CEDH · CASELAW;CLIN;ENG — 9 juillet 2009

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Germany [GC] - 11364/03 Judgment 9.7.2009 [GC] Article 5 Article 5-1 Lawful arrest or detention Decision by court of appeal not to set defective detention order aside, but to remit case to trial court: no violation   Article 5-4 Take proceedings Refusal of access to documents in case file material to issue of lawfulness of detention: violation   Speediness of review Delays caused by court of appeal’s decision to remit case to trial court rather than to set aside defective detention order itself: violation   Facts : On 25 July 2002 the applicant was arrested on suspicion of tax evasion. A district court made an order for his detention after finding strong suspicion that he had evaded taxes on some twenty occasions over a six-year period and a risk of collusion or of his destroying evidence. The applicant subsequently obtained legal representation and on 7 August 2002 applied to the district court for a review of the detention order. A request by his lawyer for access to the case file to establish the facts and evidence on which the suspicion and order were based was turned down by the prosecution on the grounds that it would jeopardise the purpose of the investigation. The prosecution did, however, offer to inform the lawyer orally of the facts and evidence but he declined. At the review hearing, the district court upheld the detention order. The applicant’s appeal to the regional court was dismissed. On 14 October 2002, following a further appeal by the applicant, a court of appeal quashed the lower courts’ decisions and remitted the case to the district court after finding that the order of 25 July 2002 did not comply with statutory and constitutional requirements for a detailed description of the facts and evidence on which the defendant was suspected of the offence and of the reasons for his detention. It did not quash the order, however, as it found that while it was defective in law ( rechtsfehlerhaft ), it was not void ( unwirksam ). It also declined to give its own decision on the applicant’s detention, preferring to remit the case to the district court, which it directed to inform the applicant of the grounds for suspicion and to hear his representations. Following the remittal of the case the prosecution provided the applicant’s lawyer with a four-page overview by the tax-fraud office of the amount of the applicant’s income and of the taxes he was alleged to have evaded. The district court issued a fresh detention order, but suspended it on conditions. That decision was upheld by the regional court and the applicant was released on 7 November 2002. Shortly afterwards his lawyer was authorised to consult the case file. At the trial the applicant was found guilty of tax evasion and sentenced to twenty months’ imprisonment suspended on probation. Under German law detention orders that are defective in law are remediable on appeal and remain a valid basis for detention until the defect is remedied. Only in cases where the flaw is obvious and of such extent and gravity as to blatantly contradict the principles underlying the German legal system will a detention order be declared null and void. Article 309 § 2 of the Code of Criminal Procedure requires appeal courts to take their own decision in cases in which they find an appeal well-founded. However, the courts of appeal have developed exceptions to that rule and tend to remit the issue to a lower court where, as in the applicant’s case, insufficient details have been given in the detention order and defence counsel has been refused access to the case file. The rationale for this exception is that the defective reasoning effectively amounts to a breach of the duty to hear representations from the defendant. In its judgment of 13 December 2007, a Chamber of the Court found no violation of Article 5 § 1 and violations of Article 5 § 4. Law : Article 5 § 1 – The applicant complained that the court of appeal had failed to set aside the detention order of 25 July 2002 or to order his release even though it had found the order to be illegal. The Court noted that defects in a detention order did not necessarily render the underlying detention “unlawful” for the purposes of Article 5 § 1, unless they amounted to “a gross and obvious irregularity”. Although the detention order of 25 July 2002 failed to comply with the formal requirements of domestic law as it did not describe in sufficient detail the facts and evidence forming the basis for the suspicion against the applicant, it did not suffer from a gross and obvious irregularity such as to render it null and void. In particular, the district court had jurisdiction, had heard representations from the applicant at a hearing and had notified him of the order. In the review proceedings, all the domestic courts agreed that the substantive conditions for the applicant’s detention – strong suspicion that he had committed an offence, coupled with the danger of collusion or of his absconding – were met. The fact that the applicant’s lawyer had not been given full access to the case file did not alter the position as a violation of Article 5 § 4 on that account (see below) did not automatically entail a breach of Article 5 § 1, so that although the district court should have given more detailed information, it had nevertheless specified the charges in such a way as to make it clear that the suspicions against the applicant were based on business records seized at his home. The applicant could not therefore complain that he had been unaware of the basis for the suspicion. Further, contrary to the applicant’s submissions, the court of appeal’s decision of 14 October 2002 had been sufficiently foreseeable not to violate the principle of legal certainty. The distinction between orders that were merely “defective” and those that were “void” was well-established in the domestic case-law, even if, as the applicant had alleged, there was no basis for it in the Code of Criminal Procedure. Further, even though the court of appeal’s decision to remit ran counter to the wording of the Code requiring the appeal court to take the decision on the merits, it too was based on a well-established jurisprudential exception that applied in certain limited circumstances. While the Court considered that judicial exceptions to an express statutory rule should be kept to a minimum to avoid compromising legal certainty, the court of appeal had expressly cited earlier case-law in situations comparable to the applicant’s, so that its decision on this point also had been sufficiently foreseeable. Lastly, while the speed with which a defective detention order was replaced was relevant to the question whether detention was arbitrary, the district court had issued a fresh, reasoned, detention order within 15   days of the court of appeal’s decision to remit. Moreover, remitting a case to a lower court was a recognised technique for establishing the facts in detail and for assessing the evidence and in cases like the applicant’s, its benefits could outweigh the inconvenience caused by any delay and even serve to avoid unnecessary delays by taking advantage of the lower court’s better knowledge of the suspect and the investigation. It could also serve to improve the administration of justice when, as in the applicant’s case, it was accompanied with instructions to the lower court on how to avoid defective decisions in the future. Accordingly, the time that had elapsed between the court of appeal’s finding that the detention order was defective and the issuing of the fresh detention order had not rendered the detention arbitrary. In sum, the applicant’s detention had been lawful and in accordance with a procedure prescribed by law. Conclusion : no violation (nine votes to eight). Article 5 § 4 – (a) Speed of review : The Grand Chamber endorsed the Chamber’s findings that the decision to remit the case had unjustifiably delayed the process of judicial review of the legality of the detention order. A total of two months and twenty-two days had elapsed between the date the applicant sought judicial review on 7 August 2002 and the date the district court ordered his release. Conclusion : violation (unanimously). (b) Access to the case file : Equality of arms was not ensured if the defence was denied access to documents in the case file which were essential in order effectively to challenge the lawfulness of the detention. The Grand Chamber endorsed the Chamber’s findings that the offer of an oral account of the facts and evidence and the provision of a four-page overview were insufficient when defence counsel had not been given access to the parts of the case file on which the suspicion against the applicant was essentially based. Conclusion : violation (unanimously). Article 41 – EUR 3,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes