes (Schwurgericht) which is competent for this type of offence by virtue of Section 74 para. 2 of the Courts Organisation Act (Gerichts- verfassungsgesetz).   28.      The bill of indictment was served on the applicant both in German and Turkish on 20 November 1979.   In accordance with Section 201 para. 1 of the Code of Criminal Procedure (Straf- prozessordnung) the applicant was granted a hearing by the Presiding Judge of the Specialised Chamber and afforded the opportunity of responding to the statements made in the bill.   The applicant did not object to the case being returned for trial on the basis of this indictment.   29.      However, by a decision of 18 December 1979, the Specialised Chamber, sitting without lay assessors (Section 76 para. 1 of the Courts Organisation Act), declined jurisdiction to deal with the case as it did not share the prosecution's qualification   of the charge, i.e. attempted homicide.   Considering that the charge must be qualified differently, namely as causing grievous bodily harm (schwere Körperverletzung) within the meaning of Sections 223 and 223 (a) of the Criminal Code, it decided that the case should be set down for trial before another Criminal Chamber (Grosse Strafkammer) of the Regional Court in accordance with Section 74 para. 1 of the Courts Organisation Act.   30.      Following an appeal by the prosecution, the Frankfurt Court of Appeal decided on 31 January 1980 to quash the Specialised Chamber's decision insofar as it had denied its own competence.   In the Court of Appeal's view there was sufficient suspicion that the applicant had acted with the intention of killing and thus had committed the offence of attempted homicide.   Although the qualification of the charges by the Regional Court in the decision to open the trial proceedings could not normally be challenged by the prosecution, it could be so challenged in the present case where the issue was decisive for determining the competent Criminal Chamber.   The trial should therefore take place before the Specialised Chamber.   3)       The trial proceedings&S   31.      A first trial took place before the Specialised Criminal Chamber of the Regional Court between 28 April and 13 May 1980.   32.      The applicant and his defence counsel were informed on 5 May 1980, in accordance with Section 265 of the Code of Criminal Procedure, that a conviction for causing bodily harm as opposed to attempted homicide was possible.   The applicant apparently did not ask for an adjournment as provided for in Section 265 para. 4 of the Code.   33.      However, on 13 May 1980 the trial was interrupted because the principal witness, i.e. the victim, could not be contacted.   As already mentioned, the applicant was then released on bail (cf. para. 24 above).   34.      Because of the length of the time which elapsed before the above witness was available, a retrial took place before the Specialised Chamber sitting with a different composition.   This second trial lasted from 15 January until 10 February 1981.   35.      The transcript of 16 January mentions that defence counsel was again informed under Section 265 of the Code of Criminal Procedure of the possibility of a conviction for bodily harm as opposed to attempted homicide, and that he was given an opportunity to prepare his defence accordingly.   36.      The applicant alleges that, following this intimation by the Court, his defence counsel was told by the Presiding Judge in the corridor outside the court room that he could assume that the Court would actually proceed on the basis of a charge of bodily harm; he would inform him in good time if the position changed (cf. para. 93 below).   This allegation is contested by the respondent Government (cf. paras. 107 et seq. below).   37.      The applicant's subsequent defence did not specifically deal with the homicide issue.   The applicant remained silent and his defence counsel pleaded that there was a possibility that another person had caused the injury or, if the applicant had caused it himself, that he had done so in a state of reduced criminal responsibility due to his drunkenness.   He requested a conviction on the offence of drunkenness according to Section 330 (a) of the Criminal Code.   38.      On 23 January 1981 the prosecution likewise pleaded that a state of reduced criminal responsibility could be assumed and that because of his drunkenness an intention to kill could not be imputed to the applicant.   The prosecution requested a three-year sentence for grievous bodily harm.     39.      However, on 10 February 1981 the Regional Court convicted the applicant of attempted homicide and sentenced him to five years' imprisonment.   40.      The Court noted that the applicant had denied the stabbing and that he had restricted his testimony to his personal circumstances and his consumption of alcohol on the night of the offence.   However, it considered that his guilt was established by the evidence.   41.      The Court's findings were largely based on the testimony of the victim which was considered credible by reason of various circumstances despite the fact that this witness, as victim and co-prosecutor, might have had an interest in giving evidence unfavourable to the applicant.   42.      On the basis of the established facts, the Court concluded that the applicant had attempted to kill a person in circumstances not amounting to murder, and was thus guilty of attempted homicide. He had acted with intent in the form of dolus eventualis (bedingter Vorsatz).   The intent had been to stab the witness once in retaliation for the latter's stabbing of a friend with a fork.   The applicant's state of knowledge was sufficient for him to know that stabbing someone in the upper part of the abdomen with a blade as long as a man's hand could kill even if medical assistance was immediately available.   He carried out the stabbing in full knowledge of the possible fatal outcome, a possibility in which he acquiesced.   