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FIFTH
SECTION
CASE OF MOOREN v. GERMANY
(Application
no. 11364/03)
JUDGMENT
STRASBOURG
13
December 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Mooren v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 20 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11364/03) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a German national, Mr
Burghard Theodor Mooren (“the applicant”), on 26 March
2003.
- The
applicant, who had been granted legal aid, was represented by Mr D.
Hagmann, a lawyer practising in Mönchengladbach. The German
Government (“the Government”) were represented by their
Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin,
of the Federal Ministry of Justice.
- The
applicant complained that, in the proceedings for review of his
pre-trial detention, the Court of Appeal, by remitting his case back
to the court of first instance instead of quashing the detention
order which it had found not to comply with domestic law, had
unlawfully deprived him of his liberty and had unduly delayed the
judicial review proceedings. Furthermore, he claimed that his defence
counsel had been refused access to the investigation files. He
relied, in particular, on Article 5 of the Convention.
- On
27 October 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963. At the date the application was lodged,
he was living in Mönchengladbach.
1. The District Court's detention order
- On
25 July 2002 the applicant was arrested.
- On
the same day the Mönchengladbach District Court, after hearing
representations from the applicant, ordered his detention on remand.
The applicant was assisted from this point on by counsel. The
District Court found that there was a strong suspicion that the
applicant had evaded taxes on some twenty occasions between 1996 and
June 2002. He had been working as a self-employed commercial agent
for several firms in Germany since 1994 and been running a telephone
service since 2000. In 2001 the company TMA Aachen had paid him
commission amounting to
124,926.22 Deutschmarks (DEM). The court
found that, according to the documents before it at that date, the
applicant was suspected of having evaded turnover taxes of 57,374
euros (EUR), income taxes of
EUR 133,279 and trade taxes of EUR
20,266.
- The
District Court noted that the applicant, who had availed himself of
the right to remain silent, was strongly suspected of tax evasion on
the basis of the business records that had been seized when his home
was searched. He had to be placed in pre-trial detention because of a
danger of collusion (Verdunkelungsgefahr) (see section 112 §
2 no. 3 of the Code of Criminal Procedure – paragraph 41
below). The documents seized were incomplete. There was therefore a
risk that the applicant, if released, might destroy the missing
documents or conceal further business transactions and accounts.
2. The District Court's review of the detention order
- On
7 August 2002 the applicant, represented by counsel, lodged a motion
for review of his detention order (Haftprüfung) with the
Mönchengladbach District Court. His counsel also requested
access to the case files. He argued that he had a right to inspect
the files in order to examine all the facts and evidence on which the
arrest warrant and, in particular, the strong suspicion that an
offence had been committed were based and that domestic law
prohibited the court from considering facts and evidence to which
defence counsel had been refused access pursuant to section 147 §
2 of the Code of Criminal Procedure (see paragraph 44 below).
- On
12 August 2002 the Mönchengladbach Public Prosecutor's Office
informed the applicant's counsel that he was being refused access to
the case files pursuant to section 147 § 2 of the Code of
Criminal Procedure as access would jeopardise the purpose of the
investigation. It added, however, that the public prosecutor in
charge of the case was prepared to inform counsel orally about the
facts and evidence. The applicant's counsel did not take up that
offer.
- On
16 August 2002 the Mönchengladbach District Court heard
representations from the applicant and his defence counsel. The
applicant argued that there was no risk of collusion or of his
absconding. Should the court nevertheless consider that he might
abscond if released he was ready to comply with any conditions
imposed by the court, such as handing over his identity papers. The
applicant's counsel complained that he had still not had access to
the case files.
- By
an order of the same day, the Mönchengladbach District Court,
which had before it the case files of the proceedings, upheld the
arrest warrant. It found that there was still a risk that, if
released, the applicant would tamper with factual evidence or
interfere with witnesses.
The applicant had so far tried to
conceal his true place of residence and other personal details from
the authorities and had acted with the intent to mislead which, in
the particular circumstances of the case, proved that there was a
danger of collusion.
3. The Regional Court's review of the detention order
- Following
the applicant's appeal, which was lodged on
16 August 2002 and
was followed up by detailed reasons on
19 August 2002, the
Regional Court informed the applicant in a letter dated 27 August
2002 that it considered that the risk of his absconding could serve
as a ground for his continued detention. As to his counsel's request
for access to the case files, it stated that he should be informed
orally about the content of the files in the first instance.
- In
a letter dated 2 September 2002, the applicant contested that view.
He claimed, in particular, that in his case mere oral information
about the content of the case files would not be sufficient.
- On
9 September 2002, after hearing representations from the Public
Prosecutor's Office and considering the case files, the
Mönchengladbach Regional Court dismissed the applicant's appeal
against the District Court's decision dated 16 August 2002. It found
that there was a strong suspicion that the applicant had evaded
income, turnover and trade taxes. Furthermore, there was a danger of
his absconding within the meaning of section 112 § 2 no. 2 of
the Code of Criminal Procedure (see paragraph 41 below), as the
applicant had connections in foreign countries and faced a heavy
sentence.
- In
view of defence counsel's refusal to accept the offer made by the
Public Prosecutor's Office to explain the content of the case files
orally, the Regional Court found that it was impossible to assess
whether the information given in this manner would be sufficient. At
the present stage of the proceedings, counsel for the defence could
not, however, claim to be entitled to unlimited access to the
complete case files.
- The
Regional Court's decision was served on the applicant's counsel on 16
September 2002.
4. The Court of Appeal's review of the detention order
- On
16 September 2002 the applicant, represented by counsel, lodged a
further appeal against the detention order. He again claimed that he
had a constitutional right to be given access to the facts and
evidence on which the detention order was based.
- On
17 September 2002 the Mönchengladbach Regional Court decided,
without giving further reasons, not to amend its decision of
9
September 2002. On 18 September 2002 the Mönchengladbach Public
Prosecutor's Office, which had the case files, drafted a report which
was sent to the Düsseldorf Chief Public Prosecutor's Office with
the files the next day.
- On
26 September 2002 the Chief Public Prosecutor's Office, in its
submissions to the Düsseldorf Court of Appeal, stated that it
was not prepared to give the applicant access to the case files. It
argued that it was sufficient for the applicant to be notified of the
overview of the Düsseldorf Tax Fraud Office on the amount of his
income and amount of the taxes evaded in the years in question. The
submissions and the case files reached the Düsseldorf Court of
Appeal on 2 October 2002.
- On
2 October 2002 the applicant sent further observations to the
Düsseldorf Court of Appeal.
- On
9 October 2002 the applicant, who had been sent the submissions of
the Chief Public Prosecutor's Office on 7 October 2002, contested its
arguments. He stated that the overview was merely a conclusion of the
Tax Fraud Office the merits of which he could not examine without
having access to the documents and records on which it was based.
- On
14 October 2002 the Düsseldorf Court of Appeal, on the
applicant's further appeal, quashed the District Court's decision
dated
16 August 2002 and the Regional Court's decision dated 9
September 2002 upholding the applicant's detention, and remitted the
case to the District Court.
- The
Court of Appeal, which had the investigation files before it, found
that the detention order issued by the District Court on 25 July 2002
did not comply with the legal requirements. Therefore, the decisions
taken in the judicial review proceedings by the District Court on 16
August 2002 and by the Regional Court on 9 September 2002 (but not
the detention order of 25 July 2002 itself) had to be quashed.
Pursuant to section 114 § 2 of the Code of Criminal Procedure
(see paragraph 42 below), the facts leading to a strong suspicion
that the accused had committed a particular offence and the reasons
for detention had to be set out in the detention order. In order to
comply with the constitutional rights to be heard and to a fair
trial, the facts and evidence on which the suspicion and the reasons
for the defendant's detention on remand were based had to be
described in sufficient detail to enable the accused to comment on
them and defend himself effectively.
- The
Court of Appeal noted that, in its decisions on the applicant's
detention, the District Court had, however, merely stated that the
applicant was strongly suspected of tax evasion “on the basis
of the business records seized when his home was searched”. It
should, at minimum, have summarised the results of the evaluation of
those records in order to enable the accused to oppose the decision
on detention by making his own submissions or presenting evidence.
This defect had not been remedied in the course of the subsequent
decisions on the applicant's continued detention. As counsel for the
defence had also been refused access to the case files under section
147 § 2 of the Code of Criminal Procedure, these defects
amounted to a denial of the right of the accused to be heard.
- The
Court of Appeal declined to take its own decision on the applicant's
detention itself pursuant to section 309 § 2 of the Code of
Criminal Procedure (see paragraph 43 below) or to quash the detention
order of 25 July 2002, which it considered to be defective in law
(rechtsfehlerhaft), but not void (unwirksam). It stated
that it would only quash the detention order if it was obvious that
there was no strong suspicion that the accused had committed an
offence and that there were no reasons for the arrest. It was for the
District Court to inform the accused of the reasons on which the
suspicion of his having committed an offence were based and to hear
representations from him on that issue. Should the Public
Prosecutor's Office persist, in the interest of its investigations,
in not informing the accused of the reasons, the detention order
would have to be quashed.
- As
a consequence, the applicant remained in custody.
5. Fresh proceedings before the District Court
- On
17 October 2002 the Mönchengladbach Public Prosecutor's Office
requested the District Court to issue a fresh amended detention order
against the applicant.
- On
29 October 2002 the Mönchengladbach District Court again heard
representations from the applicant, his defence counsel, the Public
Prosecutor's Office and an official in charge of investigations at
the Düsseldorf Tax Fraud Office on the applicant's motion for
judicial review of the detention order. The applicant's counsel was
given copies of four pages of the voluminous case files containing an
overview by the Düsseldorf Tax Fraud Office of the amounts of
income and taxes evaded by the applicant between 1991 and 2002.
Relying on the applicant's rights to be heard and to a fair trial,
the applicant's counsel complained that he had not been granted
access to the case files before the hearing.
- The
Mönchengladbach District Court then issued a fresh detention
order against the applicant. It stated that there was a strong
suspicion that the applicant had evaded taxes on some twenty
occasions between 1991 and June 2002. Listing in detail the
applicant's income from his various activities as a self-employed
commercial agent and the amounts of tax payable, the District Court
found that there was a strong suspicion that he had evaded turnover
taxes of DEM 125,231.79, income taxes of
DEM 260,025, solidarity
taxes of DEM 15,240.11 and trade taxes of
DEM 36,930. It based
its suspicion on documents whose content was explained by a tax
official present at the hearing, witness statements of the owners of
the firms the applicant was working for, the applicant's contracts of
employment and the wage slips and commission statements that had been
issued by the firms.
- The
District Court further found that there was a risk of the applicant's
absconding, which was a ground for detention under
section 112 §
2 no. 2 of the Code of Criminal Procedure. He faced a lengthy prison
sentence which could no longer be suspended on probation, had not
notified the authorities of his place of residence for several years
and had claimed that he was living in the Netherlands.
- By
an order of the same day, the Mönchengladbach District Court
decided to suspend the execution of the arrest warrant on condition
that the applicant, who in the meantime had complied with his duty to
inform the authorities of his address, informed the court of every
change of address, complied with all summonses issued by the court,
the Public Prosecutor's Office and the police, and reported to the
police three times a week.
It suspended the execution of the
order to release the applicant at the request of the Public
Prosecutor's Office, which had immediately lodged an appeal.
6. Renewed proceedings before the Regional Court and
further developments
- On
7 November 2002, after hearing representations from the applicant and
the Public Prosecutor's Office, the Mönchengladbach Regional
Court dismissed the applicant's appeal against the detention order.
It likewise dismissed the appeal lodged by the Public Prosecutor's
Office against the decision to suspend the execution of the detention
order on the additional conditions that the applicant hand over his
identity papers to the Public Prosecutor's Office and deposit DEM
40,000 as security.
- Having
deposited the security, the applicant was released from prison on 7
November 2002.
- On
8 November 2002 the applicant lodged a further appeal against the
Regional Court's decision, complaining that his counsel had still not
been granted access to the case files.
- By
a letter dated 18 November 2002, the Mönchengladbach Public
Prosecutor's Office granted the applicant's counsel access to the
case files. It stated that it had intended to send the files to him
at an earlier date. However, this had not been possible as the files
had been at the Regional Court and had only recently been returned to
the Public Prosecutor's Office. The applicant's counsel received the
files for inspection on
20 November 2002. The applicant withdrew
his further appeal on
10 December 2002.
7. Proceedings before the Federal Constitutional Court
- On
23 October 2002 the applicant lodged a complaint with the Federal
Constitutional Court against the decision of the Düsseldorf
Court of Appeal dated 14 October 2002 and the detention order issued
by the Mönchengladbach District Court on 25 July 2002. In his
submission, his rights to liberty, to be heard in court and to be
informed promptly by a judge of the reasons for his detention on
remand as well as his rights to be heard within a reasonable time and
to a fair trial as guaranteed by the Basic Law had been violated. He
argued in particular that his right to liberty, the deprivation of
which was only constitutional if it was in accordance with the law,
had been breached by his illegal detention on the basis of a void
detention order. The complete refusal to allow his defence counsel
access to the case files pursuant to section 147 § 2 of the Code
of Criminal Procedure had violated his right to be heard in court as
guaranteed by Article 103 § 1 of the Basic Law (see paragraph 45
below) and his right to liberty under Article 104 § 3 of the
Basic Law (see paragraph 46 below). The impugned decisions
disregarded both the case-law of the Federal Constitutional Court and
the Court's case-law as laid down in its judgments of 13 February
2001 in the cases of Garcia Alva, Lietzow and Schöps
v. Germany. The Court of Appeal's refusal to quash the detention
order and to take a decision itself and its decision to remit the
case to the District Court instead had also breached his right to a
fair hearing within a reasonable time.
- On
4 and 11 November 2002 the applicant extended his constitutional
complaint to include the decisions of the Mönchengladbach
District Court dated 29 October 2002 and the decision of the
Mönchengladbach Regional Court dated 7 November 2002.
- On
22 November 2002 the Federal Constitutional Court, without giving
further reasons, declined to consider the applicant's constitutional
complaint against the detention orders issued by the Mönchengladbach
District Court on 25 July 2002 and 29 October 2002, the decision of
the Mönchengladbach Regional Court dated 7 November 2002 and the
decision of the Düsseldorf Court of Appeal dated 14 October
2002.
8. Further developments
- On
9 March 2005 the Mönchengladbach District Court convicted the
applicant on eight counts of tax evasion and sentenced him to a total
of one year and eight months' imprisonment suspended on probation.
The court found that the applicant, who had confessed to the
offences, had evaded turnover taxes of DEM 129,795, income taxes of
DEM 344,802 and trade taxes of DEM 55,165.
II. RELEVANT DOMESTIC LAW
1. Code of Criminal Procedure
- Sections
112 et seq. of the Code of Criminal Procedure
(Strafprozessordnung) concern detention on remand. Pursuant to
section 112 § 1 of the Code, a defendant may be detained on
remand if there is a strong suspicion that he has committed a
criminal offence and if there are grounds for arresting him. Grounds
for arrest will exist where certain facts warrant the conclusion that
there is a risk of his absconding (section 112 § 2 no. 2)
or of collusion (section 112 § 2 no. 3).
- According
to section 114 §§ 1 and 2 of the Code of Criminal
Procedure, detention on remand is ordered by a judge in a written
arrest warrant. The arrest warrant names the accused, the offence of
which he is strongly suspected, including the time and place of its
commission, and the grounds for the arrest. Moreover, the facts
establishing the grounds for the strong suspicion that an offence has
been committed and for the arrest must be set out in the arrest
warrant unless national security would thereby be endangered.
- Under
section 117 § 1 of the Code of Criminal Procedure, remand
prisoners may ask at any time for judicial review (Haftprüfung)
of the decision to issue an arrest warrant or for the warrant to be
suspended. They may lodge an appeal under section 304 of the Code of
Criminal Procedure (Haftbeschwerde) against a decision
ordering their (continued) detention and a further appeal (weitere
Beschwerde) against the Regional Court's decision on the appeal
(section 310 § 1 of the Code of Criminal Procedure). If the
appeal court considers the appeal against the (continued) detention
to be well-founded, it will take a decision on the merits at the same
time (section 309 § 2 of the Code of Criminal Procedure).
However, according to the domestic courts' case-law, a detention
order which does not comply with the duty to set out the grounds for
suspecting the accused of an offence is not void, but merely
defective in law. If, in such a case, the prosecution also refused
access to the case file, the defective reasoning amounts to a refusal
to hear representations from the defendant. In these circumstances,
the court of appeal – by way of an exception to section 309
§ 2 of the Code of Criminal Procedure – may remit the
case to the district court (see Berlin Court of Appeal, no. 5 Ws
344/93, decision of 5 October 1993, Strafverteidiger (StV)
1994, pp. 318-319; compare also Karlsruhe Court of Appeal, no. 3 Ws
196/00, decision of 26 September 2000, StV 2001,
pp. 118-120, to which the Düsseldorf Court of Appeal
referred in the present case).
- Section
147 § 1 of the Code of Criminal Procedure provides that defence
counsel is entitled to consult the files which have been or will be
presented to the trial court, and to inspect the exhibits. Paragraph
2 of this provision allows access to part or all of the files or to
the exhibits to be refused until the preliminary investigation has
ended if it might otherwise be at risk. At no stage of the
proceedings may defence counsel be refused access to records
concerning the examination of the accused, acts in the judicial
investigation at which defence counsel was or should have been
allowed to be present or expert reports (section 147 § 3 of the
said Code). Pending the termination of the preliminary investigation,
it is for the Public Prosecutor's Office to decide whether to grant
access to the files or not; thereafter it is for the president of the
trial court (section 147 § 5). An accused who is in detention is
entitled to seek judicial review of a decision of the Public
Prosecutor's Office to refuse access to the files (ibid.).
2. Provisions of the Basic Law
- According
to Article 103 § 1 of the Basic Law every person involved in
proceedings before a court is entitled to be heard by that court
(Anspruch auf rechtliches Gehör).
- Article
104 § 3 of the Basic Law provides that every person
provisionally detained on suspicion of having committed a criminal
offence must be brought before a judge no later than the day
following his arrest; the judge must inform him of the reasons for
the arrest, hear representations from him and give him an opportunity
to raise objections. The judge must then, without delay, either issue
a written arrest warrant setting out the grounds therefor or order
the detainee's release.
THE LAW
I. THE DETENTION ORDER AND THE SUBSEQUENT PROCEEDINGS
- The
applicant complained that the Court of Appeal had failed to quash the
District Court's initial detention order of 25 July 2002 and to
release him from prison even though it had found that the detention
order was unlawful. By remitting the case to the District Court, the
Court of Appeal had unnecessarily delayed the proceedings for
judicial review of his detention order, which thus had not been
terminated within a reasonable time. He relied on Articles 5 and 6 of
the Convention.
- The
Government contested the applicant's view.
- The
Court considers that the applicant's complaints fall to be examined
under Article 5 of the Convention alone, which, in so far as
relevant, reads:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
A. Admissibility
1. The parties' submissions
- The
Government argued that several reasons existed for saying that the
applicant had failed to exhaust domestic remedies as required by
Article 35 § 1 of the Convention in respect of this part of the
application. The applicant's constitutional complaint to the Federal
Constitutional Court, which was an effective remedy in respect of the
duration of criminal proceedings, was inadmissible for several
reasons, even though that court had not expressly stated this in its
decision. The applicant had failed to show that he still had a legal
interest in the Constitutional Court's decision on the speediness of
the judicial review of his detention order after the Regional Court's
decision of 7 November 2002. He had also failed sufficiently to
substantiate a violation of his right to judicial review of his
detention order within a reasonable time in his constitutional
complaint. Moreover, in so far as the applicant also contested the
District Court's decision of 29 October 2002 and the Regional Court's
decision of 7 November 2002 he had failed to pursue his further
appeal to the Düsseldorf Court of Appeal. He had not complained
about the length of the judicial review proceedings as a whole before
the Federal Constitutional Court, but only about the Court of
Appeal's decision of 14 October 2002 to remit the case to the
District Court. In addition, he had not requested a reduction in his
prison sentence to compensate for the allegedly excessive length of
the proceedings for judicial review of the detention order.
- The
applicant contested this view. He argued that his constitutional
complaint had not been inadmissible. Had it been, the Federal
Constitutional Court would have expressly said so. He had shown in
his complaint that despite his release from custody, he still had a
legal interest in the Constitutional Court's ruling. Likewise, he had
duly complained about the duration of the judicial review proceedings
as a whole, and particularly about the remittal of the case by the
Court of Appeal to the court of first instance. He said that the
Government had also failed to explain which motion he should have
brought in the course of the main criminal proceedings in order to
complain about the excessive length of the proceedings for judicial
review of the detention order. It was for the criminal courts
themselves to secure ex officio the compliance of the
proceedings with human rights.
2. The Court's assessment
- The
Court notes that, according to the Government, the applicant failed
to exhaust domestic remedies with respect to the conduct of the
judicial review proceedings as a whole as he only objected to the
remittal of the case by the Court of Appeal to the court of first
instance. In the Government's submission, he did not complain about
the proceedings until the Court of Appeal's decision or pursue the
renewed judicial review proceedings before the Court of Appeal.
- In
view of the Government's objections, the Court finds it necessary
first to determine the scope of the applicant's complaints before it.
The applicant claimed that his detention had been illegal as it had
been based on an unlawful detention order and that the Court of
Appeal, by remitting the case to the District Court, had
unnecessarily delayed the proceedings for judicial review, which
therefore were not terminated within a reasonable time. It is true
that, as submitted by the Government, the applicant thus considered
the procedure followed by the Court of Appeal to be at the root of
the delay caused, as the proceedings had to restart in the court of
first instance. The conduct of the proceedings by the Court of Appeal
cannot, however, be examined in the abstract, but must be considered
in the context of the judicial review proceedings as a whole,
including both the conduct of the proceedings up to that court's
decision and the consequences that decision had on the continuation
of the proceedings. The Court is satisfied that the applicant raised
his complaint about the conduct of the judicial review proceedings in
the manner that has already been referred to in his complaint to the
Federal Constitutional Court. Therefore, the Government's plea of
non-exhaustion of domestic remedies must be dismissed in this
respect.
- As
to the Government's objection that the applicant's constitutional
complaint was inadmissible as he had both failed to substantiate his
complaint sufficiently and to show a legal interest in the
Constitutional Court's decision on the speediness of the judicial
review proceedings, the Court observes that the Federal
Constitutional Court declined to consider the applicant's complaint
without giving any reasons for its decision. As the Court has already
found in comparable cases (see Süss v. Germany (dec.),
no. 63309/00, 13 October 2005; Petersen v. Germany
(dec.), nos. 38282/97 and 68891/01, 12 January 2006 and, a
fortiori, Uhl v. Germany, no. 64387/01, 6 May 2004),
it is not the function of the Court in such circumstances to
substitute itself for the Federal Constitutional Court and to
speculate why that court decided not to admit the applicant's
complaint. It is notably not for the Court to determine whether or
not the Constitutional Court considered or should have considered the
applicant's complaint as insufficiently substantiated or as lacking a
legal interest and therefore as inadmissible. The Court concludes
that the Government's objection of failure to exhaust domestic
remedies in this respect must likewise be dismissed.
- The
Government pleaded, lastly, that the applicant had not exhausted
domestic remedies in the judicial review proceedings at issue because
he had not sought a reduction in his prison sentence in the (main)
criminal proceedings to compensate for the allegedly excessive length
of the review proceedings. The Court notes that the applicant pursued
the proceedings for judicial review of his detention order, which are
the only proceedings at issue before the Court, to a conclusion in
that he obtained a decision of the Federal Constitutional Court on 22
November 2002. The main criminal proceedings were not part of the
proceedings at issue here. It follows that the Government's objection
cannot be upheld in this respect either.
- The
Court notes that the applicant's complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
B. Merits
1. Complaint concerning the lawfulness of the detention
a. The parties' submissions
- The
applicant argued that he had been deprived of his liberty contrary to
Article 5 § 1. In its decision of 14 October 2002 the Court of
Appeal had ordered his detention to continue even though it
considered the original detention order of 25 July 2002 to be
unlawful.
- In
the Government's submission, the applicant's detention was lawful and
in accordance with a procedure prescribed by law. They conceded that
the arrest warrant of 25 July 2002 did not comply with the formal
requirements of section 114 § 2 of the Code of Criminal
Procedure, as had been found by the Court of Appeal on 14 October
2002. However, the substantive requirements for issuing the warrant
had been met and the Mönchengladbach District Court had issued a
new warrant on 29 October 2002 which complied with the procedural
requirements of the Code of Criminal Procedure. According to an
exception to section 309 § 2 of the Code of Criminal Procedure
introduced in the case-law, courts of appeal were entitled to remit a
case to the court of first instance if there was a procedural error
which the court of appeal could not correct itself.
b. The Court's assessment
i. Relevant principles
- When
stipulating that detention must be “lawful” and “in
accordance with a procedure prescribed by law”, the Convention
essentially refers back to national law and states the obligation to
conform to the substantive and procedural rules thereof, but it
requires in addition that any deprivation of liberty should be
consistent with the purpose of Article 5, namely to protect
individuals from arbitrariness (see, inter alia, Bouamar v.
Belgium, judgment of 29 February 1988, Series A no. 129, p. 20, §
47; Erkalo v. the Netherlands, judgment of 2 September 1998,
Reports of Judgments and Decisions 1998-VI, p. 2477, §
52; and Steel and Others v. the United Kingdom, judgment of 23
September 1998, Reports 1998-VII, p. 2735, § 54).
- Where
the Convention refers directly back to domestic law, as in Article 5,
compliance with such law is an integral part of the Contracting
States' “engagements” and the Court is accordingly
competent to satisfy itself of such compliance. The scope of its task
in this connection, however, is subject to limits inherent in the
logic of the European system of protection, since it is in the first
place for the national authorities, notably the courts, to interpret
and apply domestic law (see Kemmache v. France (no. 3),
judgment of 24 November 1994, Series A no. 296-C, pp. 86-87, § 37;
and Benham v. the United Kingdom, judgment of 10 June 1996,
Reports 1996-III, p. 753, § 41).
- A
period of detention will in principle be lawful if it is carried out
pursuant to a court order. A subsequent finding that the court erred
under domestic law in making the order will not necessarily
retrospectively affect the validity of the intervening period of
detention (compare Bozano v. France, judgment of 18 December
1986, Series A no. 111, pp. 23 and 24, § 55 and Benham,
cited above, p. 753, § 42).
ii. Application of those principles to the
present case
- The
Court finds that the applicant's pre-trial detention was ordered for
the purpose of bringing him before the competent legal authority on
reasonable suspicion that he was guilty of tax evasion. Accordingly,
his detention falls under Article 5 § 1 (c) of the Convention.
- It
remains to be established whether the applicant's detention, in view
of the Court of Appeal's finding and the referral of the case back to
the court of first instance, was lawful and in accordance with a
procedure prescribed by law within the meaning of Article 5 § 1.
The Court notes that the Court of Appeal itself found in its decision
of 14 October 2002 that the detention order of 25 July 2002 failed to
comply with the formal requirements of section 114 § 2 of the
Code of Criminal Procedure. However, this finding did not, according
to the Court of Appeal, render the initial detention order of 25 July
2002 void and did not retrospectively render the applicant's
detention from 25 July 2002 until 14 October 2002 unlawful. According
to the case-law of the domestic courts (see paragraph 43 above),
there was a distinction between detention orders – such as the
one in the applicant's case – which, though defective on formal
grounds, remained a valid basis for detention until replaced, and
orders which – notably for lack of compliance with the
substantive requirements of the provisions on pre-trial detention –
were void. As a consequence, the applicant's detention from 25 July
2002 until the fresh detention order of 29 October 2002, which
was issued in compliance with the formal requirements of section 114
§ 2 of the Code of Criminal Procedure, was not unlawful under
German law, as it was based on the initial detention order of 25 July
2002. It being in the first place for the national authorities to
interpret domestic law, the Court is prepared to accept that the
applicant's pre-trial detention remained lawful under domestic law
and in accordance with a procedure prescribed by law even after the
Court of Appeal considered the initial detention order to have been
defective for lack of sufficient reasons.
- For
the applicant's detention to comply with Article 5 further requires
the absence of arbitrariness. In this connection, the Court notes
that the Court of Appeal's decision not to rule on the merits of the
applicant's request for review of his detention order itself, but to
remit the case to the court of first instance contrary to the wording
of section 309 § 2 of the Code of Criminal Procedure, led to
uncertainty. However, the Court of Appeal's finding that the
applicant had to be informed by the court of first instance of the
reasons for suspecting him of an offence and had to be allowed to
make representations on that subject necessitated practical
arrangements to be made. In these circumstances, the lapse of time
between the Court of Appeal's decision and the issuing of the new
detention order on 29 October 2002 cannot be considered as rendering
the applicant's detention arbitrary (compare also Winterwerp v.
the Netherlands, judgment of 24 October 1979, Series A no. 33, p.
21, § 49 and Erkalo, cited above, p. 2478, § 57).
- Consequently,
there has been no violation of Article 5 § 1 of the Convention.
2. Complaint of the lack of a speedy judicial review
a. The parties' submissions
- The
applicant claimed that the decisions on his request for judicial
review of his detention order were not taken within a reasonable time
as required by Article 6 § 1 of the Convention. In particular,
on 14 October 2002 the Düsseldorf Court of Appeal remitted the
case to the District Court, instead of taking a decision itself on
his further appeal. As the Court of Appeal itself found, the District
Court's initial detention order of 25 July 2002 was not lawful. The
Court of Appeal should therefore have quashed that detention order
and ordered the applicant's release. Its failure to do so had
unnecessarily delayed the review proceedings.
- The
Government submitted that the lawfulness of the applicant's detention
had been decided speedily in the judicial review proceedings before
the German courts as required by Article 5 § 4. The proceedings,
which involved complex charges of tax evasion, had been terminated
speedily by the Mönchengladbach District Court and the
Mönchengladbach Regional Court. In particular, in view of the
speedy decision-making process, the delay of one week between the
Regional Court's decision and the day the decision was served on the
applicant's counsel did not render the proceedings as a whole
unreasonably slow. The Government further argued that in view of the
necessary involvement of the Chief Public Prosecutor's Office, the
proceedings before the Düsseldorf Court of Appeal had still been
terminated quickly, in twenty-eight days. The Mönchengladbach
District Court, to which the case had been remitted, had then issued
a fresh detention order in only two weeks.
- The
Government conceded that there had been a delay in the proceedings
owing to the fact that the initial detention order had not been
issued in the form prescribed by law, which led to the case being
remitted to the District Court. However, as the subsequent
proceedings had been conducted very speedily before the District
Court and the Regional Court, they still complied with the
requirements of Article 5 § 4. In the present case, the Court of
Appeal had considered that there had been a procedural error which it
could not correct itself as the applicant had been denied the right
to make representations. As it had remitted the case to the District
Court, the applicant had retained a right of appeal to two higher
courts.
b. The Court's assessment
i. Relevant principles
- The
Court reiterates that Article 5 § 4, in guaranteeing to detained
persons a right to institute proceedings to challenge the lawfulness
of their deprivation of liberty, also proclaims their right,
following the institution of such proceedings, to a speedy judicial
decision concerning the lawfulness of detention and ordering its
termination if it proves unlawful (see Musiał v. Poland
[GC], no. 24557/94, § 43, ECHR 1999-II; Baranowski v. Poland
[GC], no. 28358, § 68, ECHR 2000-III; and G.B. v.
Switzerland, no. 27426/95, § 32, 30 November
2000). The question whether the right to a speedy decision has been
respected must – as is the case for the “reasonable time”
stipulation in Articles 5 § 3 and 6 § 1 of the Convention –
be determined in the light of the circumstances of each case (see
G.B. v. Switzerland, cited above, § 33; and Rehbock v.
Slovenia, no. 29462/95, § 84, ECHR 2000-XII).
ii. Application of those principles to the
present case
- As
to whether the applicant received a speedy decision by a court in the
proceedings reviewing the lawfulness of his detention as required by
Article 5 § 4, the Court notes that the period to be taken into
consideration started on 7 August 2002 when the applicant filed his
request for judicial review of the detention order. In view of the
fact that the applicant's complaint essentially concerns the Court of
Appeal's decision to remit the case to the court of first instance
instead of taking its own decision on the lawfulness of the detention
order, the period under consideration must be considered as having
ended on 29 October 2002, when the District Court (rather than the
Court of Appeal) issued a fresh detention order against the
applicant. Thus, two months and twenty-two days elapsed between the
applicant's request and the District Court's decision.
- Having
regard to the various stages of the judicial review procedure, the
Court observes that when the applicant lodged his further appeal with
the Court of Appeal on 16 September 2002, the proceedings had been
pending before the District Court for nine days and before the
Regional Court for thirty-one days. In the latter proceedings, there
had notably been a delay of seven days between the date on which the
decision was taken by the Regional Court and that on which it was
served on the applicant's counsel. The proceedings then stood pending
for twenty-eight days before the Court of Appeal, including the
period of fourteen days it had taken to obtain the case-files and
consult the Chief Public Prosecutor's Office. The Court of Appeal
quashed the previous decisions taken in the judicial review
proceedings on 14 October 2002 and decided to remit the case to the
court of first instance without taking a decision on the merits of
the applicant's request. As a consequence, another fifteen days
elapsed before the District Court gave its decision on the merits of
the applicant's request.
- The
Court observes that there were no substantial periods of inactivity
in the judicial review proceedings concerning the applicant's
detention on suspicion of a number of tax evasion offences. However,
where an individual's personal liberty is at stake, the Court has set
up strict standards concerning the States' compliance with the
requirement that the decision on the lawfulness of a person's
detention be taken “speedily”. In the case of Rehbock
(cited above, §§ 84-88), for example, the Court found
that a period of twenty-three days for a domestic court to decide a
remand prisoner's request for release failed to comply with the
requirement of a speedy decision as guaranteed by Article 5 § 4.
Similarly, the Court held in the case of G.B. v. Switzerland
(cited above, §§ 27, 32-39) that in proceedings brought by
a remand prisoner for release, in which it took the Federal Attorney
and the Federal Court a total of thirty-two days to take their
decision on the applicant's request, the review had not been “speedy”
within the meaning of Article 5 § 4.
- At
the time the Court of Appeal took its decision, the judicial review
proceedings had already been pending for two months and seven days
before the domestic courts. As that court quashed all the decisions
that had been taken up to that point in the judicial review
proceedings and remitted the case to the District Court, it was only
two months and twenty-two days after lodging his request that the
applicant, after making due representations, obtained a decision that
complied with the requirements of domestic law on the merits of his
request. Having regard to the time it took for the Court of Appeal to
reach its decision, the Court finds that the remittal caused an
unjustified delay in the proceedings. It notes in this connection
that the Government argued that, by remitting the case, the Court of
Appeal had preserved the applicant's right to make representations
before two levels of jurisdiction. However, as the applicant could,
according to section 117 § 1 of the Code of Criminal Procedure
(see paragraph 43 above), restart judicial review proceedings at any
time, the Court is not convinced that this justified the delays
caused by the remittal.
- There
has, therefore, been a violation of Article 5 § 4 of the
Convention.
II. THE REFUSAL TO GRANT THE APPLICANT'S COUNSEL ACCESS TO
THE CASE FILES
- The
applicant further complained that in the proceedings for the review
of his detention pending trial, his counsel was refused access to the
case files, which made it impossible for him to defend himself
effectively. He relied on Articles 5 and 6 of the Convention.
- The
Government contested that argument.
- The
Court considers that this complaint falls to be examined under
Article 5 of the Convention alone which, in so far as relevant,
provides:
“4. Everyone who is deprived of his
liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be decided speedily by
a court and his release ordered if the detention is not lawful.”
A. Admissibility
1. The parties' submissions
- The
Government argued that the applicant had not exhausted domestic
remedies as required by Article 35 § 1 of the Convention in
respect of this part of the application either. He had failed to
lodge with the Regional Court a separate motion for judicial review
of the Public Prosecutor's decision not to grant his counsel access
to the case files pursuant to section 147 § 5, second sentence,
of the Code of Criminal Procedure. Even though the Regional Court had
found that the District Court's detention order did not have to be
quashed despite the refusal to grant access to the case files, such a
separate motion for judicial review of the Public Prosecutor's
decision not to grant access to the case files would not necessarily
have been futile, and the applicant could subsequently have
complained to the Federal Constitutional Court.
- In
the Government's submission, this part of the application was,
moreover, incompatible ratione personae with the Convention as
the applicant had lost his status as a victim of a violation of the
Convention within the meaning of Article 34 of the Convention. In its
decision of 14 October 2002, the Düsseldorf Court of Appeal
had expressly found that the refusal to grant the applicant's counsel
access to the case files, at least in connection with the lack of a
precise statement of the underlying reasons for the arrest and the
evidence relied on in the detention order of 25 July 2002, had
breached the applicant's right to be heard. The applicant had been
granted redress in that an arrest warrant complying with the
statutory requirements had been issued on 29 October 2002. Moreover,
his counsel had been granted access to the case files at a time when,
despite the applicant's conditional release from detention, the
proceedings for judicial review of his detention order were still
pending.
- The
applicant contested that view. As to the Government's plea of
non-exhaustion, he argued that it had not been necessary for him to
lodge a separate request for judicial review of the prosecution's
decision not to grant him access to the case files pursuant to
section 147 § 5 of the Code of Criminal Procedure. He had
applied for his arrest warrant to be quashed, arguing that he had not
had access to the case files. His request for judicial review of the
Public Prosecutor's decision not to grant his counsel access to the
files had therefore been included in his request for judicial review
of the detention order. Accordingly, the Regional Court, which would
also have had jurisdiction to consider a separate motion for judicial
review under section 147 § 5 of the Code of Criminal Procedure,
had addressed his request for access to the case files in its
decision reviewing the detention order.
- The
applicant further denied that he had lost his victim status as a
result of the Court of Appeal's decision of 14 October 2002. The
Court of Appeal had found the detention order to be defective as he
had not been properly informed of the facts and evidence on which his
detention was based. However, the court's finding had not had any
consequences, as he had not been released from prison and his counsel
had not been granted access to the case files as requested without
delay.
2. The Court's assessment
- As
to the Government's plea of non-exhaustion, the Court reiterates that
the rule of exhaustion of domestic remedies referred to in Article 35
§ 1 of the Convention obliges applicants to use first the
remedies that are available and sufficient in the domestic legal
system to afford redress for the violation complained of (compare
Airey v. Ireland, judgment of 9 October 1979, Series A no. 32,
p. 11, § 19; Iatridis v. Greece [GC], no. 31107/96, § 47,
ECHR 1999-II and İlhan v. Turkey [GC], no. 22277/93, §
58, ECHR 2000-VII). It is incumbent on the Government claiming
non-exhaustion to convince the Court that the remedy was an effective
one available in theory and in practice at the relevant time, that is
to say, that it was accessible, was capable of providing redress in
respect of the applicant's complaints and offered reasonable
prospects of success. However, once this burden of proof has been
discharged, it falls to the applicant to establish that the remedy
advanced by the Government was in fact exhausted or was for some
reason inadequate and ineffective in the particular circumstances of
the case or that there existed special circumstances absolving him or
her from the requirement (see Akdivar and Others v. Turkey,
judgment of 19 September 1996, Reports 1996-IV, p. 1211,
§ 68; and Horvat v. Croatia, no. 51585/99, § 39,
ECHR 2001-VIII). Thus, an applicant cannot be criticised for not
having made use of a legal remedy which would have been directed to
essentially the same end as the proceedings the applicant pursued to
a conclusion and which moreover would not have had a better prospect
of success (compare Iatridis, cited above, § 47; and
Miailhe v. France (No. 1), judgment of 25 February 1993,
Series A no. 256-C, p. 87, § 27).
- The
Court observes that the applicant in the present case primarily
sought to have the lawfulness of his detention reviewed. It was in
this connection, namely in the proceedings for judicial review of his
detention order, that he argued, inter alia, that he was not
in a position effectively to defend himself without his counsel being
granted access to the case files, and that, therefore, his right to
be heard and his right to liberty were breached. Accordingly, in the
course of these review proceedings, which he pursued to a conclusion,
the Regional Court, as well as the Court of Appeal, dealt with the
applicant's complaint about the refusal to grant his counsel access
to the case files. He also raised this issue in his complaint to the
Federal Constitutional Court.
- The
Court notes that additional proceedings for judicial review of the
decision not to grant the applicant's counsel access to the case
files under section 147 § 5 of the Code of Criminal Procedure
would not have been capable of providing redress in respect of the
alleged unlawfulness of the detention order. Such proceedings could
therefore only have afforded redress in respect of one aspect of the
violation the applicant complained of. Moreover, both the Regional
Court, which would have had jurisdiction to hear a motion under
section 147 § 5 of the Code of Criminal Procedure, and the
Federal Constitutional Court were called to examine the applicant's
complaint about the refusal to let his counsel inspect the files in
the proceedings for judicial review of the detention order. In these
circumstances, the Court is not convinced by the Government's
submission that an additional motion for judicial review under
section 147 § 5 of the Code of Criminal Procedure would have
been an effective remedy offering reasonable prospects of success
against the refusal to grant the applicant's counsel access to the
files or, therefore, one which the applicant should have exhausted.
The fact that the applicant withdrew his further appeal on
10 December 2002 (see paragraph 36 above) does not warrant a
different conclusion on the question of exhaustion of domestic
remedies. Given that the applicant had been released, his counsel had
been granted access to the case files and the Court of Appeal and the
Federal Constitutional Court had both already given a decision on the
question of his counsel's right of access to the files, the Court
does not accept that pursuing his further appeal to a conclusion and
obtaining another decision of the Federal Constitutional Court were
remedies which were capable of providing redress and offered
reasonable prospects of success in the circumstances of the case. The
Government's objection must therefore be dismissed in this respect.
- The
Government further raised the objection that this part of the
application was incompatible ratione personae with the
Convention as the applicant has lost his status as a victim of a
violation of the Convention. The Court reiterates that Article 34
requires that an individual applicant should be able to claim to be
actually affected by the measure of which he complains. In
particular, Article 34 may not be used to found an action in the
nature of an actio popularis (see Klass and Others v.
Germany, judgment of 6 September 1978, Series A no. 28, pp.
17-18, § 33; and Očić v. Croatia (dec.), no.
46306/99, ECHR 1999-VIII). If an individual cannot claim to be
personally affected by the act or omission in question, he cannot
claim to be the victim of a violation of a Convention right and his
claim is incompatible ratione personae with the Convention
(compare Očić, cited above; and Lustgarten v. the
United Kingdom (dec.), no. 69189/01, 30 April 2002).
- The
Court notes that in the present case the applicant himself was
affected by the measure he complains of, namely that neither he nor
his counsel had been granted access to the case-files while in
detention. The Court observes that the question whether, as claimed
by the Government, the Court of Appeal can be considered as having
acknowledged a breach of Article 5 § 4 of the Convention and
granted the applicant redress therefor depends on the substantive
scope of the applicant's right under that Article to fairness in the
judicial review proceedings that were still pending at the time as a
whole. It therefore concerns the merits of the applicant's complaint.
It follows that the Government's objection cannot be upheld in this
respect either.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- In
the applicant's view, the proceedings for judicial review of his
detention order were unfair as the Public Prosecutor's Office had
refused his defence counsel access to the case files throughout his
detention. This had violated the principle of equality of arms and
had made it impossible for him effectively to defend himself by
commenting cogently on the accusations against him. Not least because
of the complexity of proceedings concerning suspected tax evasion it
would have been insufficient for his counsel to be informed merely
orally about the content of the case files by the Public Prosecutor's
Office or to be handed over copies of just a few pages of the files.
The prosecution could not be expected to inform defence counsel of
the material that would militate against the applicant's pre-trial
detention. Therefore, the defence had a right of access to the entire
case files even at that stage of the proceedings.
- The
Government argued that the refusal to grant the applicant's counsel
access to the case files had not breached Article 5 § 4 of the
Convention. At the time the applicant's proceedings for judicial
review were pending, the District Court had already granted search
warrants for fifteen other premises. The success of the execution of
those warrants would have been jeopardised if the applicant's lawyer
had been granted access to the entire case files.
- In
the circumstances of the present case, the applicant could have
mounted an effective challenge against the detention order simply by
instructing his counsel to agree to be informed orally by the Public
Prosecutor's Office of the essential facts and items of evidence
contained in the case files. The suspicion against the applicant was
grounded essentially on business documents that had been seized at
the applicant's home and at the firms he was working for, and only to
a negligible degree on witness statements. The case therefore had to
be distinguished from the cases of Schöps, Lietzow and
Garcia Alva v. Germany, in which an oral summary, notably of
witness statements by the prosecution authorities, was not considered
sufficient to comply with the requirements of Article 5 § 4.
2. The Court's assessment
a. Relevant principles
- The
Court reiterates that in view of the dramatic
impact of deprivation of liberty on the fundamental rights of the
person concerned, proceedings conducted under Article 5 § 4 of
the Convention should in principle also meet, to the largest extent
possible under the circumstances of an ongoing investigation, the
basic requirements of a fair trial as guaranteed by Article 6 of the
Convention (see, inter alia,
Schöps v. Germany,
no. 25116/94, § 44, ECHR 2001-I; Lietzow
v. Germany, no. 24479/94, § 44,
ECHR 2001-I; Garcia Alva v. Germany,
no. 23541/94, § 39, 13 February 2001; Shishkov
v. Bulgaria, no. 38822/97, §
77, ECHR 2003-I; and Svipsta v.
Latvia, no. 66820/01, § 129,
ECHR 2006-...). The proceedings before the court examining an
appeal against detention must thus be adversarial and must always
ensure “equality of arms” between the parties, the
prosecutor and the detained person. While
national law may satisfy this requirement in various ways, whatever
method is chosen should ensure that the other party will be aware
that observations have been filed and will have a real opportunity to
comment thereon (see, in particular, Schöps,
cited above, § 44; Lietzow,
cited above, § 44; Garcia
Alva, cited above, § 39;
and Svipsta,
cited above, § 129).
- Equality
of arms is not ensured if counsel is denied access to those documents
in the investigation file which are essential in order effectively to
challenge the lawfulness of his client's detention (see, among other
authorities, Lamy v. Belgium, judgment of 30 March
1989, Series A no. 151, pp. 16-17, § 29; Nikolova v. Bulgaria
[GC], no. 31195/96, § 58, ECHR 1999-II; Schöps,
cited above, § 44; Shishkov,
cited above, § 77; and Svipsta, cited above, §
129). The Court acknowledges the need for criminal investigations to
be conducted efficiently, which may imply that part of the
information collected during them is to be kept secret in order to
prevent suspects from tampering with evidence and undermining the
course of justice. However, this legitimate goal cannot be pursued at
the expense of substantial restrictions on the rights of the defence.
Therefore, information which is essential for the assessment of the
lawfulness of a detention should be made available in an appropriate
manner to the suspect's lawyer (compare Lietzow,
cited above, § 47; Garcia
Alva, cited above, § 42;
Shishkov,
cited above, § 77; and Svipsta, cited above, §
137).
b. Application of those principles to the
present case
- The
Court therefore needs to determine whether, in the present case,
information which was essential for the assessment of the lawfulness
of the applicant's detention was not made available in an appropriate
manner to the applicant's lawyer. It observes that the domestic
courts reached their conclusion that there was a strong suspicion of
the applicant having committed tax evasion by reference to the
contents of the voluminous case files before them. The files included
business records seized at the applicant's home, but also witness
statements made by the proprietors of firms the applicant had been
working for, as well as contracts of employment and wage slips and
commission statements. The content of the investigation files thus
appears to have played a key role in the courts' decisions to prolong
the applicant's pre-trial detention.
- The
Court further notes that, while the Public Prosecutor's Office and
the courts were familiar with the files, their precise content was
not initially brought to the knowledge of the applicant's counsel.
The Public Prosecutor's Office repeatedly dismissed counsel's request
for access to the case files on the ground that consultation of these
documents would endanger the purpose of the investigations.
- It
was only after the Court of Appeal's decision of 14 October 2002 (see
paragraphs 23-29 above) that the applicant's counsel was provided
with copies of four pages of the voluminous case files containing an
overview by the Düsseldorf Tax Fraud Office on the amount of the
applicant's income and the taxes he was suspected of having evaded.
However, these documents only gave an account of the facts as
construed by the prosecution authorities on the basis of all the
information available to them. It is virtually impossible for an
accused, even if assisted by counsel, properly to challenge the
reliability of such an account without being aware of the evidence on
which it is based. Even in a case such as the present one in which
the detention order was partly based on evidence seized at the
defendant's home which, in principle, he would have been familiar
with, his defence counsel must be given sufficient opportunity to
acquaint himself personally with the underlying statements and other
pieces of evidence.
- For
the same reasons, the proposal by the prosecution, which was endorsed
by the courts, to give the applicant's counsel merely an oral account
of the facts and evidence in the case files (compare also Garcia
Alva, cited above, §§ 18,
43) was not sufficient. The suspicion against the applicant
was grounded not only on business documents seized at the applicant's
home, but also on documentary evidence obtained from his employers
and on witness statements made by them, in other words on a large
quantity of material which was only referred to in general terms in
the detention orders. The Court does not lose sight of the fact that
the refusal to grant the applicant's counsel access to the case files
was based on a risk of compromising the success of the ongoing
investigations. However, as reiterated above (at paragraph 92), this
legitimate goal may not be pursued at the expense of substantial
restrictions on the rights of the defence. Counsel must therefore be
given access to those parts of the case files on which the suspicion
against the applicant was essentially based. It follows that the
applicant, assisted by counsel, did not, at that stage of the
proceedings, have an opportunity adequately to challenge the findings
referred to by the Public Prosecutor or the courts as required by the
principle of “equality of arms”.
- The
Court further observes that, in its decision of 14 October 2002, the
Court of Appeal quashed the decisions taken by the District Court and
the Regional Court in the proceedings for judicial review of the
detention order. It found that the detention order was defective
because the facts and evidence on which the suspicion that an offence
had been committed and the reasons for the applicant's detention were
based were not described in such detail as to enable him to comment
and defend himself effectively. According to the Court of Appeal,
these defects amounted to a denial of the right of the accused to be
heard in view of the fact that counsel for the defence had been
refused access to the case files under section 147 § 2 of the
Code of Criminal Procedure.
- The
Court notes that the Court of Appeal thus acknowledged that the
applicant's procedural rights were curtailed by the failure to grant
the applicant's counsel access to the case files. However, as is
clear from the wording of paragraphs 3 and 4 of Article 5, the
protection of the rights under that Article, in view of the fact that
the person concerned is being deprived of his or her liberty, can
only be effective if its, guarantees are applied speedily (compare
also Lamy cited above, pp. 16-17, § 29). In the present
case, not only, as found above, were the proceedings reviewing the
lawfulness of the applicant's detention as such unduly delayed,
contrary to Article 5 § 4, his counsel was not granted access to
the case files until after the applicant's conditional release from
prison. In these circumstances, the fact that the domestic
authorities allowed the applicant's counsel to inspect the case files
at a later stage of the proceedings could no longer remedy in an
effective manner the procedural shortcomings in the earlier stages of
the proceedings.
- It
follows that the proceedings for a review of the applicant's
detention pending trial cannot be considered to have complied with
the guarantees afforded by Article 5 § 4 in this respect. There
has accordingly been a violation of this provision.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 25,000 euros (EUR) in respect of non-pecuniary
damage. He argued that an award of this level was necessary in order
to secure the domestic courts' future compliance with the Convention
rights in comparable cases.
- The
Government considered the applicant's claim to be excessive.
- As
regards the non-pecuniary damage allegedly suffered by the applicant
on account of the absence of procedural guarantees during his
detention the Court, having regard to its case-law on that issue
(compare, inter alia, Nikolova, cited above, § 76;
Lietzow,
cited above, § 52; Garcia Alva,
cited above, § 47), considers that the finding of a
violation constitutes sufficient just satisfaction. Conversely, it
finds that the applicant must have suffered distress as a result
of the delays in the proceedings for judicial review of the
lawfulness of his detention which is not sufficiently compensated for
by the finding of a violation. Ruling on an equitable basis, it
awards the applicant EUR 1,500 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed a total of EUR 5,164.76 for the costs and
expenses incurred before this Court (EUR 2,908.70 for drafting the
observations and EUR 2,256.06 for their translation into English) and
EUR 2,908.70 for those incurred before the Federal
Constitutional Court. According to the bills submitted by the
applicant, these amounts include VAT.
- The
Government left the amount to be awarded to the applicant for costs
and expenses to the Court's discretion.
- According
to the Court's case-law, to be awarded costs and expenses the injured
party must have incurred them in order to seek prevention or
rectification of a violation of the Convention, to have the same
established by the Court and to obtain redress therefor. It must also
be shown that the costs were actually and necessarily incurred and
are reasonable as to quantum (see, among other authorities, Nikolova,
cited above, § 79; and Venema v. the Netherlands, no.
35731/97, § 117, ECHR 2002-X).
- In
the present case, regard being had to the information in its
possession and the above criteria, the Court is satisfied that the
costs of the proceedings before the Federal Constitutional Court were
incurred in order to establish and redress a violation of the
applicant's Convention rights. It further notes that the application
before the Court was essentially well-founded. Making its own
assessment, the Court considers it reasonable to award the sum of EUR
6,000 covering costs under all heads, less the sum received by way of
legal aid from the Council of Europe (EUR 850), making a total of EUR
5,150. This sum includes VAT.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares the application admissible unanimously;
- Holds by five votes to two that there has been
no violation of Article 5 § 1 of the Convention;
- Holds unanimously that there has been a
violation of Article 5 § 4 of the Convention in so far as the
applicant complained of the lack of a speedy review of the lawfulness
of his detention;
- Holds unanimously that there has been a
violation of Article 5 § 4 of the Convention in so far as the
applicant complained about the refusal to grant his counsel access to
the case files in the proceedings for review of the lawfulness of his
detention;
- Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one thousand five
hundred euros) in respect of non-pecuniary damage and EUR 5,150 (five
thousand one hundred and fifty euros) in respect of costs and
expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 13 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint dissenting opinion of Mrs
Tsatsa-Nikolovska and Mr Borrego Borrego is annexed to this judgment.
P.L.
C.W.
JOINT DISSENTING OPINION OF JUDGES
TSATSA-NIKOLOVSKA
AND BORREGO BORREGO
Much
to our regret, we do not share the majority's decision with regard to
Article 5 § 1 of the Convention.
Article
5 of the Convention is of paramount importance. One of the most
important constituent parts of the Court's case-law is the “repeated
emphasis on the lawfulness of the detention, procedurally and
substantively, requiring scrupulous adherence to the rule of law”
(McKay v. the United Kingdom [GC], no. 543/03, 3 October
2006).
If
the Düsseldorf Court of Appeal (14 October 2002) found that “the
detention order issued by the District Court on 25 July 2002 did not
comply with the legal requirements” (§ 24), it seems
evident that the fact that the applicant was deprived of his liberty
constitutes a violation of Article 5 § 1 of the Convention.
Even
accepting the distinction made in paragraph 63 between void detention
orders and defective detention orders – such as the one in the
instant case, which therefore remained a valid basis for detention
until replaced – there is still evidence of a violation of
Article 5, since
“the importance of promptness or
speediness of the requisite judicial controls” constitutes one
of its applicable principles.
The
replacement of the defective detention order in this case should have
been faster. A lapse of fifteen days cannot be considered as
complying with Article 5, as stated in paragraph 64. Especially if we
take into consideration that in Gębura v. Poland (no.
63131/00, § 34, 6 March 2007) a delay of over forty-eight
hours in the applicant's release from prison was considered a
violation of Article 5 § 1of the Convention.
For
the reasons set out above, we cannot support the conclusion that
there has been no violation of Article 5 § 1 of the Convention.
