CEDH · PRESS;GCJUDGMENTS;ENG — 9 juillet 2009

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }   555 09.07.2009   Press release issued by the Registrar   GRAND CHAMBER JUDGMENT MOOREN v. GERMANY   The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment [1] in the case of Mooren v. Germany (application no. 11364/03), which concerns allegations of unlawful detention in a tax-evasion case.   The Court held, by nine votes to eight, that there had been no violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights and, unanimously, that there had been a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention on account of the lack of a speedy review of the lawfulness of the applicant’s detention and of the refusal to grant the applicant’s counsel access to the case file in the proceedings.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 3,000   euros   (EUR) in respect of non-pecuniary damage and EUR   5,650 for costs and expenses. ( The judgment is available in English and French .)   1.     Principal facts   Burghard Theodor Mooren is a German national who was born in 1963 and was living in Mönchengladbach (Germany) when his application was lodged with the European Court of Human Rights.   On 25 July 2002 he was arrested and remanded in custody on suspicion of tax evasion. On 16 August 2002 the Mönchengladbach District Court upheld the detention order. An appeal by the applicant to the Regional Court was dismissed on 9 September 2002. The applicant’s lawyer, who unsuccessfully requested access to the case file, refused to accept an offer by the public prosecutor’s office to explain its contents to him orally.   On 14   October 2002 the Düsseldorf Court of Appeal, on an appeal by the applicant, set aside the decisions of August and September 2002 upholding the order for the applicant’s detention and remitted the case to the District Court. The Court of Appeal declined to give its own decision on the applicant’s detention or to quash the detention order of 25 July 2002, which it held to be defective in law ( rechtsfehlerhaft ), but not void ( unwirksam ). The applicant remained in custody.   In October 2002 the Mönchengladbach District Court again ordered the applicant’s detention. The Regional Court dismissed an appeal by the applicant against that order but suspended its execution subject to certain conditions. The applicant was released on 7   November 2002 and on 18   November his lawyer was authorised to consult the case file. The applicant referred his case to the Federal Constitutional Court, but without success.   On 9   March 2005 the Mönchengladbach District Court found the applicant guilty of tax evasion and sentenced him to a total of one year and eight months’ imprisonment suspended on probation.   2.     Procedure and composition of the Court   The application was lodged on 26 March 2003. In a judgment of 13   December 2007, the Court held, by five votes to two, that there had been no violation of Article   5 §   1 and unanimously that there had been two violations of Article   5   §   4, on account of the lack of a speedy review of the lawfulness of the applicant’s detention and of the refusal to grant his lawyer access to the case file.   On 2 June 2008, the Grand Chamber panel accepted the applicant’s request that the case be referred to the Grand Chamber under Article 43 [2] (referral to the Grand Chamber).   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Jean-Paul Costa (France), President , Christos Rozakis (Greece), Nicolas Bratza (the United Kingdom), Françoise Tulkens (Belgium), Josep Casadevall (Andorra), Corneliu Bîrsan (Romania), Nina Vajić (Croatia) Elisabet Fura-Sandström (Sweden), Alvina Gyulumyan (Armenia), Khanlar Hajiyev (Azerbaijan), Dean Spielmann (Luxembourg), Renate Jaeger (Germany), Dragoljub Popović (Serbia), Ineta Ziemele (Latvia), Isabelle Berro-Lefèvre (Monaco), George Nicolaou (Cyprus), Ledi Bianku (Albania), judges , and also Vincent Berger , Jurisconsult .   3.     Summary of the judgment [3]   Complaints   The applicant complained that the Court of Appeal had not set aside the order for his detention initially made by the District Court on 25   July 2002 or ordered his release even though it had found the order illegal. He further alleged that by remitting the case to the District Court, the Court of Appeal had unduly delayed the proceedings for judicial review of the legality of the detention order, with the result that they were not terminated within a reasonable time. He further complained that during the proceedings on the application for judicial review of the legality of his detention his lawyer was refused access to the file, which had made it impossible to mount an effective defence. He relied on Articles 5 (right to liberty and security) and 6 (right to a fair trial) of the Convention. In its judgment of 13   December 2007, the Chamber held that the application should be examined solely under Article   5. The parties did not dispute that decision in the proceedings before the Grand Chamber.   Decision of the Court   Article 5 § 1   The Court noted at the outset that, as the Düsseldorf Court of Appeal had found in its judgment of 14 October 2002, the detention order 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. The Court reiterated 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”. In that connection, it found that the detention order did not suffer from a gross and obvious irregularity such as to render it null and void and that the substantive conditions to which it was subject under German law were met. In particular, the Mönchengladbach District Court had heard representations from the applicant at a hearing before issuing the order, the suspicion that the applicant was guilty of tax evasion were based on business records seized at his home, and there was a danger of collusion or of the applicant absconding if released.   The Court further notes that the Court of Appeal’s decision was sufficiently foreseeable and had not, therefore, violated the general principle of legal certainty, as the applicant had argued. Firstly, the distinction between orders that were merely “defective” and those that were “void” was very clear in German law. Secondly, even though the Court of Appeal’s decision to remit the case to the court of first instance ran counter to the wording of the Code of Criminal Procedure, which required the appeal court to take the decision on the merits, it was based on a well-established jurisprudential exception to that rule.   Lastly, the Court considered that remitting the case to a lower Court was a recognised technique for establishing in detail the facts and for assessing the relevant evidence and that the benefits of remitting the case could outweigh the inconvenience caused by any delay. It further considered that the decision to remit had not been arbitrary in the applicant’s case.   The Court therefore found that the applicant’s detention was lawful and in accordance with a procedure prescribed by law for the purposes of Article 5 § 1.   Article 5 § 4   As regards the speed with which the review was conducted, the Court reiterated that in guaranteeing a right of challenge to detainees, Article 5 § 4 also proclaimed the right to persons unlawfully detained to a speedy judicial decision ordering their release. Endorsing the Chamber’s reasoning, the Court found that the Düsseldorf Court of Appeal’s decision of 14 October 2002 to remit the case to the court of first instance had unjustifiably delayed the process of judicial review, in violation of Article 5 § 4.   As regards the inability of the applicant’s lawyer to gain access to the sections of the case file submitted by the prosecution, the Court reiterated that appeals against detention must be adversarial and ensure equality of arms between the prosecution and the defence. Under the Court’s settled case law, 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. There had therefore been a violation of Article 5 § 4 on that account also.     Judges Rozakis, Tulkens, Casadevall, Gyulumyan, Hajiyev, Spielmann, Berro-Lefèvre and Bianku expressed a joint partly dissenting opinion, which is annexed to the judgment.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone : 00 33 (0)3 88 41 28 30) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Grand Chamber judgments are final (Article 44 of the Convention). [2] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [3] This summary by the Registry does not bind the Court.