The Court inferred his acquiescence from the fact that the applicant had used a long knife with considerable force, without being able to direct the thrust in such a way as to make the fatal outcome less likely.   43.      The Court further concluded on the basis of expert evidence that at the time of the offence the applicant did not lack criminal responsibility in the sense of Section 20 of the Criminal Code. However, the Court assumed in the applicant's favour that his ability to control himself was considerably diminished by his consumption of alcohol and the anger about the injury caused to his friend.   The Court therefore applied Section 21 of the Criminal Code (reduced criminal responsibility).   The sentence was consequently mitigated in accordance with Section 49 of the Criminal Code.   4)       The appeal proceedings&S   44.      The applicant lodged an appeal on points of law (Revision) against the above judgment.   He claimed, inter alia, the nullity of the proceedings on the ground that despite the assurances allegedly given by the Presiding Judge the defence was not informed again, according to Section 265 of the Code of Criminal Procedure, of a change of the Chamber's view, and therefore could not prepare the defence accordingly.   45.      In his reply of 1 December 1981, the Federal Attorney (Generalbundesanwalt) denied a violation of the above provision.   In his opinion it was not decisive that the opening of the proceedings on the basis of attempted homicide had originally been refused.   The indictment based on this offence had in the last resort been admitted and had thus become the basis of the proceedings.   The conviction for attempted homicide was not excluded by the fact that the Presiding Judge had indicated during the trial that a conviction for bodily harm was also possible.   This did not create an obligation for the Court to proceed only on this latter basis.   Even the assurance allegedly given by the Presiding Judge to the defence outside the court room could not change the situation.   The Presiding Judge alone was not competent to give such assurances.   This could only be done by the Chamber as a whole which, moreover, could form an opinion only at the end of the proceedings as a result of its deliberations.   The Federal Attorney therefore proposed the rejection of the applicant's appeal, inter alia, on this point.   46.      By a decision of 10 February 1982, the Federal Court of Justice (Bundesgerichtshof) rejected the appeal as a whole, without giving detailed reasons.    It simply stated that a review of the judgment on the basis of the appeal arguments did not disclose any error of law to the detriment of the accused.     5)       The constitutional appeal proceedings&S   47.      The applicant then filed a constitutional appeal based on Articles 20 para. 3 and 103 of the Basic Law (Grundgesetz).   He claimed that the principles of fair trial had been disregarded in particular by the Court's failure to safeguard the applicant's procedural rights (prozessuale Fürsorgepflicht).   The assurance given by the Presiding Judge must have been understood by the defence as binding the Court as a whole, and the Court's subsequent failure to inform the defence of its different view consequently violated the applicant's rights of defence.   48.      However, the Federal Constitutional Court, acting through a three-judge committee according to Section 93 (a) para. 2 of the Federal Constitutional Court Act (Gesetz über das Bundesverfassungs- gericht), decided on 17 May 1982 to reject the constitutional appeal as lacking sufficient prospects of success.   49.      In the reasons it was stated that the proceedings had not been unconstitutional.   The applicant could not assume that he would not be convicted for homicide.   Neither the Regional Court's original refusal to open the proceedings on this basis, nor its subsequent intimation at the trial that a conviction for bodily harm was also possible, nor the fact that at the trial the prosecution applied for a conviction for bodily harm could justify such an expectation.   As the charge of attempted homicide had been admitted by the Court of Appeal, the applicant ought to have assumed that a conviction on this basis was possible and should have prepared his defence accordingly.   50.      Even assuming the applicant's statement was correct that the Presiding Judge had informed defence counsel out of court that he could assume that the Court would envisage merely a conviction for grievous bodily harm and that he would inform him in good time if the position changed, a legitimate expectation could only arise if such information had been given in open court or, if given out of court, if it had been notified on behalf of the whole Court to all those involved in the trial.   However, the applicant did not claim that this had been the case.   He had merely referred to an informal conversation between his defence counsel and the Presiding Judge in which the latter was alleged to have communicated the Criminal Chamber's provisional assessment of the facts and the legal position, but not in such a way that it was plainly possible to regard him as having been empowered to do so by the Criminal Chamber.   No such unofficial assurance was provided for in the law of criminal procedure.   Without official confirmation by the Court, which defence counsel was bound to seek if he wanted to conduct the defence on the assumption that the assurance would be adhered to, such an assurance was not apt to give rise to a legitimate expectation which, if disregarded, would have made the trial unfair.   51.      In the view of the Federal Constitutional Court there was accordingly no need to take evidence concerning the applicant's allegation even if it were to be corroborated by the official statement of the Presiding Judge made for the purpose of the review proceedings.   ("Einer Beweiserhebung über die Behauptung des Beschwerdeführers, für deren Richtigkeit die im Revisionsverfahren abgegebene dienstliche Erklärung des Strafkammervorsitzenden sprechen mag, bedurfte es mithin nicht.")   The Presiding Judge had stated on 19 June 1981: "I cannot now recollect details of out-of-court conversations with defence counsel".   The fact that in the circumstances the failure to abide by the "assurance" - and perhaps even the unauthorised assurance itself - could give rise to objections from the point of view of disciplinary regulations could not found a claim that the constitution had been breached in the criminal proceedings against the applicant.   52.      The Federal Constitutional Court finally observed that there was no indication that the Federal Court of Justice, when examining the applicant's appeal, had disregarded the applicant's plea in this respect, and thus the applicant's constitutional right to be heard. Under constitutional law, the Federal Court was not obliged to give detailed reasons for its decision.   B.       The relevant law and practice in the Federal Republic         of Germany&S   1)       Criminal offences&S   53.      The applicant was charged with and convicted of the crime (Verbrechen) of attempted homicide under Section 212 para. 1 of the German Criminal Code.   This provision reads as follows:           "Anyone who kills a person in circumstances not         amounting to murder shall be punished by not less         than 5 years' imprisonment for homicide."   54.      According to Section 38 of the Criminal Code, the maximum penalty for this crime is 15 years.   55.      The provisions on particularly serious or less serious cases of homicide (Section 212 para. 2 and Section 213), for which different penalties are stipulated, were not applied or considered.   56.      The alternative charge considered in the present case was the criminal offence (Vergehen) of causing grievous bodily harm.   Section 223 para. 1 of the Criminal Code defines the offence of causing bodily harm (Körperverletzung) in the following terms:           "Anyone who physically ill-treats a person or         damages his health ..."           The aggravated offence of causing grievous bodily harm is regulated in Section 223 (a) which stipulates in para. 1:           "Where the bodily harm has been committed by means of         a weapon, in particular a knife or other dangerous         instrument, or by means of a treacherous assault or         by several persons jointly or by treatment likely to         endanger life, the punishment shall be imprisonment         for not more than five years or a fine."   57.      The alternative suggested by the defence was the offence of drunkenness (Vollrausch) which, until 1980, was regulated in Section 330 (a) of the Criminal Code (now Section 323 (a)).   It read as follows:           "1) Anyone who wilfully or by negligence becomes         intoxicated through consuming alcoholic beverages or         other intoxicants shall be punishable by imprisonment         for not more than five years or a fine if in this         state he commits an offence and cannot be punished         for it as such because his criminal responsibility was         precluded by his intoxication or because that possibility         cannot be excluded.           2)   The penalty shall not be more severe than that         attaching to the offence committed in a state of         intoxication."   2)       Conditions for the commission of the offence&S   58.      The offences of homicide and grievous bodily harm are punishable only if committed with intent (Vorsatz, cf.   Section 15 of the Criminal Code) which, according to the case-law, includes dolus eventualis (bedingter Vorsatz).   The intent must concern the result of the offence as defined in the relevant provision of the Criminal Code, i.e. in the case of homicide it must be an intent to kill, in the case of causing bodily harm an intent to occasion physical injury.   59.      The offences are punishable if they have been completed.   In the present case the offence of causing grievous bodily harm would have been completed while this condition clearly was not met as regards the offence of homicide.   The applicant was charged with, and convicted of, attempted homicide.   60.      Section 22 defines an attempt (Versuch) as follows:           "Anyone who, in accordance with his conception of the         act, makes direct preparations for carrying out an         offence shall be guilty of an attempt."   61.      Section 23 further provides that an attempt to commit a crime (i.e. an offence for which the law stipulates a minimal penalty of at least one year imprisonment, cf.   Section 12) shall always be punishable.   However, in such a case the penalty may be mitigated in accordance with the principles of Section 49 of the Criminal Code (see para. 66 below).   62.      In the present case a mitigation of the penalty on this basis was considered, but not applied.   63.      Irrespective of the applicable substantive provision of the Criminal Code, the courts also had to consider the question of the applicant's criminal responsibility.   64.      The applicant could not have been convicted if he had been found lacking criminal responsibility by reason of mental disturbance (Schuldunfähigkeit wegen seelischer Störungen).   In this respect Section 20 of the Criminal Code provides as follows:           "Anyone who when committing an offence is, by reason of         a mental disturbance or a far-reaching disturbance affecting         his awareness or by reason of mental deficiency or some         other serious mental abnormality, incapable of knowing         that he is acting contrary to law or of acting in         accordance with such knowledge shall not be criminally         responsible."   65.      However, in case of diminished criminal responsiblity (verminderte Schuldfähigkeit) a conviction was not excluded.    In this respect Section 21 of the Criminal Code provides as follows:           "Where the capacity of the offender to know that he is         acting contrary to law or to act in accordance with such         knowledge is diminished on one of the grounds set out in         Section 20, the penalty may be reduced in accordance with         Section 49 para. 1."   66.      In a case of mitigation under Section 49 para. 1 the maximum penalty shall be reduced by one quarter (i.e. from 15 years to 11 years and 3 months in a case of homicide, and from 5 years to 3 years and 9 months in a case of grievous bodily harm);   if there is a high minimum penalty of 10 or 5 years (as in the case of homicide) it shall be reduced to two years.   3)       Provisions on the competent court&S   67.      Homicide and grievous bodily harm are both offences which, according to Section 74 para. 1 of the Courts Organisation Act (Gerichtsverfassungsgesetz), come within the jurisdiction of a Criminal Chamber (Strafkammer) of the Regional Court.   However, homicide is included in the list of those offences where, under Section 74 para. 2, the competent Chamber is a Specialised Chamber for Serious Crimes, a so-called "Jury Court" (Schwurgericht).   Grievous bodily harm, on the other hand, is covered by the general clause in Section 74 para. 1, and accordingly is to be dealt with by a normal Chamber of the Regional Court, a so-called "Grand Criminal Chamber" (Grosse Strafkammer).   68.      Both the Specialised Chamber and the normal Chamber have the same composition.   At the trial, they are composed of three professional judges, including the Presiding Judge (Vorsitzender) and two lay assessors (Schöffen)(Section 76 para. 2).   Decisions outside the trial, such as the decision to open the trial proceedings, are taken by only three members including the Presiding Judge (Section 76 para. 1).     4)       Provisions on the Bill of Indictment&S   69.      According to Section 200 para. 1 of the Code of Criminal Procedure, the bill of indictment (Anklageschrift) shall indicate the accused, the criminal act imputed to him, the time and place of its commission as well as the legal elements of the offence and the applicable criminal provisions (the charge = Anklagesatz).   It shall also indicate the means of evidence, the court of trial and the defence counsel.   According to para. 2 the indictment shall further contain the main result of the investigation proceedings.   70.      According to Section 201 para. 1 the Presiding Judge shall communicate the bill of indictment to the accused and invite him to state within a fixed time-limit whether or not he requests the taking of additional evidence before the decision on the opening of the trial proceedings, or whether he wishes to raise objections against the opening of the trial proceedings.   According to para. 2 the decision on such requests or objections lies with the Court, i.e. in the present case the Chamber composed of three members.     5)       Provisions on the admission of the charges (Eröffnungsverfahren)&S   71.      In the Federal Republic of Germany, the trial proceedings in criminal cases are regularly preceded by interim proceedings on the admission of the charges.   72.      According to Section 203 of the Code of Criminal Procedure the Court shall decide to return the accused for trial if according to the results of the investigation (or other preliminary proceedings) there appears to be sufficient suspicion of the accused having committed a criminal offence.   Otherwise the proceedings shall be definitely or provisionally discontinued (Sections 203, 204 and 206a).   In taking the relevant decision, the Court is not bound by the submissions of the prosecution (Section 206).   73.      According to Section 207 para. 1 of the Code of Criminal Procedure the decision to open the trial proceedings shall contain a statement on the admission of the charges and shall indicate the Court where the trial is to take place.   Para. 2 of the same Section provides that the Court may admit the charges subject to certain amendments, including, inter alia, a qualification of the criminal act which differs from the bill of indictment.   It follows from the wording of para. 3 that in such a case the prosecution is not required to submit a new bill of indictment.   74.      Where, as in the present case, the decision is taken by a Regional Court, it may under Section 209 para. 1 of the Code of Criminal Procedure decide to open the proceedings before any Court, except a Court of Appeal.   Under Section 210 para. 1 this decision cannot be challenged by the accused.   However, under Section 210 para. 2 the prosecution may appeal (sofortige Beschwerde) if the Court decides to open the trial proceedings before a Court of inferior rank (Gericht niederer Ordnung) to that suggested by the prosecution.   For the purposes of this provision, a normal Criminal Chamber is regarded as a Court of inferior rank in relation to a Specialised Chamber (cf. paras. 67-68 above).   In such a case, the Court of Appeal's decision on the prosecution's remedy finally determines the competent Court and the charges which shall form the basis of the trial.   75.      The decision on the opening of the trial proceedings shall be notified to the accused not later than his summons to the trial (Section 215).     6)       Relevant provisions on the trial proceedings&S   76.      The trial and its preparation are regulated in Sections 213 et seq. of the Code of Criminal Procedure.   77.      Throughout the trial, the Court may not change its composition (Section 226).   However, the trial may be interrupted (Aussetzung) by the Court proprio motu or at the request of the parties for important reasons (Section 228 para. 1 as interpreted in constant practice).   The proceedings must be resumed on the eleventh day after the interruption at the latest, otherwise