AS TO THE ADMISSIBILITY OF
Application No. 23541/94
by Luis Antonio GARCIA ALVA
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 January 1994 by
Luis Antonio GARCIA ALVA against Germany and registered on
28 February 1994 under file No. 23541/94;
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
21 March 1996 and the observations in reply submitted by the
applicant on 7 May 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1964 in Lima, is a Peruvian citizen. When
lodging his application, he was detained in a prison in Berlin. In the
proceedings before the Commission, he is represented by Mr. M. Zieger,
a lawyer practising in Berlin.
A. Particular circumstances of the case
The facts, as submitted by the parties, may be summarised as
follows.
The Berlin prosecution authorities investigated against the
applicant and other persons on the suspicion of being involved in drug-
trafficking (Handel mit Betäubigungsmitteln). In March 1993 when
questioned as a witness in the context of other investigation
proceedings, Mr. K., who had been convicted of drug-trafficking in 1992
and sentenced to twelve years' imprisonment, outlined his drug-
trafficking in Germany since 1991 and named several persons involved
therein, including the applicant. He gave more details on these issues
upon his questioning in Berlin in late March. He stated inter alia
that the applicant had once kept 16kg and on four occasions 1,5kg of
cocaine for a third person in an apartment in Berlin. He also
maintained that the applicant had twice sold him cocaine.
On 6 April 1993 preliminary investigations were initiated against
the applicant on the suspicion of having committed offences under the
Narcotics Act (Verstoß gegen das Betäubungsmittelgesetz). In the
evening of the same day, the applicant was arrested.
In the morning of 7 April 1993 the applicant was questioned by
the Berlin police authorities. In the course of this questioning, he
was informed that, following the statements made by the witness K.,
there was a strong suspicion that in 1991 he had kept 22kg of cocaine
for one Mr. A.C. and that he had acted as an accomplice to the offence
committed by Mr. A.C., namely drug-trafficking; moreover, that he had
sold 40g of cocaine to the witness K. The applicant thereupon
explained how he had met Mr. A.C. and that he had known about his
involvement in drug-trafficking. He also made statements on the
involvement of third persons in drug-trafficking. He denied the
accusations raised by the witness K.
Still on 7 April 1993 he was brought before an investigating
judge (Haftrichter) at the Berlin-Tiergarten District Court
(Amtsgericht) who, after having heard the applicant, issued a warrant
of arrest (Haftbefehl) against him. According to the arrest warrant,
the applicant was suspected of having as a dealer received in 1991
several deliveries of cocaine (total 6kg) from A.C., against whom
separate criminal proceedings were pending; of having received further
deliveries (a total of 16kg) between 16 and 18 December 1991; and of
having sold in 1991, for a price of DEM 3,000, two lots of cocaine to
K., who was likewise prosecuted in separate proceedings. The applicant
was informed about the contents of the arrest warrant.
On 8 April 1993 the applicant's defence counsel applied with the
Berlin Public Prosecutor's Office (Staatsanwaltschaft) for access to
the criminal files. The Prosecutor's Office sent copies of the record
on the questioning of the applicant, on the search of his premises, on
the hearing before the investigating judge and of the arrest warrant.
As regards the remainder of documents contained in the files, counsel's
request was dismissed, pursuant to S. 147 para. 2 of the German Code
of Criminal Procedure (Strafprozeßordnung) on the ground that such
consultation would endanger the course of the investigations.
Subsequently the applicant chose Mr. Zieger as his new defence
counsel who repeated the request on 4 May 1993.
On 14 May 1993 the Public Prosecutor's Office again sent copies
of the above-mentioned documents and, as regards the remainder, replied
that for the time being a full inspection of the file could not be
granted, as otherwise the purpose of the investigation proceedings
would be jeopardized.
On 27 May 1993 the District Court, after an oral hearing in the
presence of the applicant, his counsel and the Prosecutor, ordered that
detention on remand should continue. The District Court had particular
regard to the statements made by the witness K. who had been further
questioned in the meantime. Neither the applicant nor his counsel were
given access to the minutes of the questioning of this witness.
On 14 June 1993 the Berlin Regional Court (Landgericht) dismissed
the applicant's appeal (Beschwerde). The Regional Court observed that
it was not competent to decide on the applicant's complaint about the
refusal of full access to the files. The Regional Court found that
there was a risk of collusion.
On 15 July 1993 the Berlin Court of Appeal (Kammergericht)
dismissed the applicant's further appeal. The Court of Appeal found
that the applicant had orally been sufficiently informed about the
statements made by the witness K. He had thereby been in a position
effectively to defend himself. Insofar as the applicant had invoked
Article 5 para. 4 of the Convention and the Lamy judgment of the
European Court of Human Rights, the Court of Appeal considered that the
applicant's case was distinguishable in that access to the files was
not fully excluded but only to the extent that legitimate public
interests in an effective prosecution of offenders required such
measures. The Court of Appeal confirmed the risk of collusion.
On 9 August 1993 the applicant lodged a constitutional complaint
(Verfassungsbeschwerde) with the Federal Constitutional Court
(Bundesverfassungsgericht). Furthermore, counsel requested the
Prosecutor's Office that the incriminating passages of the statements
made by the witness K. should be read out or otherwise be made known
to him. According to a file note of 12 August 1993, the Public
Prosecutor's Office was not prepared to grant full access to the files
as the records on the questioning of the witness concerned contained
information about further suspected persons and about other
investigation proceedings where arrest or search warrants had not yet
been executed.
On 13 August 1993 applicant's counsel obtained copies of the
records on the questioning of witness K. to the extent that they
related to the applicant. Other passages had been blackened.
On 23 August 1993 counsel again requested full access to the
files as the copies sent to him were not comprehensible as a
consequence of the blackened passages. Moreover, he requested further
investigations. The request for full access to the files was dismissed
on 25 August 1993. The requested investigations were carried out.
On 13 September 1993 the Public Prosecution informed applicant's
counsel that there were no longer any reasons to deny full inspection
of the files, and the Federal Constitutional Court was also informed
thereof. In view of this development, the Federal Constitutional Court
asked the applicant whether he wished to maintain his constitutional
complaint. The applicant's reply was affirmative.
On 27 October 1993 a panel of three judges of the Federal
Constitutional Court, referring to S. 93b read in conjunction with
S. 93a of the Federal Constitutional Court Act (Bundesverfassungs-
gerichtsgesetz) refused to entertain the constitutional complaint.
On 12 July 1994 the applicant was convicted on part of the
charges which had been brought against him, namely of having acted as
an accomplice to drug-trafficking in respect of the storage of 16kg and
6kg of cocaine. He was sentenced to four years' imprisonment. The
time he had spent in detention on remand was counted towards the
sentence. The judgment became final.
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
having 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 do 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
The applicant complains under Article 5 paras. 2 and 4 of the
Convention that his detention on remand was unlawful insofar as, and
as long as, his counsel was not allowed to inspect the files. He
submits that this measure deprived him of his right to be informed
promptly of the reasons for his arrest and of the possibility to defend
himself in an adequate manner and in particular to obtain his release
from detention on remand. He furthermore maintains that the violation
was aggravated by further isolation measures, such as exclusion from
the common recreation hour in prison and limited visiting facilities.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 January and registered on
28 February 1994.
On 17 January 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
21 March 1996. The applicant replied on 7 May 1996.
THE LAW
1. The applicant complains that his defence counsel was denied
access to part of the criminal files in his case. He submits that he
was not, therefore, promptly informed about the charges against him and
could not properly present his defence and contest the reasons for his
detention on remand. He invokes Article 5 paras. 2 and 4
(Art. 5-2, 5-4) of the Convention.
Article 5 paras. 2 and 4 (Art. 5-2, 5-4) provide as follows:
"2. Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and
of any charge against him.
...
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."
The Commission finds that the applicant's complaint about the
lack of full access to the criminal files, in particular the statements
made by the witness K., falls within the ambit of Article 5 para. 4
(Art. 5-4) of the Convention.
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. They maintain
that the applicant had been informed of the grounds for suspicion and
items of evidence against him, as well as the grounds for his
detention, in such a way as to enable him effectively to exercise his
defence rights. Moreover, the Government explain the refusal of access
to the files by the fact that the investigations against the applicant
formed part of a complex of proceedings concerning several accused
persons in the milieu of the Columbian drugs mafia. With regard to the
conspiratorial behaviour of all those concerned, the establishment of
the truth would have been hindered, if full access had been granted too
early.
The applicant objects to the Government's views. He maintains
that his counsel had been in a position to set out his defence
effectively and to discuss in particular the credibility of the witness
in question.
The Commission considers, in the light of the parties'
submissions, that the applicant's complaint under Article 5 para. 4
(Art. 5-4) 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 this complaint 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.
2. The applicant may further be understood as generally complaining
that, contrary to Article 5 para. 2 (Art. 5-2), he was not promptly
informed about the reasons of his arrest.
The Commission recalls that paragraph 2 of Article 5 (Art. 5-2)
contains the elementary safeguard that any person arrested should know
why he is being deprived of his liberty. This provision is an integral
part of the scheme of protection afforded by Article 5 (Art. 5): by
virtue of paragraph 2 any person arrested must be told, in simple,
non-technical language that he can understand, the essential legal and
factual grounds for his arrest, so as to be able, if he sees fit, to
apply to a court to challenge its lawfulness in accordance with
paragraph 4. Whilst this information must be conveyed 'promptly' (in
French: 'dans le plus court délai'), it need not be related in its
entirety by the arresting officer at the very moment of the arrest.
Whether the content and promptness of the information conveyed were
sufficient is to be assessed in each case according to its special
features (cf. Eur. Court HR, Fox, Campbell and Hartley v. the United
Kingdom judgment of 30 August 1990, Series A no. 182, p. 19, para. 40;
Murray v. the United Kingdom judgment of 28 October 1994, Series A no.
300-A, p. 31, para. 72).
In the present case, the applicant was arrested in the evening
of 7 April 1993. When questioned by the police authorities in the
course of the next morning, he was informed about the charges against
him, namely several offences under the Narcotics Act and the
accusations levelled against him by the witness K. were outlined.
Still on the same day, he was heard by the investigating judge and he
was informed about the contents of this arrest warrant.
In these circumstances, the Commission considers that the
applicant's submissions regarding the information given to him upon his
arrest do not disclose any appearance of a breach of Article 5 para. 2
(Art. 5-2) of the Convention.
3. As regards the remainder of the applicant's complaints about the
conditions of his detention, the Commission finds that, having regard
to all the material in its possession, that the applicant's submissions
do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols.
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 (Art. 5-4);
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy