Decision of Court (Fifth Section), April 21, 2015 (case BEZEK v. GERMANY)

JudgeSOMMER U. ; BOGATZ G.
Resolution DateApril 21, 2015
Issuing OrganizationCourt (Fifth Section)

FIFTH SECTION

DECISION

Applications nos. 4211/12 and 5850/12Ahmet BEZEK against Germanyand Sinan BEZEK against Germany

The European Court of Human Rights (Fifth Section), sitting on 21 April 2015 as a Chamber composed of:

             Mark Villiger, President,              Angelika Nußberger,              Boštjan M. Zupančič,              Vincent A. De Gaetano,              André Potocki,              Helena Jäderblom,              Aleš Pejchal, judges,

and Milan Blaško, Deputy Section Registrar,

Having regard to the above applications lodged on 13 January 2012 and 21 January 2012 respectively,

Having deliberated, decides as follows:

THE FACTS

1. The applicants are Turkish nationals. The applicant in the first case, Mr Ahmet Bezek, was born in 1980 and is represented before the Court by Mr U. Sommer, a lawyer practising in Cologne. The applicant in the second case, Mr Sinan Bezek, was born in 1976 and is represented before the Court by Mr G. Bogatz, a lawyer practising in Bendestorf. Both applicants are currently serving a prison sentence in Bremen.

  1. The circumstances of the case

    2. The facts of the case, as submitted by the applicants, may be summarised as follows.

    3. In the night of 5/6 January 2006 a shooting took place in front of a nightclub in the Bremen entertainment district which left several persons seriously injured.

    1. Criminal proceedings against G.L.

    4. On 11 December 2007 a Chamber of the Bremen Regional Court, consisting of the presiding judge S., the judge P., one further professional judge and two lay judges, convicted G.L. of attempted manslaughter, grievous bodily harm and unlawfully carrying a firearm and sentenced him to ten years and six months imprisonment.

    5. Based on G.L.’s confession, which was supported by witness evidence, the Chamber considered that G.L. had started the shooting into a group of people standing in front of the night club, thereby accepting that he might inflict lethal injuries. The Chamber did not attach credibility to G. L.’s submissions that the applicants had not been involved in the shooting incident, but considered that G.L. had committed the offences jointly with the two applicants. Based on witness evidence and an expert examination of bullets found on the site, the Chamber considered that the first applicant had fired at least three shots and the second applicant at least one shot. The Chamber considered that G.L. and the applicants had acted upon a joint plan, resulting in each perpetrator being liable for the acts committed by his accomplices under Article 25 § 2 of the Criminal Code as joint principals (Mittäterschaft, see relevant domestic law, below).

    6. The judgment, which was 151 pages long, inter alia contained the following references to the applicants:

    “All three of them [G.L. and the two applicants] had been equipped with firearms. It was clear to them – even without an express agreement, that they would make use of the weapons they carried if the situation should arise....At that time at the latest witness Ahmed Bezek [the first applicant] carried a silver revolver with a 9 mm calibre and Sinan Bezek [the second applicant] a pistol, calibre 7.65 mm, which had been assembled from various weapon parts (p. 34 of the judgment)...Immediately after the accused had fired the first shot, Ahmet and Sinan Bezek drew their weapons and fired in the direction of the B.club (p. 36)...many persons...found themselves within the shooting range of the applicant and of Ahmed and Sinan Bezek (p. 37)...their [the witnesses’] statement is supported by the fact that the accused and the Bezek brothers [the applicants] actually carried weapons (p. 78). The establishment of the facts relating to the other shooters is based on the credible witness statements given by...[The witness] M. has stated that the accused and witnesses Ahmed and Sinan Bezek each carried a weapon in their hand (p. 100)...These statements were confirmed by the testimony given by witness K. He [reported] that he had seen that Sinan Bezek as well as Ahmet Bezek had carried a weapon. Both had shot very rapidly and had then disappeared (p. 100). ... Witness K. has stated that he had heard two shots before arriving at the scene. Shortly afterwards it had really started. He had seen how Sinan Bezek, Ahmet Bezek and the accused had shot (p. 100). Finally, witness D. had stated that he had seen weapons not only in the hands of the accused, but also in the hands of Ahmet and Sinan Bezek, but could not tell for sure whether these two had shot. The accused’s weapon as well as Sinan Bezek’s weapon was black and did not have a drum (p. 100/101). On the basis of the traces and other evidence it has been established...that the projectile with the casing numbered trace no. 28 has been shot from the weapon that had been fired by Sinan Bezek (pp. 105/106). The establishment of the fact that Sinan Bezek was one of the shooters is compatible with the witness testimony (p. 104)....These two pistols had been used by the accused and Sinan Bezek (p. 106)...Sinan Bezek’s pistol was jammed after the first shot (p. 106). The accused is guilty under Articles....of the Criminal Code of attempted manslaughter, causing serious bodily harm and unlawful carrying of a semi-automatic gun, jointly committed with the brothers Ahmet and Sinan Bezek (p. 130)....According to the established facts, the applicant and the witnesses Ahmet and Sinan Bezek had reached at least a tacit understanding to return to the entry of the “T.” [nightclub] and to use the weapons they carried in the expected confrontation with the M.group (p. 131)...The context of the proceedings demonstrates that each of the three shooters was aware of the fact that the respective other ones were armed (p. 131)...The accused’s firing of the first shot had prompted Sinan and Ahmet Bezek to use their own weapons without delay and without any apparent reason (p. 132).”

    7. When giving an oral summary of the reasons of the judgment, the presiding judge S. also referred to the alleged involvement of the two applicants in the incident.

    2. Criminal proceedings against the applicants

    8. Both applicants were arrested on 6 January 2006 and remained in detention on remand until 21 April 2006. The second applicant was further detained on remand from 17 January 2008 to 28 January 2009 and as from 17 April 2009 until the termination of the criminal proceedings against him.

    9. On 29 February 2008 the Bremen Public Prosecutor issued an indictment against the applicants for attempted manslaughter and violation of the Weapons Act. The Chamber adjudicating the applicants’ case comprised the presiding judge S. and...

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