CASE OF MOOREN v. GERMANY
Preliminary objections dismissed (non-exhaustion of domestic remedies);No violation of Art. 5-1;Violations of Art. 5-4;Non-pecuniary damage - award
Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Elisabet Fura;Françoise Tulkens;George Nicolaou;Ineta Ziemele;Isabelle Berro-Lefèvre;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Margarita Tsatsa-Nikolovska;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
9. The applicant was born in 1963. At the date the application was lodged, he was living in Mönchengladbach. 10. On 25 July 2002 the applicant was arrested. 11. On the same day the Mönchengladbach District Court ordered his detention on remand after hearing representations from him. The applicant was assisted from this point on by counsel. In a detention order running to some one and a half pages, 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, an offence punishable under various provisions (which were specified in detail) of the Tax Code, the Turnover Tax Code, the Income Tax Code and the Regulations on Trade Taxes. He had been working as a self-employed commercial agent for fifteen different firms in Germany (whose names were listed in detail in the order) since 1994. He had also been running a telephone service since 2000; in 2001 a company, TMA Aachen, had paid him commission amounting to 124,926.22 Deutschmarks (DEM). The court found on the basis of the documents before it that there were grounds for suspecting the applicant of having evaded turnover taxes of 57,374 euros (EUR), income taxes of EUR 133,279 and trade taxes of EUR 20,266. 12. Noting that the applicant, who had availed himself of the right to remain silent, was strongly suspected of tax evasion on the basis of business records that had been seized when his home was searched, the District Court decided that he had to be placed in pre-trial detention because of the danger of collusion (Verdunkelungsgefahr – see Article 112 § 2 no. 3 of the Code of Criminal Procedure, cited in paragraph 45 below). It also noted that the documents seized were incomplete, so that there was a risk that the applicant, if released, might destroy the missing documents or conceal further business transactions and accounts. 13. On 7 August 2002 the applicant, represented by counsel, lodged an application for review of his detention order (Haftprüfung) with the Mönchengladbach District Court. His counsel also requested access to the case file, which he argued he had a right to inspect in order to apprise himself of all the facts and evidence on which the detention order and, in particular, the strong suspicion that an offence had been committed were based. He also pointed out that domestic law prohibited the District Court from considering facts and evidence to which defence counsel had been refused access pursuant to Article 147 § 2 of the Code of Criminal Procedure (see paragraph 52 below). 14. On 12 August 2002 the Mönchengladbach Public Prosecutor's Office informed the applicant's counsel that he was being refused access to the case file pursuant to Article 147 § 2 of the Code of Criminal Procedure as it 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 at issue. The applicant's counsel did not take up that offer. 15. 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 file. 16. By an order of the same day, the Mönchengladbach District Court, which had before it the case file of the proceedings, upheld the detention order. 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 consistently sought. 17. Following the applicant's appeal, which was lodged on 16 August 2002 and was followed up by detailed reasons on 19 August 2002, the Mönchengladbach 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 file, it stated that he should be informed orally about the content of the file in the first instance. 18. 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 file would not be sufficient. 19. On 9 September 2002, after hearing representations from the Public Prosecutor's Office and considering the case file, 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 Article 112 § 2 no. 2 of the Code of Criminal Procedure (see paragraph 45 below), as the applicant had connections in foreign countries and faced a heavy sentence. 20. 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 file orally, the Regional Court found that it was impossible to assess whether the information given in this manner would be sufficient. At that stage of the proceedings, however, counsel for the defence could not claim to be entitled to unlimited access to the complete case file. 21. The Regional Court's decision was served on the applicant's counsel on 16 September 2002. 22. 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. 23. On 17 September 2002 the Mönchengladbach Regional Court decided, without giving further reasons, not to vary its decision of 9 September 2002. On 18 September 2002 the Mönchengladbach Public Prosecutor's Office, which was in possession of the case file, drafted a report which was sent to the Düsseldorf Chief Public Prosecutor's Office with the file the next day. 24. 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 file as it was sufficient for the applicant to be notified of the Düsseldorf Tax Fraud Office's overview of the amount of his income and amount of the taxes evaded in the years in question. The submissions and the case file reached the Düsseldorf Court of Appeal on 2 October 2002. 25. On 2 October 2002 the applicant sent further observations to the Düsseldorf Court of Appeal. 26. 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 in question 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. 27. 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. 28. The Court of Appeal, which had the investigation file before it, found that the detention order issued by the District Court on 25 July 2002 did not comply with the statutory requirements and that 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) therefore had to be quashed. It noted that Article 114 § 2 no. 4 of the Code of Criminal Procedure (see paragraph 46 below) required the facts that established strong suspicion that the accused had committed an offence and that formed the basis for his detention to be set out in the detention order. Moreover, 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. The facts and evidence had to be set out in greater detail in the detention order in cases in which defence counsel had been denied access to the case file under Article 147 § 2 of the Code of Criminal Procedure. 29. The Court of Appeal noted, however, that in its decisions on the applicant's detention the District Court had confined itself to noting that the applicant was strongly suspected of tax evasion “on the basis of the business records seized when his home was searched” when 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 file under Article 147 § 2 of the Code of Criminal Procedure, these defects amounted to a denial of the right of the accused to be heard. 30. The Court of Appeal declined to take its own decision on the applicant's detention under Article 309 § 2 of the Code of Criminal Procedure (see paragraph 50 below) or to quash the detention order of 25 July 2002. Referring to the civil courts' case-law on that issue (namely, two decisions of the Karlsruhe Court of Appeal, no. 3 Ws 196/00 and no. 3 Ws 252/85, and to a decision of the Berlin Court of Appeal, no. 5 Ws 344/93 – see paragraph 48 below) it considered that the District Court's detention order was defective in law (rechtsfehlerhaft), but not void (unwirksam). The defect could be remedied in the course of the judicial review proceedings (see Hamburg Court of Appeal, no. 2 Ws 124/92, and Berlin Court of Appeal, no. 5 Ws 344/93 – paragraph 48 below). It stated that it would only quash a detention order if it was obvious that there was either no strong suspicion that the accused had committed an offence or that there were no reasons for the arrest, but that that was not the position in the applicant's case. It was for the District Court to inform the accused of the grounds on which he was suspected of having committed an offence and to hear representations from him on that issue (see also Berlin Court of Appeal, no. 5 Ws 344/93, cited at paragraph 51 below). Should the Public Prosecutor's Office persist, in the interest of its investigations, in not informing the accused of the reasons for his detention, the detention order would have to be quashed. 31. As a consequence, the applicant remained in custody. 32. On 17 October 2002 the Mönchengladbach Public Prosecutor's Office requested the District Court to issue a fresh, amended detention order against the applicant. 33. 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 application for judicial review of the detention order. The applicant's counsel was given copies of four pages of the voluminous case file containing the overview by the Düsseldorf Tax Fraud Office of the amount of the applicant's income and of the taxes he was alleged to have evaded 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 file before the hearing. 34. The Mönchengladbach District Court then issued a fresh order, running to four pages, for the applicant's detention. 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 for six different firms and as marketing director of the TMA Aachen company and the amounts of tax payable in each of the years in question, 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 wage slips and commission statements that had been issued by the firms. 35. The District Court further found that there was a risk of the applicant's absconding (a ground for detention under Article 112 § 2 no. 2 of the Code of Criminal Procedure) as he faced a lengthy prison sentence which could possibly no longer be suspended on probation, had not notified the authorities of his place of residence for a number of years and had claimed that he was living in the Netherlands. 36. By an order of the same day, the Mönchengladbach District Court decided to suspend the execution of the detention order 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. However, the district court did not order the applicant's immediate release as the Public Prosecutor's Office had immediately lodged an appeal. 37. 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 EUR 40,000 as security. 38. Having deposited the security, the applicant was released from prison on 7 November 2002. 39. 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 file. 40. By a letter dated 18 November 2002, the Mönchengladbach Public Prosecutor's Office granted the applicant's counsel access to the case file. It stated that it had intended to send the file to him at an earlier date, but that this had not been possible as the file had been at the Regional Court and had only recently been returned to the Public Prosecutor's Office. The applicant's counsel received the file for inspection on 20 November 2002. The applicant withdrew his further appeal on 10 December 2002. 41. 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 file pursuant to Article 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 53 below), and his right to liberty under Article 104 § 3 of the Basic Law (see paragraph 54 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 v. Germany and Schöps v. Germany. The Court of Appeal's refusal to quash the detention order 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. 42. 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. 43. 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. 44. 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. It 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. 45. 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). 46. According to Article 114 §§ 1 and 2 of the Code of Criminal Procedure, detention on remand is ordered by a judge in a written detention order. The detention order identifies the accused, 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). 47. Under Article 117 § 1 of the Code of Criminal Procedure, remand prisoners may at any time seek judicial review (Haftprüfung) of a decision to issue a detention order or ask for the order to be suspended. They may lodge an appeal under Article 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 (Article 310 § 1 of the Code of Criminal Procedure). Decisions on a person's pre-trial detention have to be taken speedily (compare, among many others, Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, Strafverteidiger (StV) 1994, p. 319). As a rule, pre-trial detention must not continue for more than six months (see Article 121 § 1 of the Code of Criminal Procedure; compare Federal Constitutional Court, no. 2 BvR 558/73, decision of 12 December 1973). 48. The consequences of a court's finding in the course of judicial review proceedings that a detention order is flawed will depend on the nature of the defect found. Certain formal defects, in particular a failure to set out in sufficient detail in the order the facts establishing the grounds for strong suspicion that an offence has been committed and for the arrest, as required by Article 114 § 2 no. 4 of the Code of Criminal Procedure, will make the order defective in law (rechtsfehlerhaft), but not void (unwirksam / nichtig) (see, inter alia, Karlsruhe Court of Appeal, no. 3 Ws 252/85, decision of 28 November 1985, Neue Zeitschrift für Strafrecht (NStZ) 1986, pp. 134-35; and Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, StV 1994, p. 318). Such defects may therefore be remedied by the appeal courts in the course of the judicial review proceedings by either quashing the defective order or replacing it with a fresh, duly reasoned order (compare, inter alia, Karlsruhe Court of Appeal, no. 3 Ws 252/85, decision of 28 November 1985, NStZ 1986, pp. 134-35 with further references; Hamburg Court of Appeal, no. 2 Ws 124/92, decision of 23 March 1992, Monatsschrift für Deutsches Recht (MDR) 1992, p. 694; Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, StV 1994, pp. 318-319; and Karlsruhe Court of Appeal, no. 3 Ws 196/00, decision of 26 September 2000, StV 2001, p. 118). A defective detention order thus remains a valid basis for detention until the defect is remedied. On the contrary, detention on the basis of a detention order which is void owing to a serious and obvious defect is unlawful (see paragraph 49). 49. The Federal Court of Justice gave the following reasons for the distinction between void and defective court decisions: “Only in rare, exceptional cases can a court decision be considered void in its entirety, with the consequence that it is legally irrelevant (see ...). This is a consequence of the requirements of legal certainty and its corollary, the authority of court decisions, as well as of the overall structure of criminal proceedings with its system of legal remedies designed to correct defective decisions. Considering a court decision ... as legally irrelevant means that anyone may claim that it is null and void at any stage of the proceedings, even after it has become final... In the case of decisions which can be challenged by an appeal, the statutory rules – formalities and time-limits – become inoperative if the decisions are deemed legally irrelevant. Such consequences, which run counter to the overall order of the law of criminal procedure, may be drawn from the defectiveness of a court decision only, if at all, where it would be unthinkable for the legal community to recognise (at least provisionally) its validity. This will occur if the extent and gravity of the defect are such that the decision blatantly contradicts the spirit of the Code of Criminal Procedure and key principles of our legal order (see ...). From the perspective of legal certainty, the assumption that a decision is null and void presupposes, in addition, that the serious defect is obvious” (see Federal Court of Justice, no. 1 BJs 80/78, decision of 16 October 1980, Neue Juristische Wochenschrift (NJW) 1981, p. 133 with further references; compare also Federal Court of Justice, no. 1 StR 874/83, decision of 24 January 1984, NStZ 1984, p. 279) 50. As regards the consequences of a finding by a court of appeal, on a further appeal by the detainee, that a detention order is flawed, Article 309 § 2 of the Code of Criminal Procedure lays down that if the appeal court considers the appeal against the (continued) detention well-founded, it must take the necessary decision in the case at the same time. The court of appeal thus decides the merits of the case in the lower courts' stead (see, for instance, Düsseldorf Court of Appeal, no. 4 Ws 222/02, decision of 18 June 2002, NJW 2002, p. 2964). 51. However, the courts of appeal have developed exceptions to the rule laid down in Article 309 § 2 of the Code of Criminal Procedure. In certain limited circumstances, a case may exceptionally be remitted to the court of first instance if there has been a procedural defect which the court of appeal cannot properly remedy itself (see Brandenburg Court of Appeal, no. 2 Ws 50/96, decision of 17 April 1996, NStZ 1996, pp. 406-07; and Düsseldorf Court of Appeal, no. 4 Ws 222/02, decision of 18 June 2002, NJW 2002, pp. 2964-65). In particular, a court of appeal may remit the case to the district court instead of taking its own decision on the merits if a detention order does not comply with the duty to set out the grounds for suspecting the accused of an offence and if, in addition, the prosecution refused access to the case file. The explanation for this is that, in such cases, the defective reasoning effectively amounts to a breach of the duty to hear representations from the defendant. It was the district court which had jurisdiction to inform the accused for the first time of the grounds for suspecting him of an offence and to hear representations from him (see Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, StV 1994, pp. 318-19). The duty to expedite proceedings in which the suspect is in detention does not warrant a different conclusion as only a remittal of the case will enable him to avail himself effectively of his right to be heard (see Berlin Court of Appeal, no. 5 Ws 344/93, decision of 5 October 1993, StV 1994, p. 319). 52. Article 147 § 1 of the Code of Criminal Procedure provides that defence counsel is entitled to consult the file which has 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 file or to the exhibits to be refused until the preliminary investigation has ended if the investigation 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 (Article 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 file or not; thereafter it is for the president of the trial court (Article 147 § 5). An accused who is in detention is entitled by virtue of Article 161a § 3 of the Code of Criminal Procedure to seek judicial review of a decision of the Public Prosecutor's Office to refuse access to the file. Pursuant to that provision, the regional court for the district where the Public Prosecutor's Office is located has jurisdiction to hear applications for judicial review; its decisions are not subject to appeal. 53. 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). 54. 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 detention order setting out the grounds therefor or order the detainee's release.