CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 9 juillet 2009

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margin-bottom:12pt; text-align:center; font-size:14pt } .sC202EACC { clear:both; mso-break-type:section-break }         GRAND CHAMBER             CASE OF MOOREN v. GERMANY   (Application no. 11364/03)                   JUDGMENT     STRASBOURG   9 July 2009     This judgment is final but may be subject to editorial revision. In the case of Mooren v. Germany, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Jean-Paul Costa, President,   Christos Rozakis,   Nicolas Bratza,   Françoise Tulkens,   Josep Casadevall,   Corneliu Bîrsan,   Nina Vajić,   Elisabet Fura-Sandström,   Alvina Gyulumyan,   Khanlar Hajiyev,   Dean Spielmann,   Renate Jaeger,   Dragoljub Popović,   Ineta Ziemele,   Isabelle Berro-Lefèvre,   George Nicolaou,   Ledi Bianku, judges, and Vincent Berger, Jurisconsult , Having deliberated in private on 24 September 2008 and on 27 May 2009, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     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 had been granted legal aid. 2.     The applicant complained that, 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, the Court of Appeal had unlawfully deprived him of his liberty and had unduly delayed the judicial review proceedings. He further complained that his defence counsel had been refused access to the investigation file. He relied, in particular, on Article 5 of the Convention. 3.     The application was allocated to the Third Section of the Court (Rule   52 §   1 of the Rules of Court). On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fifth Section (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 4.     On 13 December 2007 a Chamber of the Fifth Section, composed of the following judges: Peer Lorenzen, President , Snejana Botoucharova, Volodymyr Butkevych, Margarita Tsatsa-Nikolovska, Rait Maruste, Javier Borrego Borrego, Renate Jaeger, and also of Claudia Westerdiek, Section Registrar, delivered its judgment. The Chamber held, by five votes to two, that there had been no violation of Article 5 § 1 of the Convention, unanimously, that there had been a violation of Article 5 § 4 in so far as the applicant complained of the lack of a speedy review of the lawfulness of his detention and, unanimously, that there had 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 file in the proceedings for review of the lawfulness of his detention. The Chamber further held that the respondent Government was to pay the applicant 1,500 euros (EUR) in respect of non-pecuniary damage and EUR 5,150 in respect of costs and expenses. 5.     On 7 February 2008 the applicant requested that the case be referred to the Grand Chamber under Article 43 of the Convention and Rule 73 of the Rules of Court, arguing that there had also been a violation of Article 5 § 1. On 2 June 2008 the Panel of the Grand Chamber accepted that request. 6.     The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. 7.     The applicant and the Government each filed a memorial. 8.     A hearing took place in public in the Human Rights Building, Strasbourg, on 24 September 2008 (Rule 59 § 3). There appeared before the Court: (a)     for the Government Mrs   A. Wittling-Vogel , Ministerialdirigentin ,   Agent , Mr   A. Strafner , Public Prosecutor, Mr   S. Harms , Regional Court judge, Mr   O. Röhr , Administrative Court judge,   Advisers ; (b)     for the applicant Mr   D. Hagmann , lawyer,   Counsel , Ms   M. Oerder , lawyer, Ms   G. Worsdale-Wassmuth , interpreter,   Advisers .   The Court heard addresses by Mr Hagmann and Mrs Wittling-Vogel. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The applicant was born in 1963. At the date the application was lodged, he was living in Mönchengladbach. A.     The District Court's detention order 10.     On 25 July 2002 the applicant was arrested. 11.     On the same day the Mönchengladbach District Court ordered his detention on remand after hearing representations from him. The applicant was assisted from this point on by counsel. In a detention order running to some one and a half pages, 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, an offence punishable under various provisions (which were specified in detail) of the Tax Code, the Turnover Tax Code, the Income Tax Code and the Regulations on Trade Taxes. He had been working as a self-employed commercial agent for fifteen different firms in Germany (whose names were listed in detail in the order) since 1994. He had also been running a telephone service since 2000; in 2001 a company, TMA Aachen, had paid him commission amounting to 124,926.22 Deutschmarks (DEM). The court found on the basis of the documents before it that there were grounds for suspecting the applicant of having evaded turnover taxes of 57,374 euros (EUR), income taxes of EUR   133,279 and trade taxes of EUR 20,266. 12.     