FIFTH SECTION
DECISION
Application no. 57249/09
by Dincer GÜL
against Germany
The European Court of Human Rights (Fifth Section), sitting on 4 January 2012 as a Chamber composed of:
Dean Spielmann, President,
Elisabet Fura,
Karel Jungwiert,
Boštjan M. Zupančič,
Mark Villiger,
Ganna Yudkivska,
Angelika Nußberger, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 21 October 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Dincer Gül, is a Turkish national who was born in 1968. His last known place of residence in Germany was in Garbsen. He was represented before the Court by Mr M.-O. Nordhorn, a lawyer practising in Steyerberg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On an unspecified date, the Hannover prosecution authorities started an investigation against the applicant and several co-suspects on suspicion of drug trafficking.
On 28 January 2005 the Hannover District Court ordered that the applicant’s parents’ apartment be searched. The Court found that on the basis of information obtained by means of surveillance as well as telephone tapping in the course of preliminary proceedings (Ermittlungsverfahren) instituted against the applicant, there were grounds for suspecting that drugs, implements used for drug trafficking and consumption, as well as cash proceeds from drug deals were being stored in the applicant’s parents’ flat. The search warrant stated that in the course of the investigations a suspicion had arisen that co-suspect (Mitbeschuldigter) K. was storing and trafficking drugs for the applicant’s benefit. According to the information provided in the search warrant, on 25 January 2005, K. had received a telephone call from the Dutch town of Venlo by an unidentified male person who had informed him in Turkish that on 27 January 2005 at eight o’clock in the morning a “friend” would arrive at K.’s domicile. On the occasion of a telephone conversation on 26 January 2005 at around noon, K. informed the applicant that nobody had yet come by. Later that day the applicant informed K. over the phone that the said friend would arrive that evening. At around 6 p.m. K. received a further telephone call by an unidentified person informing him that due to an accident the latter was unable to drop by. Later the same evening the applicant phoned K. to inquire about his “uncle’s” arrival and the “entrusted items” and said he would return the next day. During a further telephone conversation on 27 January 2005, the applicant informed K. that a search had been carried out at the “friends’” place and that their arrival was not to be expected until the following day. The search warrant indicated that on the basis of the aforementioned telephone conversations’ content the court found that there were grounds for suspecting that the delivery of drugs and the applicant’s return were imminent. Furthermore, through surveillance of the applicant it had been established that he had frequently stayed for extended periods in his parents’ apartment and that on 8 January 2005 he had travelled with his father by car to the Dutch town of Venlo, presumably with a view to initiating a drug deal.
On 1 February 2005 the Neustadt District Court issued an arrest warrant ordering the applicant’s detention on remand on suspicion of having imported drugs, an offence punishable under the Narcotics Act (Betäubungsmittelgesetz). In the detention order, running to some one and a half pages, the District Court found that there was a strong suspicion that the applicant - acting jointly with co-suspects B., D., and K. - had coordinated the importation and delivery of 4,322 grams of marijuana by B. and D. to K.’s home address by means of several telephone conversations with K. The strong suspicion of the applicant having committed the offence resulted from the seizure of the drugs on the occasion of the search of his parents’ apartment, the witness statements of three police officers who had been involved in the search as well as from the information obtained in the course of police surveillance and the preliminary proceedings. The court further found that there was a risk of the applicant’s absconding in view of an expected prison sentence of at least two years. Since considerable amounts of money had been seized from the co-suspects, it had to be assumed that the criminal gang disposed of sufficient financial means to enable the applicant to abscond. Furthermore, the latter maintained good connections abroad, in particular in Turkey, where he was presumably staying at present.
By written submissions dated 17 February 2005 the applicant’s counsel informed the Hannover Public Prosecutor’s office that he had been mandated by the applicant and requested to be granted access to the file in the preliminary proceedings instituted against the applicant. He reiterated his request by letter of 17 March 2005.
On 24 March 2005 the Hannover Public Prosecutor’s Office informed counsel that for the time being his request to inspect the files had to be refused pursuant to Article 147 § 2 of the Code of Criminal Procedure (Strafprozessordnung - see “Relevant domestic law” below) on the ground that the preliminary investigations were ongoing and disclosure of the files might jeopardise the purpose of the investigations.
By written submissions dated 12 April 2005 the applicant’s counsel applied for a court decision pursuant to section 23 of the Introductory Act to the Courts Act (Einführungsgesetz zum Gerichtsverfassungsgesetz, EGGVG) as to whether access to the files should be granted. He claimed that for the time being he had only obtained knowledge of the search warrant’s content but that his inquiry with the Public Prosecutor’s Office as to whether a detention order had been issued against the applicant had been to no avail. He contended that where an arrest warrant was issued, the suspect would at least have to be granted the right to examine the part of the file providing information as to the reasons for his detention in order to be able to mount an effective defence.
The application was dismissed by the Celle Court of Appeal as inadmissible by a decision of 4 May 2005. The Court of Appeal held that according to Article 147 § 5 of the Code of Criminal Procedure, pending the termination of the preliminary investigation, it was for the Public Prosecutor’s Office to decide whether to grant access to the files or not and that therefore a disciplinary complaint (Dienstaufsichtsbeschwerde) against the Public Prosecutor’s Office would be the only appropriate remedy in the case at hand. Relying in particular on a statement obtained from the Chief Public Prosecutor (Generalstaatsanwalt) on 29 April 2005, the Court of Appeal further found that the charges brought against the applicant were clearly set out in the search warrant dated 28 January 2005 and the applicant himself had confirmed that he was aware of the search warrant’s content. There existed thus no particular circumstances that would require an exceptional quashing of the Prosecutor’s decision to refuse access to the file.
By a letter dated 1 February 2006 the Hannover Public Prosecutor’s Office informed the applicant that access to the file was still restricted in accordance with Article 147 § 2 of the Code of Criminal Procedure and that such restriction would remain valid as long as the applicant was on the run.
A further request by counsel to inspect the files dated 24 July 2007 was rejected by the Hannover Public Prosecutor on 27 July 2007 with similar reasoning.
On 22 January 2008 the applicant lodged a disciplinary complaint with the Hannover Public Prosecutor’s Office stating that the only information he had received so far with respect to the investigations was a copy of the search warrant of 28 January 2005 as well as the detention order of 1 February 2005. While reiterating the grounds for his request set out in his written submissions to the Celle Court of Appeal of 12 April 2005, he argued in addition that there was no longer an indication that the purpose of the investigations would be jeopardised. This was in particular true in view of the fact that since the Court of Appeal’s decision of 4 May 2005 more than two years had passed, the proceedings against the applicant’s co‑suspects had meanwhile been terminated and that the applicant had been abroad for a considerable time, which excluded any danger of collusion (Verdunklungsgefahr) on his part.
The complaint was dismissed by the Celle Chief Public Prosecutor’s Office (Generalstaatsanwaltschaft) by a decision of 4 February 2008 holding in particular that according to counsel’s own submissions he had at his disposal a copy of the Neustadt District Court’s detention order of 1 February 2005 and that the files revealed that he had discussed with the competent Public Prosecutor on several occasions what impact a possible pleading to the charge (Einlassung) by the applicant might have on his expected sentence. In the event of a plea, it was essential that the applicant give a description of the circumstances of the case without having knowledge of any facts established in the investigation file. Furthermore, there were indications that the applicant still maintained contacts with circles involved in organised drug trafficking in Turkey. There were thus still grounds to believe that giving him access to the file might put the preliminary investigations, which had not yet been terminated, at risk.
On 17 April 2008 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint of 7 March 2008 against the aforementioned decisions of the Hannover Public Prosecutor, the Celle Chief Prosecutor and the Celle Court of Appeal on the ground that it was inadmissible and lacked any prospect of success. The Constitutional Court held in particular that due to the period of eight months that had elapsed since the last decision of the Hannover Public Prosecutor on 27 July 2007 rejecting the applicant’s request, as confirmed by the Chief Public Prosecutor’s decision of 4 February 2008, the conditions underlying the impugned decisions might meanwhile have significantly changed in the course of the preliminary proceedings, which had now lasted for almost three years. Under these circumstances the applicant was advised to pursue his objective by having recourse to the most effective and rapid remedy available, which in the case at hand would be a renewed request with the competent Public Prosecutor to inspect the file. For this reason he lacked a legitimate interest (Rechtsschutzbedürfnis) in having his constitutional complaint examined. In the event of a further refusal by the Public Prosecutor and following an unsuccessful disciplinary complaint, a renewed constitutional complaint could be considered.
On 28 April 2008 defence counsel lodged a further application with the Hannover Public Prosecutor for permission to inspect the file in the preliminary proceedings. By a letter dated 30 April 2008 his request was again refused pursuant to Article 147 § 2 of the Code of Criminal Procedure on the grounds that the investigations were ongoing and that the reasoning provided by the Celle Chief Public Prosecutor in his decision of 4 February 2008 was still valid. By a decision of 29 May 2008 the Celle Chief Prosecutor, referring to the reasoning in the decision of 4 February 2008 and confirming that the preliminary proceedings had not yet been terminated, rejected the applicant’s related disciplinary complaint as unfounded. The decision was served on the applicant on 6 June 2008.
By a decision of 22 April 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint lodged on 1 July 2008 without providing reasons. The decision was served on the applicant on 30 April 2009.
It appears that the applicant is still at large.
B. Relevant domestic law
Article 147 § 1 of the Code of Criminal Procedure provides that defence counsel is entitled to consult the files and to inspect the exhibits which have been presented to the trial court or which would have to be presented to the trial court in the event of indictment. Paragraph 2 of this provision provides that access to part or all of the file or to the exhibits may be refused until the preliminary investigation has ended if it might otherwise be put at risk. However, in the event that the accused is remanded in custody or, in the case of provisional arrest, pre-trial custody has been requested, information of relevance for the assessment of the lawfulness of that deprivation of liberty shall be made available to defence counsel in suitable form and, as a rule, access to the files shall be granted.
Pending the termination of the preliminary investigations, it is for the Public Prosecutor’s Office to decide whether to grant access to the files or not; thereafter the decision rests with the president of the trial court (Article 147 § 5). The Public Prosecutor shall revoke an order refusing to allow inspection of the files upon conclusion of the investigation at the latest. Defence counsel shall be notified as soon as he once again has the unrestricted right to inspect the files.
Pursuant to section 23 of the Introductory Act to the Courts Act (Einführungsgesetz zum Gerichtsverfassungsgesetz, EGGVG) the ordinary courts shall decide, upon request, on the lawfulness of directives, orders or other measures taken by the judicial authorities with a view to regulating individual issues in the sphere of, inter alia, criminal law. The same applies to directives, orders or other measures taken by the law enforcement authorities regarding the imposition of detention on remand.
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).
Article 114 §§ 1 and 2 of the Code of Criminal Procedure provides that detention on remand must be ordered by a judge in a written detention order. The detention order must identify the accused, and specify 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).
Pursuant to Article 304 of the Code of Criminal Procedure an appeal may be lodged with the competent court by the defendant or defence counsel against a detention order that has not yet been executed with a view to having it quashed (Haftbeschwerde).
Pursuant to section 230 of the Code of Criminal Procedure, German law, in principle, does not allow for an in-absentia trial. A limited number of exceptions to this rule are notably laid down in sections 231 et seq. A hearing may, in particular, be held in the defendant’s absence in cases in which he has been summoned correctly and only a fine of up to 180 “daily rates” (Tagessätze, a unit based on the average one-day net income of the offender) is to be expected (section 232 of the Code of Criminal Procedure).
COMPLAINTS
The applicant complained under Article 6 § 3 (a) and (b) of the Convention that his right to a fair trial and right to be heard had been violated by the Public Prosecutor’s refusal to grant his counsel access to the files in the preliminary proceedings.
He maintained that any restriction of a defence counsel’s right to inspect the investigation file could only be temporary and not last for several years as in the case at hand. In view of the period of time that had elapsed since the institution of preliminary proceedings in 2005 and considering that the proceedings against other co-suspects involved in the crimes under investigation had meanwhile been terminated, there was further nothing to establish that granting the applicant’s counsel access to the files could put the investigations at risk. It was unlikely that during the period following the Celle Court of Appeal’s decision of 4 May 2005 substantial investigations had been carried out or could be expected in the future. In any event, in view of the considerable duration of the preliminary proceedings, their closure had to be considered as being imminent. Furthermore, given that the applicant had been abroad for some time there was no risk of any suppression of evidence or collusion on his part.
Finally, the applicant argued that in the event that an arrest warrant was issued against a suspect the latter would at least have to be granted access to the part of the investigation file that was decisive for assessing the lawfulness of the envisaged deprivation of his liberty. In such circumstances, an effective defence could only be provided if the same procedural guarantees applied as in the case of a judicial review of an ongoing detention on remand. It could not be reasonably expected of the applicant that he expose himself to detention for the purpose of obtaining access to the files.
THE LAW
The applicant complained that the refusal by the Hannover public prosecution authorities to grant his lawyer access to the files in the preliminary proceedings instituted against him, as confirmed by the decisions of the domestic authorities and courts, prevented him from mounting an effective defence in violation of his right to a fair trial as stipulated under Articles 6 §§ 3 (a) and (b). His right to a fair trial had also been breached by the domestic authorities’ failure to hear him in the course of the preliminary proceedings.
The Court considers that the applicant’s complaint may raise an issue under Article 6 § 1 of the Convention as well as under Article 6 § 3 (a) and (b), which state:
“1. In the determination of... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
...
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
...”
As the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set out in paragraph 1, the Court will examine the applicant’s complaints under these provisions taken together (see Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 59, ECHR 2000-II).
The Court notes that it appears that in the instant case the applicant, who is on the run, has never been arrested, the preliminary proceedings instituted against him have not been terminated, no bill of indictment has been issued with respect to the criminal offences he is suspected of, nor has a trial been opened. A question may therefore arise as to whether the applicant was charged with a criminal offence in the meaning of Article 6 §§ 1 and 3 of the Convention.
In that connection, the Court reiterates that in the context of the Convention the words “charged” and “criminal charge” have an autonomous meaning and must be interpreted with reference to the objective rather than formal situation (see Padin Gestoso v. Spain (dec.), no. 39519/98, ECHR 1999‑II (extracts), and Casse v. Luxembourg, no. 40327/02, § 71, 27 April 2006). A “charge”, for the purposes of Article 6 of the Convention, may in general be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”. This may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he was to be prosecuted or the date when the preliminary investigations were opened (see, among other references, G.K. v. Poland, no. 38816/97, § 98, 20 January 2004).
The Court has further held that a “charge” means not only official notification of an allegation that a person has committed a criminal offence but also any measure carrying the implication of such an allegation and substantially affecting the situation of the suspect (see Šubinski v. Slovenia, no. 19611/04, § 62, 18 January 2007, and Eckle v. Germany, 15 July 1982, § 73, Series A no. 51).
In the present case the Court notes that according to the applicant’s submissions the only information he ever obtained about the preliminary proceedings instituted against him on suspicion of drug trafficking resulted from the search warrant dated 28 January 2005 and the detention order of 1 February 2005. It is unclear at what date the applicant obtained knowledge of the content of the said documents. According to the applicant’s counsel’s submissions to the Celle Court of Appeal of 12 April 2005 requesting a court decision on whether access to the investigation file should be granted, he only had knowledge of the search warrant’s content. Within the scope of the disciplinary complaint lodged with the Hannover Public Prosecutor’s Office on 22 January 2008 counsel confirmed that he also disposed of a copy of the detention order of 1 February 2005.
However, the Court observes that counsel’s first request to be granted access to the investigation file dates 17 February 2005, and thus the applicant must have already had knowledge of the pending investigations and at least of the search warrant’s content at that point in time. It is therefore from this date at the latest that the applicant must be considered to have been directly affected by the investigations and consequently to have been charged with a criminal offence in the meaning of Article 6 §§ 1 and 3 of the Convention.
The Court observes that the search warrant of 28 January 2005 not only referred to the relevant provision of the Narcotics Act setting out the criminal offence the applicant was suspected of having committed, but also gave a rather detailed account of the factual circumstances constituting the basis of that suspicion. The search warrant specified the time and content of the several telephone conversations conducted between the applicant and co-suspect K. in the period from 25 to 27 January 2005 that had led the District Court to assume that there were grounds for suspecting that the delivery of drugs and the applicant’s return to Germany were imminent.
The Court therefore shares the view of the domestic authorities and courts that the charges brought against the applicant were clearly set out in the search warrant and finds that at this stage of the investigation proceedings he was informed in sufficient detail of the nature and cause of the accusations against him in compliance with Article 6 § 3 (a) of the Convention. The allegations contained in the search warrant were further supplemented by the information provided in the detention order of 1 February 2005.
As regards the repeated rejections of the applicant’s requests to be granted access to the investigation file, the Court acknowledges the need for criminal investigations to be conducted efficiently, which may imply that part of the information collected during them is to be kept secret in order to prevent suspects from tampering with evidence and undermining the course of justice (Garcia Alva v. Germany, no. 23541/94, § 42, 13 February 2001). This is particularly true where the suspect, as in the instant case, is on the run and cannot be questioned by the prosecution authorities. The domestic authorities in the case at hand have indeed repeatedly pointed out that in view of the applicant’s absconding and his presumed connections with circles involved in organised drug trafficking in Turkey, disclosure of the files might put the ongoing preliminary investigation at risk.
The Court reiterates that it has nevertheless found that this legitimate goal cannot be pursued at the expense of substantial restrictions on the rights of the defence. As regards proceedings conducted under Article 5 § 4 of the Convention, it has considered that in view of the dramatic impact of the deprivation of liberty on the fundamental rights of the persons concerned, these proceedings should in principle also meet, to the largest extent possible under the circumstances of an ongoing investigation, the basic requirements of a fair trial, even if conducted at pre-trial stage. In particular, the Court has held that information which is essential for the assessment of the lawfulness of a detention should be made available in an appropriate manner to the suspect’s lawyer (see Garcia Alva, cited above, § 42). The Court observes that this principle also appears to be reflected in Article 147 § 2 of the German Code of Criminal Procedure, which stipulates that in the event that the accused is remanded in custody, information of relevance for the assessment of the lawfulness of that deprivation of liberty shall be made available to defence counsel in suitable form and, as a rule, access to the files shall be granted.
The Court, however, does not share the applicant’s view that the same considerations and the same procedural guarantees as in the case of a judicial review of an ongoing detention on remand apply where a suspect is on the run and has not yet been deprived of his liberty. Consequently, it finds that in the circumstances of the instant case the refusal to grant access to the investigation files at the pre-trial stage with a view to enabling the conduct of efficient criminal investigations does not amount to a substantial restriction on the rights of the defence. The Court notes in this context that the lawfulness of the arrest warrant as such could have been contested by the applicant before the domestic courts in separate proceedings and that there is nothing to suggest that the applicant was prevented from having recourse to the appropriate domestic remedies in this regard. However, in the instant case the national authorities were required to decide on the question of whether access to the investigation file might put the ongoing investigations at risk; the lawfulness of the detention order was neither the subject of the domestic proceedings nor of the instant application.
The Court is further of the opinion that there is no indication that the refusal of the public prosecution authorities to grant the applicant access to the investigation files was arbitrary. The prosecution authorities pointed out that since the applicant was suspected of maintaining contacts with circles involved in organised drug trafficking in Turkey and in view of his absconding there were still grounds to believe that access to the file might put the ongoing preliminary investigations at risk. The prosecution authorities further specified that it was essential that the applicant, in the event of a possible pleading to the charge, give a description of the circumstances of the case that was not influenced by the facts established in the investigation file.
The fact that these considerations did not only form part of the reasoning provided in the decisions of the public prosecution authorities refusing the applicant’s requests to access the files but were also the subject of discussions they conducted with the applicant’s counsel on several occasions indicates that the domestic authorities took into account the interests of the defence and the accused in their respective decisions and weighed them against the necessity to keep the file in the preliminary investigations secret.
In these circumstances, the Court is satisfied that the rights of the defence were not restricted to an extent that is incompatible with the guarantees provided by Article 6 of the Convention.
There is further nothing to establish that if a trial were to be opened against the applicant it would be likely to be seriously prejudiced on the ground that counsel was refused access to the file during the preliminary investigations (see Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275) or that the applicant would not be granted adversarial proceedings.
The Court finally observes that German law does not allow a criminal trial of the nature in question to be conducted in the suspect’s absence and that it is therefore imputable to the applicant, who had gone into hiding abroad, that criminal proceedings could not be pursued (see H.M v. Germany (dec.) no. 62512/00, 9 June 2005).
Having regard to the above considerations, the Court holds that the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsDean Spielmann Deputy Registrar President
Full & Egal Universal Law Academy