Přehled
Rozhodnutí
AS TO THE ADMISSIBILITY OF
Application No. 25116/94
by Jörg Rudolf SCHÖPS
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 10 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 July 1994 by
Jörg Rudolf SCHÖPS against Germany and registered on 12 September 1994
under file No. 25116/94;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
9 January 1996 and the observations in reply submitted by the
applicant on 12 April 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1953, is a German national and resident
in Essen. When lodging his application, he was detained in a prison
in Essen. In the proceedings before the Commission he is represented
by Mr. K. Hütsch, a lawyer and notary practising in Essen.
The facts, as submitted by the parties, may be summarised as
follows.
A. Particular circumstances of the case
In 1992 the Essen Public Prosecutor's Office (Staatsanwaltschaft)
started investigations against the applicant and numerous other
suspects on the suspicion of fraud.
On 11 March 1993 the Essen District Court (Amtsgericht) issued
an arrest warrant against the applicant as well as the co-suspects S.
and L. on the suspicion of criminal association, of drug trafficking
and several counts of fraud.
In its decision the District Court noted that the suspects were
charged with having founded - at the end of December 1988 - an
association for the purpose of gaining large profits from fraudulent
trading options. Moreover, as from mid 1990 the suspects agreed to
import cocaine from Mallorca to the Federal Republic of Germany and to
sell it there. Several other accomplices were recruited as members of
the criminal organisation and involved in the numerous criminal
offences. As regards the fraudulent trading options, almost one
thousand victims were defrauded by the criminal association between the
beginning of 1989 and March 1993, and a total damage of sixty million
DM was caused to them. Moreover, between October 1990 and August 1992
some hundred kilograms of cocaine were imported to, and sold in,
Germany. The District Court found that, having regard to the
statements of witnesses, the statements of the co-suspects, the results
of telephone tapping and the other results of the investigations, there
was a strong suspicion that the applicant, S. and L. had committed the
criminal offences in question.
The District Court also considered that there was a danger of
absconding within the meaning of S. 112 para. 2 (2) of the Code of
Criminal Procedure (Strafprozeßordnung). In this respect the Court
found that, taking into account the seriousness of the offences with
which the suspects were charged and the importance of the damage caused
by them, they had to expect a long term of imprisonment. Moreover, the
suspects had obviously sufficient financial means in order to finance
absconding. According to the District Court, there was also a danger
of collusion within the meaning of S. 112 para. 2 (3) of the Code of
Criminal Procedure. The District Court assumed that the suspects, as
members of a criminal association, were used to disguising the extent
of their activities by means of men of straw, fictitious contracts, and
they were likely to suppress evidence or influence witnesses.
The applicant was arrested on 19 March 1993. In presence of his
defence counsel Mr. Hütsch, he was informed by the Investigating Judge
(Haftrichter) about the charges against him and about the arrest
warrant of 11 March 1993. The applicant requested that the lawfulness
of his detention be examined (Antrag auf mündliche Haftprüfung).
Moreover, according to the applicant, his counsel applied, at the
Essen Public Prosecutor's Office, for a provision to consult
investigation files, which was refused on the ground that access to
these documents would endanger the course of the investigations. This
request and its refusal are not recorded in the files of the Public
Prosecutor's Office.
On 8 September 1993 the Essen District Court amended the arrest
warrant, adding in particular further charges of tax evasion,
corruption, incitement to making a false entry into official records
and making a false affidavit. The District Court confirmed that there
was still a danger of the applicant's and co-suspects' absconding which
could only be prevented by less serious measures in the case of S.
Thus the execution of the arrest warrant against S. could be suspended,
whereas the applicant and L. had to be further remanded in custody.
On 14 September 1993 the applicant was informed about the amended
arrest warrant. According to the record of this hearing, his counsel
"again" ("nochmals") applied for access to the files.
On 14 September 1993 the Hamm Attorney General's Office
(Generalstaatsanwaltschaft) requested the prolongation of the
applicant's and L.'s detention on remand. In this request, to which
24 investigation files were attached, the Attorney General noted the
history of the detention proceedings, and summarised the suspicion
against the co-suspects. As to the details of the facts, he referred
to the arrest warrant and a police report of July 1993 which were to
be found in the attached files. The strong suspicion against the
co-suspects was, according to the Attorney General, based upon the
statements of the suspects and of witnesses, the opinion of a stock
taking expert, records of telephone tapping and seized business
documents, all included in the investigations files. He also confirmed
the danger of absconding.
In his reply of 21 October 1993, the applicant's defence counsel
applied with the Düsseldorf Court of Appeal (Oberlandesgericht) for
access to the files, for an oral hearing on the question of the
applicant's continued detention and for his release. He submitted that
he could not in detail comment upon the Attorney General's submission
on the ground that, despite promises on several occasions, he had not
yet been granted access to the investigation files and as the Attorney
General's submissions were in themselves fragmentary.
According to a handwritten file note drafted by the Court of
Appeal Rapporteur, the applicant's counsel, upon a telephone query,
agreed to a decision on the question of the applicant's continued
detention on remand without having previously had access to the files.
According to the applicant, as confirmed by his counsel Mr. Hütsch and
his counsel's colleague Mr. Pott, the Court of Appeal Rapporteur and
counsel had agreed that he could not comment on the question of the
applicant's continued detention on remand without having had access to
the files and that the Court of Appeal Judge had therefore promised to
arrange for a consultation of the files.
On 3 November 1993 the Düsseldorf Court of Appeal ordered the
applicant's continued detention on remand.
The Court of Appeal, having regard to the result of the
investigations so far, in particular the applicant's and the
co-suspects' statements, the statements of the victims, the records of
telephone tapping and seized business documents and the provisional
opinion of a stock taking expert, confirmed that there was a strong
suspicion that the applicant had committed the offences in question.
As regards the danger of the applicant's absconding, the court of
Appeal noted that the applicant had important financial means and real
property in Mallorca. Moreover he had, until his arrest, had contacts
in the United States of America, Switzerland and Spain.
The Court of Appeal also considered that the applicant's
continued detention on remand was not disproportionate. As to the
conduct of the investigation proceedings, the Court of Appeal observed
that the particular difficulty and extent of the investigations had not
yet enabled a judgment to be reached. In this respect, the Court of
Appeal noted that the investigation files already comprised 24 volumes,
and that the indictment was envisaged for November 1993. Finally, the
Court of Appeal stated that there had been no need for an oral review
hearing.
On 22 November 1993 the Essen Public Prosecutor's Office decided
that the applicant's defence counsel be allowed to consult the
investigation files. According to the applicant, only 22 of the then
24 files were made available to him. He returned the files in January
1994. According to the applicant, his counsel applied for further
consultation of the files in the beginning of 1994.
On 7 February 1994, following a change in the courts'
competences, the Hamm Public Prosecutor's Office requested the Hamm
Court of Appeal to order the applicant's continued detention on remand.
The Prosecutor's Office enclosed the criminal files, which comprised
69 volumes and 3 subsidiary files (Beiakten).
In his written submission of 28 February 1994, the applicant's
counsel stated that he had so far only be able to consult 22 volumes
of the criminal files and that he could not, therefore, add anything
to his previous observations.
On 1 March 1994 the Hamm Court of Appeal granted the request of
7 February 1994.
The Court of Appeal considered that the reasons stated in the
Düsseldorf Court of Appeal's previous decision remain valid. Moreover,
the proceedings had progressed. The police had prepared an intermediate
report in January 1994 and given information according to which the
questioning of about one thousand witnesses was almost completed. The
final police report and the report of the tax investigation authorities
had been announced for the end of February 1994. The Public
Prosecutor's Office envisaged preparing the bill of indictment
immediately afterwards. Thus the obligation to conduct the proceedings
expeditiously had not been disregarded.
The Court of Appeal further found that the applicant's complaint
under Article 5 para. 4 of the Convention about the lack of access to
the investigation files did not affect the validity of the arrest
warrant.
On 25 March 1994 the applicant lodged a constitutional complaint
(Verfassungsbeschwerde) about the decisions of 3 November 1993 and
1 March 1994, complaining in particular about the lack of sufficient
access to the investigation files. In this respect, he noted that he
had been granted access to 22 volumes of the investigation files which,
at that time, comprised altogether 132 volumes. He and his defence
counsel had not, therefore, been able to properly comment upon the
suspicion raised and to exercise the defence rights effectively.
On 2 May 1994 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to entertain the applicant's constitutional
complaint.
On 25 March 1994 the Essen Public Prosecutor's Office drew up the
bill of indictment (Anklageschrift) against the applicant and four co-
accused. They were charged with having committed various criminal
offences. In particular the applicant was charged with having committed
91 counts of fraud, corruption, incitement to making a false entry in
an official record and of having given a false affidavit. The
proceedings relating to the charges of tax evasion were separated from
these main proceedings. Prosecution for unlawful association was
discontinued in view of the severity of the other charges. The bill
of indictment, which stated in detail the charges against the
applicant, the relevant facts and means of evidence, was served upon
the applicant's counsel on 9 June 1994.
Moreover, on 9 June 1994 the Essen Public Prosecutor's Office
forwarded copies of the investigation files, i.e. 132 main and
2 supplementary volumes - altogether about 16,000 pages, to the
applicant's defence counsel for consultation. It requested that they
be returned within one week in order to allow for consultation by the
other defence counsel. On 23 June 1994, the Office sent a reminder as
to the return of the files. The date of their return was not recorded.
According to the applicant, the copies made available to his counsel
were not complete.
On 30 June 1994 the Hamm Court of Appeal ordered the applicant's
continued detention on remand. Upon the request of counsel of one of
the applicant's co-accused, the date for the decision had been
postponed for one week in order to have adequate opportunity to file
submissions.
The Court of Appeal confirmed the findings as laid down in the
earlier decisions of 30 November 1993 and 1 March 1994. As regards the
charges against the applicant, the Court of Appeal noted the changes
resulting from the bill of indictment, which did not take up the
charges of founding a criminal association and of tax evasion. The
prosecution regarding the first of these charges had been discontinued,
in accordance with the relevant provisions of the Code of Criminal
Procedure, in view of the minor importance of the offence as compared
to those at issue in the bill of indictment. As regards the latter
further investigations were pending.
The Court of Appeal also considered that the proceedings had
progressed. The bill of indictment had meanwhile been drawn up and
forwarded to the Chamber for Economic Offences at the Essen Regional
Court (Landgericht). The Regional Court had started examining the
complex case and envisaged, if main trial proceedings were opened, to
start the hearings in September 1994.
On 19 October 1994 the Hamm Court of Appeal discontinued the
applicant's detention on remand. The Court of Appeal confirmed that
there was still a strong suspicion against the applicant and the
reasons for detaining him on remand persisted, however, his continued
detention ceased to be proportionate. The Court of Appeal considered
in particular that since May 1994 the Essen Regional Court had not duly
furthered the proceedings.
The proceedings are still pending before the Essen Regional
Court.
B. Relevant domestic law
SS. 112 to 131 of the Code of Criminal Procedure (Strafprozeß-
ordnung) concern the arrest and detention of a person on reasonable
suspicion of having committed an offence. According to S. 112 a person
may be detained on remand if there is a strong suspicion that he or she
committed a criminal offence and if there is a reason for arrest, such
as the risk of absconding and the risk of collusion. S. 116 regulates
the suspension of the execution of an arrest warrant.
Under S. 117 of the Code of Criminal Procedure, the remand
prisoner can request a hearing for review of the arrest warrant at any
time. An oral hearing will be held upon the request of the remand
prisoner, or if the court otherwise so decides (S. 118 para. 1). If
the arrest warrant is confirmed following the review hearing, the
remand prisoner is only entitled to a new review after the detention
has lasted altogether three months and after a lapse of two months
after the last review hearing. S. 120 provides that an arrest warrant
has to be quashed if reasons justifying the detention on remand no
longer persist or if the continued detention appears disproportionate.
SS. 137 et seq. of the Code of Criminal Procedure concern the
defence of a person charged with having committed a criminal offence,
in particular the choice of defence counsel or appointment of official
defence counsel. According to S. 147 para. 1, defence counsel is
entitled to consult the files, which have been presented to the trial
court or which would have to be presented to the trial court in case
of indictment, and to inspect the exhibits. Paragraph 2 of this
provision allows for a refusal of access to the files or part of the
files or the exhibits as long as the preliminary investigations have
not terminated, if otherwise the course of the investigations would be
endangered. In the course of the preliminary investigations, the
Public Prosecutor's Office decides on the question of granting defence
counsel access to the files, afterwards the decision is taken by the
trial court (S. 247 para. 4).
SS. 151 to 177 of the Code of Criminal Procedure regulate the
principles of criminal prosecution and the preparation of the
indictment. S. 151 provides that the opening of a trial presupposes
an indictment. According to S. 152 the indictment is preferred by the
Public Prosecutor's Office which is, unless otherwise provided, obliged
to investigate any criminal offence of which there is a reasonable
suspicion.
Preliminary investigations are conducted by the Public
Prosecutor's Office according to SS. 160 and 161 of the Code of
Criminal Procedure. On the basis of these investigations the Public
Prosecutor's Office decides under S. 170 whether to prefer an
indictment or to discontinue the proceedings.
COMPLAINTS
1. The applicant, in the application form submitted on
16 August 1994, complains under Article 5 para. 3 of the Convention
about the length of his detention on remand. He submits that most of
the charges against him proved to be unfounded as they were not taken
up in the bill of indictment against him, thus in particular the
suspicion of drug trafficking. Following the termination of the
investigation there was no danger of collusion. Moreover, there had
been no risk of his absconding, as he had close relations to his
parents and had two small children.
2. The applicant further complains under Article 5 para. 4 of the
Convention that his defence counsel was denied access to the criminal
files in his case and could not, therefore, properly present his
defence and contest the reasons for his detention on remand. No
equality of arms had, therefore, existed.
3. The applicant further complains under Article 6 para. 3 (a) and
(b) of the Convention about the lack of access to the files and
detailed information about the charges against him and the relevant
facts.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 July and registered on
12 September 1994.
On 6 September 1995 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were, after an extension
of the time-limit, submitted on 9 January 1996. The applicant replied
on 12 April 1996. The Government amended their observations on
9 May 1996.
THE LAW
1. In his application form, the applicant complains under Article 5
para. 3 (Art. 5-3) of the Convention about the length of his detention
on remand. In his letter of 25 July 1995, he indicates that his
application is in essence directed at the "unfairness of the
proceedings" ("Unfairness des Verfahrens"), and not at the "question
of his continued detention on remand" ("Frage der Haftfortdauer").
The Government maintain that the applicant thus clarified that
he did not intend to complain under Article 5 para. 3 (Art. 5-3) of the
length of his detention on remand. They consider that such a complaint
would anyway be inadmissible.
The Commission finds that, while the applicant, in the
application form, expressly complained about the length of his
detention on remand and invoked Article 5 para. 3 (Art. 5-3) of the
Convention in this respect, the wording of his ensuing letter is
ambiguous and not sufficient to establish that the applicant no longer
wished to pursue the matter. However, this problem need not be finally
settled, as this complaint is, in any event, inadmissible for the
following reason.
Under Article 26 (Art. 26) of the Convention, the Commission may
only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international
law, and within a period of six months from the date on which the final
decision was taken. An applicant should have normal recourse to
remedies which are available and sufficient to afford redress in
respect of the breaches alleged. Article 26 (Art. 26) also requires
that the complaints intended to be made subsequently at Strasbourg
should have been made to the appropriate domestic body, at least in
substance and in compliance with the formal requirements and time
limits laid down in domestic law (cf. Eur. Court HR, Akdivar v. Turkey
judgment of 16 September 1996, para. 66, to be published in the Reports
of Judgments and Decisions for 1996).
The Commission finds that the applicant failed to exhaust the
remedies available to him under German law, as he did not lodge a
constitutional complaint with the Federal Constitutional Court
regarding the length of his detention on remand. In this respect, the
Commission notes that the applicant's constitutional complaint of March
1994 only related to the question of access to the investigation files.
The applicant argues that in the context of his constitutional
complaint, he had not wished to plead the unreasonableness of the
length of his detention without having consulted the investigation
files. However, the Commission considers that, given the general
information at the applicant's disposal, his submissions do not show
that, in the circumstances of his case, a complaint with the Federal
Constitutional Court about the length of his detention on remand would
not have constituted an available and effective remedy.
It follows that this part of the application must be rejected
under Articles 26 and 27 para. 3 (Art. 26, 27-3)) of the Convention.
2. The applicant further complains that his defence counsel was
denied access to the criminal files in his case and could not,
therefore, properly present his defence and contest the reasons for his
detention on remand. He invokes Article 5 para. 4 (Art. 5-4) of the
Convention.
Article 5 para. 4 (Art. 5-4) provides as follows:
"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."
The Government submit that the applicant's complaint under
Article 5 para. 4 (Art. 5-4) is manifestly ill-founded. In their
submission, Article 5 para. 4 (Art. 5-4) does not give rise to a
general right on the part of the accused detained on remand to inspect
the files concerning the investigations against him.
The Government note that, in the present case, the applicant's
counsel had been granted access to the files on 22 November 1993 and
again on 9 June 1994. They maintain that the fact that he was not
granted access to the files at an earlier stage does not disclose any
appearance of a violation of Article 5 para. 4 (Art. 5-4) as counsel's
first request for access only dated from 14 September 1993. No action
was taken upon this request on the ground that the duplicate copy of
the files had been forwarded to the Düsseldorf Court of Appeal for the
purposes of the review proceedings, while the original files were
needed for the purposes of the continuing investigations. Indeed, as
evidenced by the file note of the Court of Appeal Rapporteur, counsel
had agreed to a decision in the review proceedings without having
previously had access to the files. Moreover, they note that in
November 1993 counsel did not complain about any alleged incompleteness
of the files made available to him.
Furthermore, the Government submit that, in the ensuing
proceedings, the applicant's counsel failed to repeat his requests for
access to the further files which had been opened as the investigations
had gone on. However, the prosecution authorities were not obliged to
grant, ex officio, access to such files. As the applicant and his
counsel were aware of the complexity of the investigations, they had
to keep track of the further developments and to renew requests for
access to the files. The submissions to the Court of Appeal dated
28 February 1994, in which the applicant's counsel complained about not
having been able to consult all of the then existing files, could not
be regarded as a request for access to the files. Moreover, no request
to postpone the date for the Court of Appeal's decision on the question
of the applicant's continued detention on remand was made. In any
event, following consultation of then 24 files in November 1993 the
applicant had sufficient knowledge of all relevant elements necessary
for an effective defence in the review proceedings.
According to the applicant, his counsel lodged requests for
access to the files both in March and September 1993. In his
submission, the file note of drafted by the Court of Appeal Rapporteur,
is misleading: in fact defence counsel had merely accepted that, in the
absence of access to the files, he could no more than believe the Court
of Appeal's findings. The files made available to his counsel in
November 1993 had been incomplete, in particular, the further files
opened in the course of the investigations were not made available to
him. In these circumstances he could not effectively exercise his
defence rights and question the lawfulness of his continued detention
on remand.
The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and of fact
under the Convention, the determination of which should depend on an
examination of the merits of the application. The Commission
concludes, therefore, that the applicant's complaint under Article 5
para. 4 (Art. 5-4) is not manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for
declaring it inadmissible have been established.
3. The applicant further complains under Article 6 para. 3 (a) and
(b) (Art. 6-3-a, 6-3-b) of the Convention about the lack of access to
the files and detailed information about the charges against him and
the relevant facts.
The Commission recalls that the question of whether criminal
proceedings conform to the standards laid down in Article 6 (Art. 6)
must be decided on the basis of an evaluation of the trial in its
entirety (cf. No. 11058/84, Dec. 13.5.86, D.R. 47, p. 230).
Accordingly, the applicant's complaints relating to the preparation of
his defence and exercise of his defence rights in the criminal
proceedings, which are still pending, are premature.
It follows that this aspect of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaint that the procedure to review the lawfulness
of his detention on remand did not comply with the requirements
of Article 5 para. 4;
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber