GUL v. GERMANY
Inadmissible
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
The applicant, Mr Dincer Gül, is a Turkish national who was born in 1968. His last known place of residence in Germany was in Garbsen. He was represented before the Court by Mr M.-O. Nordhorn, a lawyer practising in Steyerberg. The facts of the case, as submitted by the applicant, may be summarised as follows. On an unspecified date, the Hannover prosecution authorities started an investigation against the applicant and several co-suspects on suspicion of drug trafficking. On 28 January 2005 the Hannover District Court ordered that the applicant’s parents’ apartment be searched. The Court found that on the basis of information obtained by means of surveillance as well as telephone tapping in the course of preliminary proceedings (Ermittlungsverfahren) instituted against the applicant, there were grounds for suspecting that drugs, implements used for drug trafficking and consumption, as well as cash proceeds from drug deals were being stored in the applicant’s parents’ flat. The search warrant stated that in the course of the investigations a suspicion had arisen that co-suspect (Mitbeschuldigter) K. was storing and trafficking drugs for the applicant’s benefit. According to the information provided in the search warrant, on 25 January 2005, K. had received a telephone call from the Dutch town of Venlo by an unidentified male person who had informed him in Turkish that on 27 January 2005 at eight o’clock in the morning a “friend” would arrive at K.’s domicile. On the occasion of a telephone conversation on 26 January 2005 at around noon, K. informed the applicant that nobody had yet come by. Later that day the applicant informed K. over the phone that the said friend would arrive that evening. At around 6 p.m. K. received a further telephone call by an unidentified person informing him that due to an accident the latter was unable to drop by. Later the same evening the applicant phoned K. to inquire about his “uncle’s” arrival and the “entrusted items” and said he would return the next day. During a further telephone conversation on 27 January 2005, the applicant informed K. that a search had been carried out at the “friends’” place and that their arrival was not to be expected until the following day. The search warrant indicated that on the basis of the aforementioned telephone conversations’ content the court found that there were grounds for suspecting that the delivery of drugs and the applicant’s return were imminent. Furthermore, through surveillance of the applicant it had been established that he had frequently stayed for extended periods in his parents’ apartment and that on 8 January 2005 he had travelled with his father by car to the Dutch town of Venlo, presumably with a view to initiating a drug deal. On 1 February 2005 the Neustadt District Court issued an arrest warrant ordering the applicant’s detention on remand on suspicion of having imported drugs, an offence punishable under the Narcotics Act (Betäubungsmittelgesetz). In the detention order, running to some one and a half pages, the District Court found that there was a strong suspicion that the applicant - acting jointly with co-suspects B., D., and K. - had coordinated the importation and delivery of 4,322 grams of marijuana by B. and D. to K.’s home address by means of several telephone conversations with K. The strong suspicion of the applicant having committed the offence resulted from the seizure of the drugs on the occasion of the search of his parents’ apartment, the witness statements of three police officers who had been involved in the search as well as from the information obtained in the course of police surveillance and the preliminary proceedings. The court further found that there was a risk of the applicant’s absconding in view of an expected prison sentence of at least two years. Since considerable amounts of money had been seized from the co-suspects, it had to be assumed that the criminal gang disposed of sufficient financial means to enable the applicant to abscond. Furthermore, the latter maintained good connections abroad, in particular in Turkey, where he was presumably staying at present. By written submissions dated 17 February 2005 the applicant’s counsel informed the Hannover Public Prosecutor’s office that he had been mandated by the applicant and requested to be granted access to the file in the preliminary proceedings instituted against the applicant. He reiterated his request by letter of 17 March 2005. On 24 March 2005 the Hannover Public Prosecutor’s Office informed counsel that for the time being his request to inspect the files had to be refused pursuant to Article 147 § 2 of the Code of Criminal Procedure (Strafprozessordnung - see “Relevant domestic law” below) on the ground that the preliminary investigations were ongoing and disclosure of the files might jeopardise the purpose of the investigations. By written submissions dated 12 April 2005 the applicant’s counsel applied for a court decision pursuant to section 23 of the Introductory Act to the Courts Act (Einführungsgesetz zum Gerichtsverfassungsgesetz, EGGVG) as to whether access to the files should be granted. He claimed that for the time being he had only obtained knowledge of the search warrant’s content but that his inquiry with the Public Prosecutor’s Office as to whether a detention order had been issued against the applicant had been to no avail. He contended that where an arrest warrant was issued, the suspect would at least have to be granted the right to examine the part of the file providing information as to the reasons for his detention in order to be able to mount an effective defence. The application was dismissed by the Celle Court of Appeal as inadmissible by a decision of 4 May 2005. The Court of Appeal held that according to Article 147 § 5 of the Code of Criminal Procedure, pending the termination of the preliminary investigation, it was for the Public Prosecutor’s Office to decide whether to grant access to the files or not and that therefore a disciplinary complaint (Dienstaufsichtsbeschwerde) against the Public Prosecutor’s Office would be the only appropriate remedy in the case at hand. Relying in particular on a statement obtained from the Chief Public Prosecutor (Generalstaatsanwalt) on 29 April 2005, the Court of Appeal further found that the charges brought against the applicant were clearly set out in the search warrant dated 28 January 2005 and the applicant himself had confirmed that he was aware of the search warrant’s content. There existed thus no particular circumstances that would require an exceptional quashing of the Prosecutor’s decision to refuse access to the file. By a letter dated 1 February 2006 the Hannover Public Prosecutor’s Office informed the applicant that access to the file was still restricted in accordance with Article 147 § 2 of the Code of Criminal Procedure and that such restriction would remain valid as long as the applicant was on the run. A further request by counsel to inspect the files dated 24 July 2007 was rejected by the Hannover Public Prosecutor on 27 July 2007 with similar reasoning. On 22 January 2008 the applicant lodged a disciplinary complaint with the Hannover Public Prosecutor’s Office stating that the only information he had received so far with respect to the investigations was a copy of the search warrant of 28 January 2005 as well as the detention order of 1 February 2005. While reiterating the grounds for his request set out in his written submissions to the Celle Court of Appeal of 12 April 2005, he argued in addition that there was no longer an indication that the purpose of the investigations would be jeopardised. This was in particular true in view of the fact that since the Court of Appeal’s decision of 4 May 2005 more than two years had passed, the proceedings against the applicant’s cosuspects had meanwhile been terminated and that the applicant had been abroad for a considerable time, which excluded any danger of collusion (Verdunklungsgefahr) on his part. The complaint was dismissed by the Celle Chief Public Prosecutor’s Office (Generalstaatsanwaltschaft) by a decision of 4 February 2008 holding in particular that according to counsel’s own submissions he had at his disposal a copy of the Neustadt District Court’s detention order of 1 February 2005 and that the files revealed that he had discussed with the competent Public Prosecutor on several occasions what impact a possible pleading to the charge (EinlassungTurkey. There were thus still grounds to believe that giving him access to the file might put the preliminary investigations, which had not yet been terminated, at risk. On 17 April 2008 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint of 7 March 2008 against the aforementioned decisions of the Hannover Public Prosecutor, the Celle Chief Prosecutor and the Celle Court of Appeal on the ground that it was inadmissible and lacked any prospect of success. The Constitutional Court held in particular that due to the period of eight months that had elapsed since the last decision of the Hannover Public Prosecutor on 27 July 2007 rejecting the applicant’s request, as confirmed by the Chief Public Prosecutor’s decision of 4 February 2008, the conditions underlying the impugned decisions might meanwhile have significantly changed in the course of the preliminary proceedings, which had now lasted for almost three years. Under these circumstances the applicant was advised to pursue his objective by having recourse to the most effective and rapid remedy available, which in the case at hand would be a renewed request with the competent Public Prosecutor to inspect the file. For this reason he lacked a legitimate interest (Rechtsschutzbedürfnis) in having his constitutional complaint examined. In the event of a further refusal by the Public Prosecutor and following an unsuccessful disciplinary complaint, a renewed constitutional complaint could be considered. On 28 April 2008 defence counsel lodged a further application with the Hannover Public Prosecutor for permission to inspect the file in the preliminary proceedings. By a letter dated 30 April 2008 his request was again refused pursuant to Article 147 § 2 of the Code of Criminal Procedure on the grounds that the investigations were ongoing and that the reasoning provided by the Celle Chief Public Prosecutor in his decision of 4 February 2008 was still valid. By a decision of 29 May 2008 the Celle Chief Prosecutor, referring to the reasoning in the decision of 4 February 2008 and confirming that the preliminary proceedings had not yet been terminated, rejected the applicant’s related disciplinary complaint as unfounded. The decision was served on the applicant on 6 June 2008. By a decision of 22 April 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint lodged on 1 July 2008 without providing reasons. The decision was served on the applicant on 30 April 2009. It appears that the applicant is still at large. Article 147 § 1 of the Code of Criminal Procedure provides that defence counsel is entitled to consult the files and to inspect the exhibits which have been presented to the trial court or which would have to be presented to the trial court in the event of indictment. Paragraph 2 of this provision provides that access to part or all of the file or to the exhibits may be refused until the preliminary investigation has ended if it might otherwise be put at risk. However, in the event that the accused is remanded in custody or, in the case of provisional arrest, pre-trial custody has been requested, information of relevance for the assessment of the lawfulness of that deprivation of liberty shall be made available to defence counsel in suitable form and, as a rule, access to the files shall be granted. Pending the termination of the preliminary investigations, it is for the Public Prosecutor’s Office to decide whether to grant access to the files or not; thereafter the decision rests with the president of the trial court (Article 147 § 5). The Public Prosecutor shall revoke an order refusing to allow inspection of the files upon conclusion of the investigation at the latest. Defence counsel shall be notified as soon as he once again has the unrestricted right to inspect the files. Pursuant to section 23 of the Introductory Act to the Courts Act (Einführungsgesetz zum Gerichtsverfassungsgesetz, EGGVG) the ordinary courts shall decide, upon request, on the lawfulness of directives, orders or other measures taken by the judicial authorities with a view to regulating individual issues in the sphere of, inter alia, criminal law. The same applies to directives, orders or other measures taken by the law enforcement authorities regarding the imposition of detention on remand. Articles 112 et seq. of the Code of Criminal Procedure (Strafprozessordnung) concern detention on remand. Pursuant to Article 112 § 1 of the Code, a defendant may be detained on remand if there is a strong suspicion that he has committed a criminal offence and if there are grounds for arresting him. Grounds for arrest will exist where certain facts warrant the conclusion that there is a risk of his absconding (Article 112 § 2 no. 2) or of collusion (Article 112 § 2 no. 3). Article 114 §§ 1 and 2 of the Code of Criminal Procedure provides that detention on remand must be ordered by a judge in a written detention order. The detention order must identify the accused, and specify the offence of which he is strongly suspected, including the time and place of its commission, and the grounds for the arrest (nos. 1-3 of Article 114 § 2). Moreover, the facts establishing the grounds for the strong suspicion that an offence has been committed and for the arrest must be set out in the detention order unless national security would thereby be endangered (Article 114 § 2 no. 4). Pursuant to Article 304 of the Code of Criminal Procedure an appeal may be lodged with the competent court by the defendant or defence counsel against a detention order that has not yet been executed with a view to having it quashed (Haftbeschwerde). Pursuant to section 230 of the Code of Criminal Procedure, German law, in principle, does not allow for an in-absentia trial. A limited number of exceptions to this rule are notably laid down in sections 231 et seq. A hearing may, in particular, be held in the defendant’s absence in cases in which he has been summoned correctly and only a fine of up to 180 “daily rates” (Tagessätze, a unit based on the average one-day net income of the offender) is to be expected (section 232 of the Code of Criminal Procedure).