CASE OF MOOREN v. GERMANY
No violation of Art. 5-1;Violations of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
Peer Lorenzen
5. The applicant was born in 1963. At the date the application was lodged, he was living in Mönchengladbach. 6. On 25 July 2002 the applicant was arrested. 7. On the same day the Mönchengladbach District Court, after hearing representations from the applicant, ordered his detention on remand. The applicant was assisted from this point on by counsel. The District Court found that there was a strong suspicion that the applicant had evaded taxes on some twenty occasions between 1996 and June 2002. He had been working as a self-employed commercial agent for several firms in Germany since 1994 and been running a telephone service since 2000. In 2001 the company TMA Aachen had paid him commission amounting to 124,926.22 Deutschmarks (DEM). The court found that, according to the documents before it at that date, the applicant was suspected of having evaded turnover taxes of 57,374 euros (EUR), income taxes of EUR 133,279 and trade taxes of EUR 20,266. 8. The District Court noted that the applicant, who had availed himself of the right to remain silent, was strongly suspected of tax evasion on the basis of the business records that had been seized when his home was searched. He had to be placed in pre-trial detention because of a danger of collusion (Verdunkelungsgefahr) (see section 112 § 2 no. 3 of the Code of Criminal Procedure – paragraph 41 below). The documents seized were incomplete. There was therefore a risk that the applicant, if released, might destroy the missing documents or conceal further business transactions and accounts. 9. On 7 August 2002 the applicant, represented by counsel, lodged a motion for review of his detention order (Haftprüfung) with the Mönchengladbach District Court. His counsel also requested access to the case files. He argued that he had a right to inspect the files in order to examine all the facts and evidence on which the arrest warrant and, in particular, the strong suspicion that an offence had been committed were based and that domestic law prohibited the court from considering facts and evidence to which defence counsel had been refused access pursuant to section 147 § 2 of the Code of Criminal Procedure (see paragraph 44 below). 10. On 12 August 2002 the Mönchengladbach Public Prosecutor’s Office informed the applicant’s counsel that he was being refused access to the case files pursuant to section 147 § 2 of the Code of Criminal Procedure as access would jeopardise the purpose of the investigation. It added, however, that the public prosecutor in charge of the case was prepared to inform counsel orally about the facts and evidence. The applicant’s counsel did not take up that offer. 11. On 16 August 2002 the Mönchengladbach District Court heard representations from the applicant and his defence counsel. The applicant argued that there was no risk of collusion or of his absconding. Should the court nevertheless consider that he might abscond if released he was ready to comply with any conditions imposed by the court, such as handing over his identity papers. The applicant’s counsel complained that he had still not had access to the case files. 12. By an order of the same day, the Mönchengladbach District Court, which had before it the case files of the proceedings, upheld the arrest warrant. It found that there was still a risk that, if released, the applicant would tamper with factual evidence or interfere with witnesses. The applicant had so far tried to conceal his true place of residence and other personal details from the authorities and had acted with the intent to mislead which, 13. Following the applicant’s appeal, which was lodged on 16 August 2002 and was followed up by detailed reasons on 19 August 2002, the Regional Court informed the applicant in a letter dated 27 August 2002 that it considered that the risk of his absconding could serve as a ground for his continued detention. As to his counsel’s request for access to the case files, it stated that he should be informed orally about the content of the files in the first instance. 14. In a letter dated 2 September 2002, the applicant contested that view. He claimed, in particular, that in his case mere oral information about the content of the case files would not be sufficient. 15. On 9 September 2002, after hearing representations from the Public Prosecutor’s Office and considering the case files, the Mönchengladbach Regional Court dismissed the applicant’s appeal against the District Court’s decision dated 16 August 2002. It found that there was a strong suspicion that the applicant had evaded income, turnover and trade taxes. Furthermore, there was a danger of his absconding within the meaning of section 112 § 2 no. 2 of the Code of Criminal Procedure (see paragraph 41 below), as the applicant had connections in foreign countries and faced a heavy sentence. 16. In view of defence counsel’s refusal to accept the offer made by the Public Prosecutor’s Office to explain the content of the case files orally, the Regional Court found that it was impossible to assess whether the information given in this manner would be sufficient. At the present stage of the proceedings, counsel for the defence could not, however, claim to be entitled to unlimited access to the complete case files. 17. The Regional Court’s decision was served on the applicant’s counsel on 16 September 2002. 18. On 16 September 2002 the applicant, represented by counsel, lodged a further appeal against the detention order. He again claimed that he had a constitutional right to be given access to the facts and evidence on which the detention order was based. 19. On 17 September 2002 the Mönchengladbach Regional Court decided, without giving further reasons, not to amend its decision of 9 September 2002. On 18 September 2002 the Mönchengladbach Public Prosecutor’s Office, which had the case files, drafted a report which was sent to the Düsseldorf Chief Public Prosecutor’s Office with the files the next day. 20. On 26 September 2002 the Chief Public Prosecutor’s Office, in its submissions to the Düsseldorf Court of Appeal, stated that it was not prepared to give the applicant access to the case files. It argued that it was sufficient for the applicant to be notified of the overview of the Düsseldorf Tax Fraud Office on the amount of his income and amount of the taxes evaded in the years in question. The submissions and the case files reached the Düsseldorf Court of Appeal on 2 October 2002. 21. On 2 October 2002 the applicant sent further observations to the Düsseldorf Court of Appeal. 22. On 9 October 2002 the applicant, who had been sent the submissions of the Chief Public Prosecutor’s Office on 7 October 2002, contested its arguments. He stated that the overview was merely a conclusion of the Tax Fraud Office the merits of which he could not examine without having access to the documents and records on which it was based. 23. On 14 October 2002 the Düsseldorf Court of Appeal, on the applicant’s further appeal, quashed the District Court’s decision dated 16 August 2002 and the Regional Court’s decision dated 9 September 2002 upholding the applicant’s detention, and remitted the case to the District Court. 24. The Court of Appeal, which had the investigation files before it, found that the detention order issued by the District Court on 25 July 2002 did not comply with the legal requirements. Therefore, the decisions taken in the judicial review proceedings by the District Court on 16 August 2002 and by the Regional Court on 9 September 2002 (but not the detention order of 25 July 2002 itself) had to be quashed. Pursuant to section 114 § 2 of the Code of Criminal Procedure (see paragraph 42 below), the facts leading to a strong suspicion that the accused had committed a particular offence and the reasons for detention had to be set out in the detention order. In order to comply with the constitutional rights to be heard and to a fair trial, the facts and evidence on which the suspicion and the reasons for the defendant’s detention on remand were based had to be described in sufficient detail to enable the accused to comment on them and defend himself effectively. 25. The Court of Appeal noted that, in its decisions on the applicant’s detention, the District Court had, however, merely stated that the applicant was strongly suspected of tax evasion “on the basis of the business records seized when his home was searched”. It should, at minimum, have summarised the results of the evaluation of those records in order to enable the accused to oppose the decision on detention by making his own submissions or presenting evidence. This defect had not been remedied in the course of the subsequent decisions on the applicant’s continued detention. As counsel for the defence had also been refused access to the case files under section 147 § 2 of the Code of Criminal Procedure, these defects amounted to a denial of the right of the accused to be heard. 26. The Court of Appeal declined to take its own decision on the applicant’s detention itself pursuant to section 309 § 2 of the Code of Criminal Procedure (see paragraph 43 below) or to quash the detention order of 25 July 2002, which it considered to be defective in law (rechtsfehlerhaft), but not void (unwirksam). It stated that it would only quash the detention order if it was obvious that there was no strong suspicion that the accused had committed an offence and that there were no reasons for the arrest. It was for the District Court to inform the accused of the reasons on which the suspicion of his having committed an offence were based and to hear representations from him on that issue. Should the Public Prosecutor’s Office persist, in the interest of its investigations, in not informing the accused of the reasons, the detention order would have to be quashed. 27. As a consequence, the applicant remained in custody. 28. On 17 October 2002 the Mönchengladbach Public Prosecutor’s Office requested the District Court to issue a fresh amended detention order against the applicant. 29. On 29 October 2002 the Mönchengladbach District Court again heard representations from the applicant, his defence counsel, the Public Prosecutor’s Office and an official in charge of investigations at the Düsseldorf Tax Fraud Office on the applicant’s motion for judicial review of the detention order. The applicant’s counsel was given copies of four pages of the voluminous case files containing an overview by the Düsseldorf Tax Fraud Office of the amounts of income and taxes evaded by the applicant between 1991 and 2002. Relying on the applicant’s rights to be heard and to a fair trial, the applicant’s counsel complained that he had not been granted access to the case files before the hearing. 30. The Mönchengladbach District Court then issued a fresh detention order against the applicant. It stated that there was a strong suspicion that the applicant had evaded taxes on some twenty occasions between 1991 and June 2002. Listing in detail the applicant’s income from his various activities as a self-employed commercial agent and the amounts of tax payable, the District Court found that there was a strong suspicion that he had evaded turnover taxes of DEM 125,231.79, income taxes of DEM 260,025, solidarity taxes of DEM 15,240.11 and trade taxes of DEM 36,930. It based its suspicion on documents whose content was explained by a tax official present at the hearing, witness statements of the owners of the firms the applicant was working for, the applicant’s contracts of employment and the wage slips and commission statements that had been issued by the firms. 31. The District Court further found that there was a risk of the applicant’s absconding, which was a ground for detention under section 112 § 2 no. 2 of the Code of Criminal Procedure. He faced a lengthy prison sentence which could no longer be suspended on probation, had not notified the authorities of his place of residence for several years and had claimed that he was living in the Netherlands. 32. By an order of the same day, the Mönchengladbach District Court decided to suspend the execution of the arrest warrant on condition that the applicant, who in the meantime had complied with his duty to inform the authorities of his address, informed the court of every change of address, complied with all summonses issued by the court, the Public Prosecutor’s Office and the police, and reported to the police three times a week. It suspended the execution of the order to release the applicant at the request of the Public Prosecutor’s Office, which had immediately lodged an appeal. 33. On 7 November 2002, after hearing representations from the applicant and the Public Prosecutor’s Office, the Mönchengladbach Regional Court dismissed the applicant’s appeal against the detention order. It likewise dismissed the appeal lodged by the Public Prosecutor’s Office against the decision to suspend the execution of the detention order on the additional conditions that the applicant hand over his identity papers to the Public Prosecutor’s Office and deposit DEM 40,000 as security. 34. Having deposited the security, the applicant was released from prison on 7 November 2002. 35. On 8 November 2002 the applicant lodged a further appeal against the Regional Court’s decision, complaining that his counsel had still not been granted access to the case files. 36. By a letter dated 18 November 2002, the Mönchengladbach Public Prosecutor’s Office granted the applicant’s counsel access to the case files. It stated that it had intended to send the files to him at an earlier date. However, this had not been possible as the files had been at the Regional Court and had only recently been returned to the Public Prosecutor’s Office. The applicant’s counsel received the files for inspection on 20 November 2002. The applicant withdrew his further appeal on 10 December 2002. 37. On 23 October 2002 the applicant lodged a complaint with the Federal Constitutional Court against the decision of the Düsseldorf Court of Appeal dated 14 October 2002 and the detention order issued by the Mönchengladbach District Court on 25 July 2002. In his submission, his rights to liberty, to be heard in court and to be informed promptly by a judge of the reasons for his detention on remand as well as his rights to be heard within a reasonable time and to a fair trial as guaranteed by the Basic Law had been violated. He argued in particular that his right to liberty, the deprivation of which was only constitutional if it was in accordance with the law, had been breached by his illegal detention on the basis of a void detention order. The complete refusal to allow his defence counsel access to the case files pursuant to section 147 § 2 of the Code of Criminal Procedure had violated his right to be heard in court as guaranteed by Article 103 § 1 of the Basic Law (see paragraph 45 below) and his right to liberty under Article 104 § 3 of the Basic Law (see paragraph 46 below). The impugned decisions disregarded both the case-law of the Federal Constitutional Court and the Court’s case-law as laid down in its judgments of 13 February 2001 in the cases of Garcia Alva, Lietzow and Schöps v. Germany. The Court of Appeal’s refusal to quash the detention order and to take a decision itself and its decision to remit the case to the District Court instead had also breached his right to a fair hearing within a reasonable time. 38. On 4 and 11 November 2002 the applicant extended his constitutional complaint to include the decisions of the Mönchengladbach District Court dated 29 October 2002 and the decision of the Mönchengladbach Regional Court dated 7 November 2002. 39. On 22 November 2002 the Federal Constitutional Court, without giving further reasons, declined to consider the applicant’s constitutional complaint against the detention orders issued by the Mönchengladbach District Court on 25 July 2002 and 29 October 2002, the decision of the Mönchengladbach Regional Court dated 7 November 2002 and the decision of the Düsseldorf Court of Appeal dated 14 October 2002. 40. On 9 March 2005 the Mönchengladbach District Court convicted the applicant on eight counts of tax evasion and sentenced him to a total of one year and eight months’ imprisonment suspended on probation. The court found that the applicant, who had confessed to the offences, had evaded turnover taxes of DEM 129,795, income taxes of DEM 344,802 and trade taxes of DEM 55,165. 41. Sections 112 et seq. of the Code of Criminal Procedure (Strafprozessordnung) concern detention on remand. Pursuant to section 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 (section 112 § 2 no. 2) or of collusion (section 112 § 2 no. 3). 42. According to section 114 §§ 1 and 2 of the Code of Criminal Procedure, detention on remand is ordered by a judge in a written arrest warrant. The arrest warrant names the accused, the offence of which he is strongly suspected, including the time and place of its commission, and the grounds for the arrest. 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 arrest warrant unless national security would thereby be endangered. 43. Under section 117 § 1 of the Code of Criminal Procedure, remand prisoners may ask at any time for judicial review (Haftprüfung) of the decision to issue an arrest warrant or for the warrant to be suspended. They may lodge an appeal under section 304 of the Code of Criminal Procedure (Haftbeschwerde) against a decision ordering their (continued) detention and a further appeal (weitere Beschwerde) against the Regional Court’s decision on the appeal (section 310 § 1 of the Code of Criminal Procedure). If the appeal court considers the appeal against the (continued) detention to be well-founded, it will take a decision on the merits at the same time (section 309 § 2 of the Code of Criminal Procedure). However, according to the domestic courts’ case-law, a detention order which does not comply with the duty to set out the grounds for suspecting the accused of an offence is not void, but merely defective in law. If, in such a case, the prosecution also refused access to the case file, the defective reasoning amounts to a refusal to hear representations from the defendant. In these circumstances, the court of appeal – by way of an exception to section 309 § 2 of the Code of Criminal Procedure – may remit the case to the district court (see Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, Strafverteidiger (StV) 1994, pp. 318-319; compare also Karlsruhe Court of Appeal, no. 3 Ws 196/00, decision of 26 September 2000, StV 2001, pp. 118-120, to which the Düsseldorf Court of Appeal referred in the present case). 44. Section 147 § 1 of the Code of Criminal Procedure provides that defence counsel is entitled to consult the files which have been or will be presented to the trial court, and to inspect the exhibits. Paragraph 2 of this provision allows access to part or all of the files or to the exhibits to be refused until the preliminary investigation has ended if it might otherwise be at risk. At no stage of the proceedings may defence counsel be refused access to records concerning the examination of the accused, acts in the judicial investigation at which defence counsel was or should have been allowed to be present or expert reports (section 147 § 3 of the said Code). Pending the termination of the preliminary investigation, it is for the Public Prosecutor’s Office to decide whether to grant access to the files or not; thereafter it is for the president of the trial court (section 147 § 5). An accused who is in detention is entitled to seek judicial review of a decision of the Public Prosecutor’s Office to refuse access to the files (ibid.). 45. According to Article 103 § 1 of the Basic Law every person involved in proceedings before a court is entitled to be heard by that court (Anspruch auf rechtliches Gehör). 46. Article 104 § 3 of the Basic Law provides that every person provisionally detained on suspicion of having committed a criminal offence must be brought before a judge no later than the day following his arrest; the judge must inform him of the reasons for the arrest, hear representations from him and give him an opportunity to raise objections. The judge must then, without delay, either issue a written arrest warrant setting out the grounds therefor or order the detainee’s release.