CASE OF EROL v. GERMANY
No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)
Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev
6. The applicant was born in 1974 and lives in Aachen. 7. On 20 April 2010 the premises in which the applicant ran a café were searched, based on a search warrant of 2 March 2010 issued by the Aachen District Court. The applicant was found in a back room of the café, weighing and packaging some 400 grams of cocaine, with a sum of 2,325 euros (EUR) in the pockets of his trousers. He was arrested. 8. The following day, the Aachen District Court issued a warrant for the arrest of the applicant on the ground that he was strongly suspected (dringend verdächtig) of commercial trafficking of a substantial amount of drugs and that there was a risk of his absconding. It considered that the applicant could face a considerable prison sentence for the offences in question, that he did not have strong ties to Germany, that he was unemployed and living on social security, and that he could easily abscond to Turkey. 9. At a detention review hearing on 5 May 2010, the applicant’s counsel applied for the applicant’s release on bail, stating that the applicant’s family were able and willing to furnish the amount of bail to be determined by the court. The following day, the applicant’s counsel withdrew the application after the court indicated that bail would not be granted. 10. On 6 July 2010 the Public Prosecutor’s Office lodged a bill of indictment against the applicant, charging him with three counts of commercial trafficking of a substantial amount of drugs. 11. On 6 August 2010 the Aachen District Court decided to open the trial against the applicant. 12. On 29 September 2010 the District Court convicted the applicant on one of three counts of commercial trafficking in a substantial amount of drugs and acquitted him on the other two counts. It sentenced him to two years and six months’ imprisonment and ordered the continuation of his detention. 13. On 30 September 2010 both the applicant and the Public Prosecutor lodged appeals against the District Court’s judgment. 14. That same day, the applicant lodged an appeal against the decision ordering his continued detention and asked for the detention order to be set aside or its execution to be stayed. He argued that there was no incentive for him to abscond. The strength of his ties to Germany rendered his absconding to Turkey unlikely. He had lived in Germany for twenty years, had been married for the past thirteen years, and had two children, aged eight and one. His parents and his brother also lived in Germany. His only tie to Turkey, by contrast, was his parents’ holiday home. 15. On 1 October 2010 the Aachen District Court decided not to grant the applicant’s appeal against the continued detention order and to refer the matter to the Aachen Regional Court. It considered that it was possible that the applicant would be sentenced to a significant prison sentence on appeal. There was, hence, an incentive for him to abscond which was not counterbalanced by his existing social ties to Germany. In that regard, it noted that the applicant and his entire family had lived on social security since 2001, that his command of the German language was insufficient and that he had no prospects of employment. Considering that his wife was also a Turkish national, that his children were of a young age and that his parents owned a holiday home in Turkey, there was a risk that the applicant would abscond to Turkey with his family. This risk could not be adequately remedied by reporting requirements or payment of security. 16. On 7 October 2010 the Aachen Regional Court dismissed the applicant’s appeal. It limited the basis of the detention order to the count on which he had been convicted and annulled it for the two counts on which he had been acquitted by the District Court. Yet, referring to the reasoning of the District Court and underlining that the applicant had no legal employment whereas he had family ties to Turkey, it considered that there continued to be a risk of the applicant’s absconding. 17. On 26 October 2010 the applicant lodged a further appeal against that decision. After essentially reiterating his earlier submission as to why there was no risk of his absconding, he stated that such risk could, in any event, be remedied by imposing a less severe measure. In that regard, he proposed that his family furnish security of EUR 10,000. 18. After the Regional Court decided not to grant the applicant’s further appeal and to refer the matter to the Cologne Court of Appeal, that court informed the applicant’s counsel, in a letter dated 22 November 2010, that it was considering staying the execution of the detention order. It asked the applicant to clarify the offer made and requested that the necessary means be given to him by his family in a manner that allowed him to dispose freely of those means and to furnish the security himself. The lawful origin of those means had to be credibly demonstrated. 19. The following day, the applicant’s counsel informed the Court of Appeal that the applicant’s family was able and willing to furnish security of EUR 10,000 to the court and to demonstrate credibly the lawful origin of those means. The family was, however, unwilling to put the money at the applicant’s disposal as they were unwilling to run the risk of having the repayment claim attached for payment against future claims the authorities might have against the applicant. He added that, if the applicant had to assume that the security would be forfeited in any event, that is to say, even if he did not abscond, because the repayment claim would be attached for payment against other claims, the security could not effectively remedy a risk of his absconding. 20. On 3 December 2010 the Cologne Court of Appeal dismissed the applicant’s further appeal. It endorsed the assessments of the District Court and the Regional Court as to the risk of the applicant’s absconding and noted that the sentence the applicant risked incurring was not limited to two years and six months’ imprisonment, for the Public Prosecutor had appealed against the District Court’s judgment, seeking the applicant’s conviction on the two counts on which he had been acquitted. It stated that it would nonetheless consider staying the execution of the detention order if security were furnished. As long as the applicant’s family was not willing to put the necessary means at his own disposal it was, however, not ready to do so, arguing that this unwillingness indicated that his family lacked confidence in him and concluding that the family ties appeared not to be strong enough to prevent him from risking forfeiture of the security by absconding. The Court of Appeal furthermore found that there was a risk that the applicant would commit more drug-related offences if he were released from detention and also based the detention order, by way of subsidiarity, on a risk of reoffending. The decision was served on the applicant on 9 December 2010. 21. On 3 January 2011 the District Court’s judgment of 29 September 2010 became final, following the Regional Court’s decision to discontinue the proceedings in relation to one of the charges and the withdrawal of appeals by both the applicant and the Public Prosecutor. 22. That same day, the Aachen District Court stayed the execution of the detention order against the applicant on a number of conditions, including that either he or another person furnish security of EUR 5,000. Upon the furnishing of that amount by another person that same day, the applicant was released from detention. 23. On 14 April 2011 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint against the Court of Appeal’s decision not to stay the execution of the detention order against him, lodged on 10 January 2011, for adjudication, without providing reasons (file no. 2 BvR 155/11).