FIFTH SECTION
DECISION
Applications nos. 53792/09 and 11320/13
Erzebet JUNIOR against Germany
The European Court of Human Rights (Fifth Section), sitting on 10 December 2013 as a Committee composed of:
Ganna Yudkivska, President,
Angelika Nußberger,
André Potocki, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above applications lodged on 6 October 2009 and 3 February 2013 respectively,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Erzebet Junior, is a Serbian national, who was born in 1971 and lives in Ada, Serbia. She was represented before the Court by Mr D. Hagmann, a lawyer practising in Mönchengladbach.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. In 1991 the applicant moved from her native Serbia to Germany where she was living without interruption until her return to Serbia in 2009. In 1993 she married a German national and in 1997 the couple’s son was born. The applicant and her husband separated in 2008 but remained married and continued to jointly own and operate a car wash enterprise, with the husband being the majority shareholder.
4. On 5 April 2009 the applicant found her husband dead on the premises of the car wash site. She was interviewed by the police the same day and when confronted with the assumption that her husband had been killed stated that she could not provide any indication as regards the identity of a possible perpetrator. Further police interrogations took place on 17 and 24 April 2009. On the occasion of the latter interview the police officers seized a pair of shoes belonging to the applicant with a view to comparing her shoe prints with those found at the crime scene. In reply to the applicant’s question whether she could return to Serbia in order to bury her husband’s urn, she was advised by the investigating police officers to consult with the head of the police department’s homicide division before doing so.
5. At the beginning of May 2009 the applicant, having obtained the police authorities’ permission to leave Germany over the phone, travelled with her son to Serbia in order to attend her husband’s funeral. She has not returned to Germany ever since and remains in Serbia with her son to this day.
6. On 11 May 2009 the Aachen District Court ordered that the applicant’s apartment be searched and that her and her son’s belongings be seized. The search was carried out the following day and a copy of the search warrant and seizure order (Durchsuchungs- und Beschlagnahmebeschluss) was left behind in the applicant’s apartment.
7. According to the search warrant and seizure order the applicant was suspected of having committed incitement to murder (Anstiftung zum Mord). The order further specified that it was to be expected that evidence in relation to the planning of the crime would be found in the applicant’s apartment, such as invoices from the locksmith who replicated a key used at the crime scene as well as cash destined by the applicant for paying co-suspect H. No information with respect to the victim or further perpetrators of the investigated crime or the details of how it had been committed was provided. As regards the results of the criminal investigations conducted so far as well as the means of evidence gathered, the order referred to an arrest warrant issued against the applicant the same day by the Aachen District Court under file no. 620 Gs 786/09a. The order did, however, not contain any specifications as regards the arrest warrant’s content.
8. By written submissions dated 26 May 2009 counsel for the applicant informed the Aachen Public Prosecutor’s Office that he had been mandated by the applicant and requested access to the files in the preliminary proceedings instituted against her. He further applied for his request to be referred to the competent court for decision should the prosecution authorities decide to refuse disclosure of the files.
9. On 28 May 2009 the Aachen Public Prosecutor’s Office, referring to the explanations given on the occasion of a previous telephone conversation, informed counsel that for the time being access to the files could not be granted since their disclosure might jeopardise the ongoing investigations.
10. By written submissions of 2 June 2009 to the Aachen prosecution authorities, counsel indicated that the applicant would be ready to participate in the proceedings if the competent domestic court granted her safe conduct (sicheres Geleit) and guaranteed that she would not be remanded in custody when entering Germany. Counsel further reiterated his application of 28 May 2009 for a court decision as regards his request to be granted access to the investigation files. He further asked to be officially assigned as counsel to the applicant.
11. On the same day counsel also applied to the Aachen District Court for the arrest warrant issued against the applicant on 11 May 2009 to be set aside or, alternatively, to be suspended. He contended that the applicant had not been provided with a copy of the arrest warrant and had therefore been deprived of any possibility to mount an effective defence in breach of her right to be heard and the principle of equality of arms enshrined in the Convention. Counsel further argued that, in any event, there were no grounds for the applicant’s arrest and an arrest warrant could, in particular, not be justified by a risk of the applicant absconding. She had cooperated with the investigative authorities while staying in Germany and had returned to her native Serbia with their approval and for reasons unrelated to the investigations pending against her.
12. On 9 June 2009 the Aachen Public Prosecutor’s Office transmitted copies of the minutes of the applicant’s examinations as witness conducted by the police on 5 April 2009 and 17 April 2009 as well as the record of her police interrogation dated 24 April 2009 (see above § 4) to counsel. The prosecution authorities did, however, refuse counsel access to the remainder of the file, again arguing that disclosure might jeopardise the investigations. The Aachen Public Prosecutor further informed counsel that his complaint had been forwarded to the competent court.
13. By a letter of 12 June 2009 the Aachen Regional Court informed counsel that a court decision on a complaint regarding the prosecution authorities’ refusal to grant access to the investigations files was only admissible under the conditions set out in Article 147 § 5 of the Code of Criminal Procedure. This was the case where the refusal concerned the records of the suspect’s interrogations by the investigating authorities, where access was denied even though preliminary investigations against a suspect had been officially closed or, finally, if the suspect was detained. The Regional Court held that none of the conditions applied in the instant case. The preliminary criminal proceedings against the applicant were still pending, the prosecution authorities had meanwhile provided counsel with the records of her police interviews conducted during the investigations and, finally, she still remained at large and was not remanded in custody. The Regional Court specified in this context that the fact that an arrest warrant was pending against the applicant was of no relevance for the question whether she was to be granted access to the investigation file.
14. By a decision of 23 June 2009 the same court rejected the applicant’s motion of 2 June 2009 for the arrest warrant to be set aside. It held that in the light of the outcome of the preliminary proceedings there existed a strong suspicion that the applicant had committed the investigated crime and that in view of its gravity, less severe measures than her detention on remand could not be envisaged. With reference to the arguments set out in its letter of 12 June 2009, the Regional Court confirmed that there was nothing to establish that the prosecution authorities’ refusal to grant the applicant access to the investigation files infringed domestic law and reiterated that the conditions for a court decision pursuant to Article 147 § 5 of the Code of Criminal Procedure were not met in the present case.
15. On 2 July 2009 the Regional Court, following the applicant’s appeal of 1 July 2009, refused to change its decision (Nichtabhilfe der Beschwerde) and forwarded the appeal to the Cologne Court of Appeal.
16. By written submissions to the Cologne Court of Appeal dated 14 July 2009, which were transmitted to the applicant by fax the following day, the Cologne Chief Public Prosecutor’s Office (Generalstaatsanwaltschaft) moved that the applicant’s appeal be rejected as ill-founded. The Chief Public Prosecutor acknowledged that pursuant to the Federal Constitutional Court’s case-law it followed from the constitutionally guaranteed right to a fair trial and right to be heard that counsel for a suspect who was remanded in custody had to be granted the right to examine the investigations files to the extent it was necessary to mount an effective defence. However, these considerations did not apply where an arrest warrant had been issued against a suspect but had not yet been executed. The Chief Public Prosecutor argued that the gravity and extent of the charges against a suspect as set out in the arrest warrant had a significant impact on the latter’s decision whether to face the investigations or not. In a situation like in the instant case there was thus a risk that disclosure of the arrest warrant’s content or access to the investigation files would jeopardise the purpose of the detention order. Hence, the prosecution authorities’ mandate to investigate the circumstances of the case had to prevail over the suspect’s interest to be informed about the grounds underlying the arrest warrant. Such interest was in any event guaranteed by German criminal procedure requiring that once arrested and brought before a judge, a suspect had to be informed about all incriminating facts and be granted the opportunity to contest the reasons on which the detention order was based.
17. Counsel for the applicant replied by written submissions dated 15 July 2009 sent to the Court of Appeal by fax in advance the same day. He reiterated, in particular, that the arrest warrant against the applicant could not be based on a risk of her absconding.
18. By a decision of the same day, served on the applicant on 20 July 2009, the Cologne Court of Appeal rejected the applicant’s appeal, endorsing the Chief Public Prosecutor’s finding that disclosing the files to the applicant would jeopardise the purpose of the investigations.
19. By a fax of 17 July 2009 the Court of Appeal informed counsel that his submissions of 15 July 2009 had reached the court after close of business that same day and thus after its decision on the applicant’s appeal had been adopted. However, there had been no reason for the Court of Appeal to await counsel’s comments on the Chief Public Prosecutor’s submissions since he had already had the opportunity to advance his legal assessment of the case within the scope of his application for the arrest warrant to be set aside. As far as the risk of the applicant’s absconding was concerned, the Court of Appeal pointed out that, contrary to her submissions, she had never received permission to travel abroad and that any related statements by police officers at a time when she had not yet been a suspect in the proceedings were of no legal relevance. Moreover, the applicant had not given an unconditional assurance that she would be ready to follow a writ of summons to return to Germany and face the proceedings instituted against her on suspicion of having instigated her husband’s murder.
20. On 29 July 2009 the applicant’s co-suspect H. who had been referred to in the search warrant of 11 May 2009 as well as a further co-suspect, B., were charged with having jointly murdered the applicant’s husband.
21. On 12 August 2009 the applicant lodged a constitutional complaint against the arrest warrant issued by the Aachen District Court on 11 May 2009 as well as the decisions of the Aachen Regional Court of 23 June 2009 and of the Court of Appeal dated 15 July 2009. Within the scope of the constitutional complaint she argued, inter alia, that the public prosecutor’s refusal to grant defence counsel access to the investigation files infringed the principle of equality of arms as well as the applicant’s right to be heard, both forming part of her right to a fair trial guaranteed under the Constitution as well as under Article 6 of the Convention. She further applied for the arrest warrant to be lifted with immediate effect.
22. By a decision of 3 September 2009 (file no. 2 BvR 1811/09) the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without providing reasons. It further held that, as a consequence, there was no need to decide on the applicant’s request for interim measures.
23. On 7 October 2009 the trial against H. and B. was opened before the Aachen Regional Court. The applicant’s request to be admitted as joint plaintiff to the prosecution (Nebenkläger) in the proceedings against the co-accused was rejected by the Regional Court on the ground that she was being prosecuted for having instigated H. and B. to murder her husband.
24. By a letter dated 20 October 2009 counsel asked the prosecution authorities to inform him once the preliminary proceedings against the applicant had been formally terminated.
25. The applicant was summoned to appear as witness at H. and B.’s trial and granted safe conduct for this purpose for the period from 16 November until 3 December 2009. She did not attend the witness hearing scheduled for 18 November 2009.
26. On 27 November 2009 an international alert for the applicant’s arrest was issued (internationale Ausschreibung zur Festnahme).
27. By a judgment of 14 December 2009 the Aachen Regional Court convicted B. and H. of having jointly murdered the applicant’s husband and sentenced each of the perpetrators to life imprisonment. It follows from the judgment’s reasoning that the Regional Court, relying in particular on a confession made by the accused B., found it established that the separately prosecuted applicant had instigated the co-accused to murder her husband.
28. On 28 May 2010 counsel lodged a complaint for failure to act with the Aachen Public Prosecutor’s Office arguing that the latter had not replied to his request of 2 June 2009 to be officially assigned as defence counsel to the applicant. He requested that the matter be referred to the competent court for decision.
29. By a letter dated 4 August 2010 to the Aachen Regional Court counsel for the applicant reiterated his request. In its reply of 3 September 2010 the Regional Court informed the applicant that the appointment of defence counsel by court order during pending preliminary criminal proceedings and without a related application by the prosecution authorities was only envisaged in the event it was likely that main proceedings would be opened against the suspect in the future. In the instant case it was, however, entirely open whether and when a trial would be conducted against the applicant and the conditions for the appointment of defence counsel were consequently not met.
30. On 27 October 2010 the preliminary proceedings against the applicant were provisionally discontinued in accordance with section 154f of the Code of Criminal Procedure on the ground that she remained at large and main proceedings could thus not be opened against her.
31. A further request by defence counsel of 15 August 2011 that the arrest warrant against the applicant be lifted was refused by a decision of the Aachen District Court dated 24 August 2011, as confirmed by the Aachen Regional Court on 30 August 2011.
32. By written submissions of 4 October 2011 the applicant appealed these decisions. Pointing in particular to the authorities’ obligation to conduct proceedings involving a suspect’s detention expeditiously, counsel argued that it was no longer proportionate to continue the preliminary criminal proceedings against the applicant and that they should be definitively closed and main proceedings opened before the competent court. He contended that the prosecution authorities persistently refused access to the investigation files and to appoint a mandatory defence counsel for the applicant on the ground that the preliminary proceedings were still pending against her. As a consequence the applicant did not have a possibility to participate in the proceedings and was prevented from exercising her rights of defence in breach of the principle of equality of arms. Furthermore, due to the arrest warrant pending against her, she was compelled to stay in her native Serbia even though she had never absconded or gone into hiding. She had travelled to Serbia with the investigative authorities’ permission and her place of residence in Serbia was known to the German authorities.
33. On 21 October 2011 the Aachen Regional Court refused to change its decision and forwarded the appeal to the Chief Public Prosecutor for comments with a view to obtaining a subsequent decision by the Cologne Court of Appeal.
34. By a decision of 8 November 2011 the Court of Appeal, having previously obtained the Chief Public Prosecutor’s observations, rejected the applicant’s appeal. The decision reproduces the entire text of the Chief Public Prosecutor’s submissions which, for their part, contain quotations from the arrest warrant dated 11 May 2009. According to the arrest warrant, the strong suspicion that the applicant instigated her husband’s murder resulted from the outcome of the police investigations, the witness statements gathered and in particular from the comprehensive and credible confession of the main perpetrator B. The latter had stated that the applicant had given the order to attack her husband with a view to at least causing him serious bodily harm and that she had promised co-suspect H. to pay him 20,000 euros in return.
The Chief Public Prosecutor noted that having regard to the outcome of the investigations conducted so far there remained a strong suspicion that the applicant had instigated the murder of her husband. In view of the gravity of the crime at issue as well as the risk of the applicant’s absconding that followed in particular from the considerable duration of the prison sentence to be expected in the event of a conviction it was still justified to uphold the arrest warrant. Moreover, the applicant had not answered the summons to appear before the Aachen Regional Court at her co-accused’s trial even though she had been granted safe conduct for this purpose. In the Chief Public Prosecutor’s opinion it was thus more likely that the applicant would evade her trial than participate in the proceedings. He further argued that, as opposed to the applicant’s submissions, there was nothing to indicate that the domestic authorities had not complied with their obligation to conduct the proceedings expeditiously. They had arranged for an international alert for the applicant’s arrest to be issued but did not dispose of any means to effect the applicant’s extradition to Germany. He finally specified that since the arrest warrant against the applicant had not been executed, a violation of the applicant’s constitutional rights due to the excessive length of a detention on remand was not at stake in the instant case.
The Cologne Court of Appeal, fully endorsing the Chief Public Prosecutor’s conclusions, emphasised in addition that it was the applicant who due to her escape to Serbia impeded the continuation of the proceedings.
35. On 12 December 2011 the applicant lodged a constitutional complaint against the decisions of the Regional Court and Court of Appeal dated 30 August 2011 and 8 November 2011 respectively.
36. By a decision of 27 July 2012 (2 BvR 2672/11), served on the applicant on 3 August 2012, the Federal Constitutional Court declined to consider the applicant’s constitutional complaint without giving reasons.
COMPLAINTS
37. The applicant complained under Article 5 § 1 of the Convention and Article 2 § 2 of Protocol 4 to the Convention that due to the arrest warrant pending against her in Germany as well as the international alert for her arrest she could not leave her native Serbia without running the risk of being detained and extradited to Germany (application no. 53792/09). Since German criminal law did not provide for limitation periods as regards the crime of incitement to murder there was a risk that she would be permanently exiled in Serbia. The resulting restriction of her freedom of movement was, in particular in view of its presumed duration, tantamount to a deprivation of liberty which was, moreover, not justified under Article 5 § 1 (c) of the Convention and thus unlawful. A strong suspicion of her having committed the offence that was the subject of the arrest warrant could not be based on the facts and evidence that had not been available to the defence as a consequence of the prosecution authorities’ refusal to disclose the content of the investigation file. There was further nothing to indicate that the applicant had fled from Germany or gone into hiding abroad. By contrast, she had left Germany and travelled to Serbia with the permission of the competent police officers in order to bury her husband. Relying on Article 5 § 4 of the Convention the applicant contended that, as a consequence, the domestic authorities should have lifted the arrest warrant issued against her (application no. 11320/13).
38. The applicant further argued that the restrictions of her freedom of movement prevented her from maintaining the essential personal, social and economic relations she had established in Germany and thus infringed the right to respect for her private life guaranteed under Article 8 of the Convention (application no. 53792/09).
39. With reference to Article 5 § 4 and Article 6 §§ 1, 2 and 3 (a), (b) and (c) of the Convention the applicant submitted that the conduct of the preliminary criminal proceedings against her was unfair and did, in particular, not comply with the principle of equality of arms (application no. 53792/09). As counsel for the applicant was denied access to the investigation files and as a result had no knowledge of the outcome of the investigations nor even disposed of a copy of the arrest warrant, he did not have the possibility to mount an effective defence or to effectively challenge the arrest warrant in breach of Articles 5 § 4 and 6 § 3 (b) of the Convention. Since, in reality, disclosure of the files and an effective defence was subject to her returning to Germany and surrendering to custody, she was deprived of the right to defend herself through legal assistance by counsel in violation of Article 6 § 3 (c). She could not be expected to expose herself to detention for the purpose of obtaining access to the files. Moreover, she had not been informed promptly of the nature of the accusation against her as required by Article 6 § 3 (a) (applications nos. 53792/09 and 11320/13). She further contended that the measures ordered by the prosecution authorities, as confirmed by the domestic courts, were based on the mere suspicion that she had committed the investigated crime in breach of the presumption of innocence enshrined in Article 6 § 2 of the Convention (application no. 53792/09).
40. Relying on Article 5 § 3 of the Convention the applicant complained that the domestic authorities failed to comply with their obligation to conduct the proceedings expeditiously, in particular having regard to the still pending arrest warrant that continued to restrict her freedom of movement (application no. 11320/13).
41. The applicant finally complained under Article 13 of the Convention that domestic law did not provide for an effective domestic remedy with a view to challenging the prosecution authorities’ denial to have the investigation file examined by the defence (application no. 53792/09).
THE LAW
42. Pursuant to Rule 42 § 1 of the Rules of Court, the Court decides to join the applications given their similar factual and legal background.
A. The applicant’s complaints regarding the violation of her right to a fair trial under Article 6 of the Convention
43. The applicant complained that the refusal by the Aachen public prosecution authorities to grant her lawyer access to the files in the preliminary criminal proceedings instituted against her, as confirmed by the decisions of the domestic courts, prevented her from mounting an effective defence in violation of her right to a fair trial. Moreover, the impugned decisions by the domestic authorities were based on a mere suspicion that she had instigated her husband’s murder and thus infringed her right to be presumed innocent.
44. The Court considers that the applicant’s complaints may raise an issue under Article 6 §§ 1 and 2 of the Convention as well as under its § 3 (a) and (b) and (c), which state:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
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;
(c) to defend himself in person or through legal assistance of his own choosing...;
...”
45. The Court reiterates that paragraphs 2 and 3 of Article 6 of the Convention represent specific applications of the general principle stated in its paragraph 1. The presumption of innocence enshrined in paragraph 2 of Article 6 and the rights embodied in its paragraph 3 are constituent elements of the notion of a fair trial in criminal proceedings that is required by paragraph 1 (Deweer v. Belgium, 27 February 1980, § 56, Series A no. 35). Consequently, the applicant’s complaints referring to the different paragraphs of Article 6 will be examined under these provisions taken together.
46. The Court recalls that in the instant case the applicant has never been arrested but remains at large, the preliminary proceedings instituted against her have been provisionally discontinued, no bill of indictment has been issued with respect to the criminal offence she 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, 2 and 3 of the Convention.
47. 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).
48. 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).
49. In the present case the Court notes that while the applicant was aware that investigations into her husband’s presumed killing were under way when leaving for Serbia, it appears that until this point in time she had only been examined as witness and not as a suspect in the proceedings. The first clear indication that preliminary proceedings were instituted against her resulted from the search warrant and seizure order dated 11 May 2009 that was left behind by the police on the occasion of the search of the applicant’s apartment on 12 May 2009. The Court observes that counsel’s first request to be granted access to the file in the preliminary proceedings instituted against the applicant dates 26 May 2009, and it follows that the applicant must have had knowledge of the pending investigations, the search warrant’s content and, accordingly, the fact that an arrest warrant was pending against her 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 of the Convention. The Court further notes that while the investigations have been provisionally discontinued in 2010 due to the applicant’s continued absence, the arrest warrant against her is still pending and the proceedings may be resumed. The allegations that the applicant has instigated her husband’s murder are thus maintained by the prosecution authorities and her situation continues to be substantially affected.
50. The Court further observes that it follows from the search warrant and seizure order of 11 May 2009 that the applicant was suspected of having instigated the crime of murder and that she had intended to pay off co-suspect H. The order further specified that an arrest warrant had been issued against her that contained further details regarding the investigated crime and the outcome of the investigations conducted so far. The applicant was, however, not provided with a copy of the arrest warrant and, as a consequence, did not dispose of any additional information as regards the commission of the investigated crime or its victim. The Court nevertheless considers that, having regard to the circumstances in which the search was conducted and in particular taking into account the applicant’s preceding examinations by the police, there could have been no doubt on her part, that she was suspected of having incited the co-suspect H. to kill her husband.
51. The Court is therefore satisfied that at this stage of the investigation proceedings the applicant was informed in sufficient detail of the nature and cause of the accusations against her in compliance with Article 6 § 3 (a) of the Convention.
52. 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 evades the investigations and cannot be questioned by the prosecution authorities.
53. 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.
54. 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 remains at large and has not yet been deprived of his liberty. In this context the Court, contrary to the applicant’s submissions, finds it immaterial whether a suspect has initially fled the country with a view to escaping prosecution or evades his arrest and trial by remaining abroad after having obtained knowledge that criminal proceedings have been instituted against him. 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 (compare Gül v. Germany (dec.), no. 57249/09, 4 January 2012).
55. 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. When examining the repeated requests for disclosure of the investigation files the domestic authorities have pointed out that in view of the applicant’s absconding and refusal to face the proceedings against her in Germany, access to the files might put the ongoing preliminary investigation at risk. In his submissions dated 14 July 2009 the Cologne Chief Public further specified that disclosure of the arrest warrant’s content or access to the investigation files would jeopardise the purpose of the detention order since the gravity and extent of the charges against the applicant might have an impact on the latter’s decision whether to face the investigations or not.
56. The Court also notes in this context that on 9 June 2009 the applicant was provided with copies of the records of her police interrogations conducted within the scope of the investigations. In addition, the decision of the Koblenz Court of Appeal dated 8 November 2011 quoted parts of the arrest warrant issued against the applicant. In the Court’s view the consecutive disclosure of documents and information in relation to the crime being investigated indicates that the public prosecution authorities took into account the interests of the defence and the suspect in their respective decisions and weighed them against the necessity to keep the file in the preliminary investigations secret (see Massmann v. Germany (dec.), no. 11603/06, 4 May 2010). Moreover, it is to be assumed that on the occasion of the trial against the applicant’s separately prosecuted co-suspects in 2009, counsel for the defence had an opportunity to obtain further information on the conduct and outcome of the investigations into the murder and the applicant’s supposed participation in the crime.
57. The facts of the case, as submitted by the applicant, also demonstrate that she has been represented by counsel throughout the proceedings and had the opportunity to present her own case when challenging the decisions of the prosecution authorities and domestic courts in connection with the proceedings pending against her.
58. 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 §§ 1 and 3 (a), (b) and (c) of the Convention.
59. 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.
60. In this context the Court would also point out that, contrary to the applicant’s submissions, there is no indication that the measures ordered by the prosecution authorities or the decisions of the domestic courts within the scope of the preliminary proceedings instituted against the applicant implied a premature expression of her guilt or prejudged the assessment of the facts by the competent judicial authority on the occasion of a possible future trial in breach of the presumption of innocence enshrined in Article 6 § 2 of the Convention.
61. The Court finally observes that in cases such as the present, German law does not allow a criminal trial to be conducted in the suspect’s absence and that it is therefore imputable to the applicant, who evaded the investigations by remaining abroad in her native Serbia, that criminal proceedings could not be pursued. In view of these circumstances the prosecution authorities’ decision to provisionally discontinue the preliminary proceedings during the time of the applicant’s absence cannot be considered unreasonable (see H.M v. Germany (dec.) no. 62512/00, 9 June 2005).
62. Having regard to the above considerations, the Court holds that this part of the applicant’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. The remainder of the applicant’s complaints
63. The Court has examined the remainder of the applicant’s complaints under Articles 5 §§ 1 (c), 3 and 4; 8 and 13 of the Convention as well as under Article 2 § 2 of Protocol 4 to the Convention as submitted by her. However, having regard to all material in its possession, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
64. It follows that this part of the applicant’s complaints must equally be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Stephen PhillipsGanna Yudkivska
Deputy RegistrarPresident
Full & Egal Universal Law Academy