Noting that the applicant, who had availed himself of the right to remain silent, was strongly suspected of tax evasion on the basis of business records that had been seized when his home was searched, the District Court decided that he had to be placed in pre-trial detention because of the danger of collusion ( Verdunkelungsgefahr – see Article 112 § 2 no. 3 of the Code of Criminal Procedure, cited in paragraph 45 below). It also noted that the documents seized were incomplete, so that there was a risk that the applicant, if released, might destroy the missing documents or conceal further business transactions and accounts. B.     The District Court's review of the detention order 13.     On 7 August 2002 the applicant, represented by counsel, lodged an application for review of his detention order ( Haftprüfung ) with the Mönchengladbach District Court. His counsel also requested access to the case file, which he argued he had a right to inspect in order to apprise himself of all the facts and evidence on which the detention order and, in particular, the strong suspicion that an offence had been committed were based. He also pointed out that domestic law prohibited the District Court from considering facts and evidence to which defence counsel had been refused access pursuant to Article 147 § 2 of the Code of Criminal Procedure (see paragraph 52 below). 14.     On 12 August 2002 the Mönchengladbach Public Prosecutor's Office informed the applicant's counsel that he was being refused access to the case file pursuant to Article 147 § 2 of the Code of Criminal Procedure as it 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 at issue. The applicant's counsel did not take up that offer. 15.     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 file. 16.     By an order of the same day, the Mönchengladbach District Court, which had before it the case file of the proceedings, upheld the detention order. 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 consistently sought to conceal his true place of residence and other personal details from the authorities and had acted with intent to mislead which, in the particular circumstances of the case, proved that there was a danger of collusion. C.     The Regional Court's review of the detention order 17.     Following the applicant's appeal, which was lodged on 16   August   2002 and was followed up by detailed reasons on 19   August   2002, the Mönchengladbach 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 file, it stated that he should be informed orally about the content of the file in the first instance. 18.     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 file would not be sufficient. 19.     On 9 September 2002, after hearing representations from the Public Prosecutor's Office and considering the case file, 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 Article 112 § 2 no. 2 of the Code of Criminal Procedure (see paragraph 45 below), as the applicant had connections in foreign countries and faced a heavy sentence. 20.     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 file orally, the Regional Court found that it was impossible to assess whether the information given in this manner would be sufficient. At that stage of the proceedings, however, counsel for the defence could not claim to be entitled to unlimited access to the complete case file. 21.     The Regional Court's decision was served on the applicant's counsel on 16 September 2002. D.     The Court of Appeal's review of the detention order 22.     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. 23.     On 17 September 2002 the Mönchengladbach Regional Court decided, without giving further reasons, not to vary its decision of 9 September 2002. On 18 September 2002 the Mönchengladbach Public Prosecutor's Office, which was in possession of the case file, drafted a report which was sent to the Düsseldorf Chief Public Prosecutor's Office with the file the next day. 24.     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 file as it was sufficient for the applicant to be notified of the Düsseldorf Tax Fraud Office's overview of the amount of his income and amount of the taxes evaded in the years in question. The submissions and the case file reached the Düsseldorf Court of Appeal on 2 October 2002. 25.     On 2 October 2002 the applicant sent further observations to the Düsseldorf Court of Appeal. 26.     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 in question 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. 27.     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. 28.     The Court of Appeal, which had the investigation file before it, found that the detention order issued by the District Court on 25 July 2002 did not comply with the statutory requirements and that 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) therefore had to be quashed. It noted that Article 114 § 2 no. 4 of the Code of Criminal Procedure (see paragraph 46 below) required the facts that established strong suspicion that the accused had committed an offence and that formed the basis for his detention to be set out in the detention order. Moreover, 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 facts and evidence had to be set out in greater detail in the detention order in cases in which defence counsel had been denied access to the case file under Article 147 § 2 of the Code of Criminal Procedure. 29.     The Court of Appeal noted, however, that in its decisions on the applicant's detention the District Court had confined itself to noting that the applicant was strongly suspected of tax evasion “on the basis of the business records seized when his home was searched” when 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 file under Article 147 § 2 of the Code of Criminal Procedure, these defects amounted to a denial of the right of the accused to be heard. 30.     The Court of Appeal declined to take its own decision on the applicant's detention under Article 309 § 2 of the Code of Criminal Procedure (see paragraph 50 below) or to quash the detention order of 25 July 2002. Referring to the civil courts' case-law on that issue (namely, two decisions of the Karlsruhe Court of Appeal, no. 3 Ws 196/00 and no. 3 Ws 252/85, and to a decision of the Berlin Court of Appeal, no. 5 Ws 344/93 – see paragraph 48 below) it considered that the District Court's detention order was defective in law ( rechtsfehlerhaft ), but not void ( unwirksam ). The defect could be remedied in the course of the judicial review proceedings (see Hamburg Court of Appeal, no. 2 Ws 124/92, and Berlin Court of Appeal, no. 5 Ws 344/93 – paragraph 48 below). It stated that it would only quash a detention order if it was obvious that there was either no strong suspicion that the accused had committed an offence or that there were no reasons for the arrest, but that that was not the position in the applicant's case. It was for the District Court to inform the accused of the grounds on which he was suspected of having committed an offence and to hear representations from him on that issue (see also Berlin Court of Appeal, no. 5 Ws 344/93, cited at paragraph 51 below). Should the Public Prosecutor's Office persist, in the interest of its investigations, in not informing the accused of the reasons for his detention, the detention order would have to be quashed. 31.     As a consequence, the applicant remained in custody. E.     Fresh proceedings before the District Court 32.     On 17 October 2002 the Mönchengladbach Public Prosecutor's Office requested the District Court to issue a fresh, amended detention order against the applicant. 33.     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 application for judicial review of the detention order. The applicant's counsel was given copies of four pages of the voluminous case file containing the overview by the Düsseldorf Tax Fraud Office of the amount of the applicant's income and of the taxes he was alleged to have evaded 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 file before the hearing. 34.     The Mönchengladbach District Court then issued a fresh order, running to four pages, for the applicant's detention. 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 for six different firms and as marketing director of the TMA Aachen company and the amounts of tax payable in each of the years in question, 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 wage slips and commission statements that had been issued by the firms. 35.     The District Court further found that there was a risk of the applicant's absconding (a ground for detention under Article 112 § 2 no. 2 of the Code of Criminal Procedure) as he faced a lengthy prison sentence which could possibly no longer be suspended on probation, had not notified the authorities of his place of residence for a number of years and had claimed that he was living in the Netherlands. 36.     By an order of the same day, the Mönchengladbach District Court decided to suspend the execution of the detention order 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. However, the district court did not order the applicant's immediate release as the Public Prosecutor's Office had immediately lodged an appeal. F.     Renewed proceedings before the Regional Court and further developments 37.     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 EUR 40,000 as security. 38.     Having deposited the security, the applicant was released from prison on 7 November 2002. 39.     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 file. 40.     By a letter dated 18 November 2002, the Mönchengladbach Public Prosecutor's Office granted the applicant's counsel access to the case file. It stated that it had intended to send the file to him at an earlier date, but that this had not been possible as the file had been at the Regional Court and had only recently been returned to the Public Prosecutor's Office. The applicant's counsel received the file for inspection on 20   November   2002. The applicant withdrew his further appeal on 10   December   2002. G.     Proceedings before the Federal Constitutional Court 41.     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 file pursuant to Article 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 53 below), and his right to liberty under Article 104 § 3 of the Basic Law (see paragraph 54 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 v. Germany and Schöps v. Germany . The Court of Appeal's refusal to quash the detention order 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. 42.     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. 43.     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. H.     Further developments 44.     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. It 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 AND PRACTICE A.     Code of Criminal Procedure 1.     The detention order 45.     Articles 112 et seq . of the Code of Criminal Procedure ( Strafprozessordnung ) concern detention on remand. Pursuant to Article   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 (Article   112 § 2 no. 2) or of collusion (Article 112 § 2 no. 3). 46.     According to Article 114 §§ 1 and 2 of the Code of Criminal Procedure, detention on remand is ordered by a judge in a written detention order. The detention order identifies the accused, the offence of which he is strongly suspected, including the time and place of its commission, and the grounds for the arrest (nos. 1-3 of Article 114 § 2). 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 detention order unless national security would thereby be endangered (Article 114 § 2 no. 4). 2.     Judicial review of a detention order 47.     Under Article 117 § 1 of the Code of Criminal Procedure, remand prisoners may at any time seek judicial review ( Haftprüfung ) of a decision to issue a detention order or ask for the order to be suspended. They may lodge an appeal under Article 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 (Article 310 § 1 of the Code of Criminal Procedure). Decisions on a person's pre-trial detention have to be taken speedily (compare, among many others, Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, Strafverteidiger ( StV) 1994, p. 319). As a rule, pre-trial detention must not continue for more than six months (see Article 121 § 1 of the Code of Criminal Procedure; compare Federal Constitutional Court, no. 2 BvR 558/73, decision of 12 December 1973). (a)     Consequences of defects in the detention order 48.     The consequences of a court's finding in the course of judicial review proceedings that a detention order is flawed will depend on the nature of the defect found. Certain formal defects, in particular a failure to set out in sufficient detail in the order the facts establishing the grounds for strong suspicion that an offence has been committed and for the arrest, as required by Article 114 § 2 no. 4 of the Code of Criminal Procedure, will make the order defective in law ( rechtsfehlerhaft ), but not void ( unwirksam   / nichtig ) (see, inter alia , Karlsruhe Court of Appeal, no. 3 Ws 252/85, decision of 28 November 1985, Neue Zeitschrift für Strafrecht (NStZ) 1986, pp. 134-35; and Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, StV 1994, p. 318). Such defects may therefore be remedied by the appeal courts in the course of the judicial review proceedings by either quashing the defective order or replacing it with a fresh, duly reasoned order (compare, inter alia , Karlsruhe Court of Appeal, no. 3 Ws 252/85, decision of 28 November 1985, NStZ 1986, pp. 134-35 with further references; Hamburg Court of Appeal, no. 2 Ws 124/92, decision of 23 March 1992, Monatsschrift für Deutsches Recht ( MDR ) 1992, p. 694; Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, StV 1994, pp. 318-319; and Karlsruhe Court of Appeal, no. 3 Ws 196/00, decision of 26 September 2000, StV 2001, p.   118). A defective detention order thus remains a valid basis for detention until the defect is remedied. On the contrary, detention on the basis of a detention order which is void owing to a serious and obvious defect is unlawful (see paragraph 49). 49.     The Federal Court of Justice gave the following reasons for the distinction between void and defective court decisions: “Only in rare, exceptional cases can a court decision be considered void in its entirety, with the consequence that it is legally irrelevant (see ...). This is a consequence of the requirements of legal certainty and its corollary, the authority of court decisions, as well as of the overall structure of criminal proceedings with its system of legal remedies designed to correct defective decisions. Considering a court decision ... as legally irrelevant means that anyone may claim that it is null and void at any stage of the proceedings, even after it has become final... In the case of decisions which can be challenged by an appeal, the statutory rules – formalities and time-limits – become inoperative if the decisions are deemed legally irrelevant. Such consequences, which run counter to the overall order of the law of criminal procedure, may be drawn from the defectiveness of a court decision only, if at all, where it would be unthinkable for the legal community to recognise (at least provisionally) its validity. This will occur if the extent and gravity of the defect are such that the decision blatantly contradicts the spirit of the Code of Criminal Procedure and key principles of our legal order (see ...). From the perspective of legal certainty, the assumption that a decision is null and void presupposes, in addition, that the serious defect is obvious” (see Federal Court of Justice, no. 1 BJs 80/78, decision of 16 October 1980, Neue Juristische Wochenschrift (NJW) 1981, p. 133 with further references; compare also Federal Court of Justice, no. 1 StR 874/83, decision of 24 January 1984, NStZ 1984, p. 279) (b)     Consequences of a court of appeal's finding of a defect in the detention order 50.     As regards the consequences of a finding by a court of appeal, on a further appeal by the detainee, that a detention order is flawed, Article 309 §   2 of the Code of Criminal Procedure lays down that if the appeal court considers the appeal against the (continued) detention well-founded, it must take the necessary decision in the case at the same time. The court of appeal thus decides the merits of the case in the lower courts' stead (see, for instance, Düsseldorf Court of Appeal, no. 4 Ws 222/02, decision of 18 June 2002, NJW 2002, p. 2964). 51.     However, the courts of appeal have developed exceptions to the rule laid down in Article 309 § 2 of the Code of Criminal Procedure. In certain limited circumstances, a case may exceptionally be remitted to the court of first instance if there has been a procedural defect which the court of appeal cannot properly remedy itself (see Brandenburg Court of Appeal, no. 2 Ws 50/96, decision of 17 April 1996, NStZ 1996, pp. 406-07; and Düsseldorf Court of Appeal, no. 4 Ws 222/02, decision of 18 June 2002, NJW 2002, pp. 2964-65). In particular, a court of appeal may remit the case to the district court instead of taking its own decision on the merits if a detention order does not comply with the duty to set out the grounds for suspecting the accused of an offence and if, in addition, the prosecution refused access to the case file. The explanation for this is that, in such cases, the defective reasoning effectively amounts to a breach of the duty to hear representations from the defendant. It was the district court which had jurisdiction to inform the accused for the first time of the grounds for suspecting him of an offence and to hear representations from him (see Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, StV 1994, pp. 318-19). The duty to expedite proceedings in which the suspect is in detention does not warrant a different conclusion as only a remittal of the case will enable him to avail himself effectively of his right to be heard (see Berlin Court of Appeal, no.   5 Ws 344/93, decision of 5 October 1993, StV 1994, p. 319). 3.     Access to the case-file 52.     Article 147 § 1 of the Code of Criminal Procedure provides that defence counsel is entitled to consult the file which has 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 file or to the exhibits to be refused until the preliminary investigation has ended if the investigation 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 (Article 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 file or not; thereafter it is for the president of the trial court (Article 147 § 5). An accused who is in detention is entitled by virtue of Article 161a § 3 of the Code of Criminal Procedure to seek judicial review of a decision of the Public Prosecutor's Office to refuse access to the file. Pursuant to that provision, the regional court for the district where the Public Prosecutor's Office is located has jurisdiction to hear applications for judicial review; its decisions are not subject to appeal. B.     Provisions of the Basic Law 53.     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 ). 54.     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 detention order setting out the grounds therefor or order the detainee's release. THE LAW I.     THE GOVERNMENT'S PRELIMINARY OBJECTION RELATING TO ALL COMPLAINTS A.     The parties' submissions 55.     The Government claimed that the applicant had failed to exhaust domestic remedies in respect of all his complaints to the Court. They submitted that, prior to lodging his application with the Court, he should have brought an action in the civil courts against the Land of North Rhine-Westphalia based on Article 5 § 5 of the Convention for compensation for the damage caused by the alleged breaches of Article 5 §§   1 and 4. They conceded that in their non-exhaustion plea before the Chamber they had not claimed that the applicant should have availed himself of that remedy, but argued that they were not estopped from raising such a plea on different grounds before the Grand Chamber. In their view, the applicant should have made such a compensation claim, which was a long-established and effective remedy, in addition to his request for judicial review of his detention. As he had been released and his counsel had been granted access to the case file when the proceedings were still pending in the domestic courts, the aim of his application to the Court could only be to obtain a finding of a Convention breach and the payment of adequate compensation and should therefore have been pursued in the first instance by a compensation claim in the domestic courts. 56.     The applicant took the view that since the Government had not objected at the admissibility stage of the proceedings before the Chamber that he should have brought a compensation claim in the domestic courts, they could not do so for the first time before the Grand Chamber. B.     The Court's assessment 57.     The Court reiterates that the Grand Chamber is not precluded from examining, where appropriate, issues relating to the admissibility of an application under Article 35 § 4 of the Convention, as that provision enables the Court to dismiss applications it considers inadmissible “at any stage of the proceedings” (see Odièvre v. France [GC], no. 42326/98, § 22, ECHR   2003-III; Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III; and Yumak and Sadak v. Turkey [GC], no. 10226/03, § 72, 8 July 2008). According to Rule 55 of the Rules of Court, any plea of inadmissibility must, however, in so far as its character and the circumstances permit, have been raised by the respondent Contracting Party in its observations on the admissibility of the application submitted as provided in Rule 54 (compare N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X; Azinas , cited above, §§ 32 and 37; and Sejdovic v. Italy [GC], no. 56581/00, § 41, ECHR   2006-II). Only exceptional circumstances, in particular the fact that the reason prompting an objection to admissibility became known only at a later stage, could dispense a Government from the obligation to raise their objection in their said observations before the adoption of the Chamber's admissibility decision (see N.C. v. Italy , cited above, § 44; Sejdovic , cited above, § 41; and Lebedev v. Russia , no. 4493/04, §§ 39-40, 25 October 2007). 58.     The Court notes that in their written observations on the admissibility of the application before the Chamber, the Government did not argue that the applicant should have brought a compensation claim in the civil courts prior to lodging his application with the Court, but based their plea of non-exhaustion on several different grounds. This is indeed uncontested by the Government. However, the respondent Government's duty under Rule 55 to raise pleas of inadmissibility in their observations before the adoption of the Chamber's admissibility decision relates to a specific plea of, for instance, non-exhaustion, including the reasons given for the plea. It does not, therefore, suffice for the Government to have pleaded non-exhaustion on different grounds within the prescribed time-limit (compare, in particular, Sejdovic , cited above, §§ 40-42). Moreover, as a compensation claim based on Article 5 § 5, in the Government's submission, was a long-established remedy, the Court cannot discern any exceptional circumstances which could have released the Government from the obligation to raise their preliminary objection of non-exhaustion with reference to that remedy in their observations on admissibility before the Chamber. 59.     Consequently, the Government are estopped from raising a preliminary objection of non-exhaustion of domestic remedies for failure to bring a compensation claim at this stage of the proceedings. Their objection must therefore be dismissed. II.     COMPLAINTS CONCERNING THE REMITTAL PROCEDURE 60.     The applicant complained that, in the proceedings for the review of his pre-trial detention, 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 the detention order defective. In his submission, by remitting the case to the District Court the Court of Appeal had unlawfully deprived him of his liberty and unnecessarily delayed his application for judicial review of his detention order, which thus had not been heard within a reasonable time. He relied on Articles 5 and 6 of the Convention. 61.     The Chamber considered that the applicant's complaints fell to be examined under Article 5 §§ 1 (c) and 4 of the Convention alone. The parties did not challenge that conclusion and the Grand Chamber, for its part, sees no reason to adopt a different stance. Article 5 §§ 1 (c) and 4 provide: “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.     Complaint concerning the lawfulness of the detention 1.     Ground for detention 62.     The Chamber found that the applicant's pre-trial detention fell under paragraph 1 (c) of Article 5 of the Convention, as it had been ordered for the purpose of bringing the applicant before the competent legal authority on reasonable suspicion that he was guilty of tax evasion. The parties accepted that finding and the Grand Chamber equally shares this view. 2.     “Lawful” detention “in accordance with a procedure prescribed by law” (a)     The Chamber judgment 63.     The Chamber considered that the applicant's detention had not violated Article 5 § 1, as it had been “lawful” and “in accordance with a procedure prescribed by law”. It noted that the Court of Appeal had found in its decision of 14 October 2002 that although the detention order of 25 July 2002 had failed to comply with the formal requirements of Article 114 § 2 of the Code of Criminal Procedure, it had complied with the substantive requirements of the provisions on pre-trial detention. Accordingly, referring to the established case-law of the criminal courts on that point, the Court of Appeal considered that the order was defective on formal grounds only and therefore not void. Under domestic law, it thus remained a valid basis for the ap