CASE OF GARCIA ALVA v. GERMANY
Violation of Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award
Elisabeth Palm
7. The applicant is a Peruvian national, born in 1964, and is a graduate in computer science. 8. On an unspecified date, the Berlin prosecution authorities started an investigation against the applicant and other persons on suspicion of involvement in drug-trafficking (Handel mit Betäubigungsmitteln). In March 1993, when questioned as a witness in connection with other investigation proceedings, Mr K., who had been convicted of drug-trafficking in 1992 and sentenced to twelve years’ imprisonment, outlined his drug-trafficking activities in Germany since 1991 and implicated several persons involved therein, including the applicant. He gave further details on those issues when questioned in Berlin in late March. He stated, inter alia, that the applicant had once kept 16 kg and on four other occasions 1,5 kg of cocaine for a third person in an apartment in Berlin. He also maintained that the applicant had twice sold him cocaine. 9. On 6 April 1993 preliminary investigations were initiated against the applicant on suspicion of offences under the Narcotics Act (Verstoß gegen das Betäubungsmittelgesetz). That evening the applicant was arrested. 10. In the morning of 7 April 1993 the applicant was questioned by the Berlin police authorities. In the course of this questioning, he was informed that, following the statements made by witness K., there was a strong suspicion that in 1991 he had kept 22 kg of cocaine for a Mr A.C., that he had aided and abetted the drug-trafficking offences committed by the latter and that he had sold 40g of cocaine to the witness Mr K. The applicant thereupon explained how he had met Mr A.C. and that he had known about his involvement in drug-trafficking. He also made statements on the involvement of third persons in drug-trafficking. He denied the accusations made by the witness Mr K. 11. Still on 7 April 1993 he was brought before a detention judge (Haftrichter) at the Berlin-Tiergarten District Court (Amtsgericht) who, after hearing the applicant, issued a warrant for his arrest (Haftbefehl). 12. The arrest warrant stated that the applicant was suspected of having, as a dealer, received in 1991 several deliveries of cocaine (a total of 6 kg) from a Mr A.C., against whom separate criminal proceedings were pending; of having received further deliveries (a total of 16 kg) between 16 and 18 December 1991; and of having sold in 1991, for a price of 3,000 Deutschmarks, two lots of cocaine to Mr K. The arrest warrant indicated that the applicant was suspected on the basis of the statements made by Mr K., who had previously been convicted of drug-trafficking and was being prosecuted in separate proceedings in respect of new offences. The applicant was orally informed of the content of the arrest warrant. 13. On 8 April 1993 the applicant’s defence counsel applied to the Berlin Public Prosecutor’s Office (Staatsanwaltschaft) for access to the criminal files. The Prosecutor’s Office supplied the defence counsel copies of the applicant’s statements to the police authorities and the detention judge, of the record of the search of the applicant’s premises, as well as of the arrest warrant. As regards the other documents contained in the files, counsel’s request was dismissed, pursuant to Article 147 § 2 of the Code of Criminal Procedure (Strafprozeßordnung), on the ground that such consultation would endanger the purpose of the on-going investigations. 14. Subsequently the applicant chose Mr Zieger as his new defence counsel and he repeated the request on 4 May 1993. He also applied for a review of the applicant’s detention on remand (Haftprüfung). Thereupon, on 13 May 1993 the Public Prosecutor’s Office forwarded a copy of the investigation file concerning detention matters, which at that time comprised a single volume, to the Berlin-Tiergarten District Court. 15. On 14 May 1993 the Public Prosecutor’s Office again sent copies of the above-mentioned documents and, as regards the other documents of the file, replied that for the time being a full inspection of the file could not be granted, as otherwise the purpose of the investigation proceedings would be jeopardised. 16. On 27 May 1993 the Berlin-Tiergarten District Court, after an oral hearing in the presence of the applicant, his counsel and the Public Prosecutor, ordered the applicant’s continued detention on remand. The District Court, having regard to the results of the investigations, especially the statements made by Mr K. who had been further questioned in the meantime, found that there was a strong suspicion that the applicant had committed the offences mentioned in the arrest warrant and was also involved in organised crime relating to drug-trafficking. The Court considered that K’s statements were particularly detailed and conclusive. Neither the applicant nor his counsel were given access to the record of K.’s questioning. 17. On 14 June 1993 the Berlin Regional Court (Landgericht) dismissed the applicant’s appeal (Beschwerde) against that decision. The Regional Court, which had a copy of the investigation file at its disposal, observed that it was not competent to decide on the applicant’s complaint about the refusal of full access to the files, while confirming that there was a risk of collusion. 18. On 15 July 1993 the Berlin Court of Appeal (Kammergericht) dismissed the applicant’s further appeal (weitere Beschwerde) against the decision of 14 June 1993. According to the Court of Appeal, the oral information provided to the applicant on the statements of witness K. had been sufficient for him to be in a position effectively to defend himself. In so far as the applicant had invoked Article 5 § 4 of the Convention and the Lamy judgment of the European Court of Human Rights, the Court of Appeal considered that the applicant’s case was different in that access to the files was not wholly excluded, but only to the extent that legitimate public interests in an effective prosecution of offenders required such measures. The Court of Appeal confirmed the existence of a risk of collusion. The Court of Appeal based its decision on the contents of a copy of the files which had been prepared by the Prosecutor’s Office for the purposes of the appeal proceedings and had been sent to the Court on 7 July 1993. 19. On 9 August 1993 the applicant lodged a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court (Bundesverfassungsgericht). Furthermore, counsel requested that the incriminating passages of the statements made by witness K. should be read out or otherwise be made known to him by the Public Prosecutor’s Office. According to a file note of 12 August 1993, the Public Prosecutor’s Office was not prepared to grant full access to the files as the records on the questioning of witness K. contained information on further suspects and other investigation proceedings where arrest or search warrants had not yet been executed. 20. On 13 August 1993 applicant’s counsel obtained copies of the records on the questioning of witness K. to the extent that they related to the applicant. Other passages had been blacked out. 21. On 23 August 1993 counsel again requested full access to the files as the copies sent to him were not comprehensible as a consequence of the blacked out passages. Moreover, he requested further investigations. The request for full access to the files was dismissed on 25 August 1993. The requested investigations were carried out. 22. On 13 September 1993 the Public Prosecutor’s Office informed applicant’s counsel that there were no longer any reasons to refuse full inspection of the files, and the Federal Constitutional Court was also informed of that fact. In view of this development, the Federal Constitutional Court asked the applicant whether he wished to maintain his constitutional complaint. The applicant’s reply was affirmative. The applicant’s lawyer was granted access to the file on 17 September 1993. 23. On 27 October 1993 the Federal Constitutional Court decided not to entertain the constitutional complaint. 24. On 12 July 1994 the applicant was convicted of aiding and abetting drug-trafficking in respect of the storage of 16 kg and 6 kg of cocaine and sentenced to four years’ imprisonment. The time he had spent in detention on remand was counted towards the sentence. The judgment became final. 25. Articles 112 et seq. of the Code of Criminal Procedure (Strafprozeßordnung) concern the arrest and detention of a person on reasonable suspicion of having committed an offence. According to Article 112 a person may be detained on remand if there is a strong suspicion that he or she has committed a criminal offence and if there is a reason for arrest, such as the risk of absconding or the risk of collusion. Article 116 regulates the suspension of the execution of an arrest warrant. 26. Under Article 117 of the Code of Criminal Procedure, remand prisoners can ask any time for judicial review of the arrest warrant. An oral hearing will be held upon the request of the remand prisoner, or if the court so decides on its own motion (Article 118 § 1). If the arrest warrant is held to be valid following an oral hearing, the remand prisoner is entitled to a new oral hearing only if the detention has lasted for three months altogether and if two months have elapsed since the last oral hearing (Article 118 § 3). Article 120 provides that an arrest warrant has to be quashed if reasons justifying the detention on remand no longer persist or if the continued detention appears disproportionate. Any prolongation of detention on remand beyond an initial six months is to be decided by the Court of Appeal (Articles 121-122). 27. Articles 137 et seq. of the Code of Criminal Procedure concern the defence of a person charged with having committed a criminal offence, in particular the choice of defence counsel or appointment of official defence counsel. According to Article 147 § 1, defence counsel is entitled to consult the files, which have been presented to the trial court, or which would have to be presented to the trial court in case of an indictment, and to inspect the exhibits. Paragraph 2 of this provision allows for a refusal of access to part or all of the files or to the exhibits, for as long as the preliminary investigation has not been terminated, if the purpose of the investigation would otherwise be endangered. Pending 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). By an Act amending the Code of Criminal Procedure (Strafverfahrensänderungsgesetz, BGBl. 2000, I, p. 1253) with effect as from 1 November 2000, the latter provision has been amended to the effect, inter alia, that an accused who is in detention is now entitled to ask for judicial review of the decision of the Public Prosecutor’s Office denying access to the file. 28. Articles 151 et seq. of the Code of Criminal Procedure regulate the principles of criminal prosecution and the preparation of the indictment. Article 151 provides that any trial has to be initiated by an indictment. According to Article 152 the indictment is to be preferred by the Public Prosecutor’s Office which is, unless otherwise provided, bound to investigate any criminal offence of which there exist sufficient grounds for suspicion. 29. Preliminary investigations are to be conducted by the Public Prosecutor’s Office according to Articles 160 and 161 of the Code of Criminal Procedure. On the basis of these investigations the Public Prosecutor’s Office decides under Section 170 whether to prefer an indictment or to discontinue the proceedings. 30. According to Article 103 (1) of the German Constitution (Grundgesetz), every person involved in proceedings before a court is entitled to be heard by that court (Anspruch auf rechtliches Gehör). According to the Federal Constitutional Court (Bundesverfassungs-gericht), this rule requires a court decision to be based only on those facts and evidential findings which could be commented upon by the parties. In cases involving arrest and detention on remand, the arrest warrant and all court decisions upholding it must be founded only on those facts and pieces of evidence of which the accused was previously aware and on which he was able to comment (Federal Constitutional Court, decision of 11 July 1994 (NJW 1994, 3219), with further references). In the aforementioned decision, the Federal Constitutional Court held that, following his arrest, an accused had to be informed of the content of the arrest warrant and promptly brought before a judge who, when questioning him, had to inform him of all relevant incriminating evidence as well as of evidence in his favour. Moreover, in the course of ensuing review proceedings, the accused must be heard and, to the extent that the investigation will not be prejudiced, the relevant results of the investigation at that stage must be put to him. In some cases, such oral information may not be sufficient. If the facts and the evidence forming the basis of a decision in detention matters cannot or can no longer be communicated orally, other means of informing the accused, such as a right to consult the files (Akteneinsicht), are to be used. On the other hand, statutory limitations on an accused’s access to the files pending the preliminary investigation are to be accepted, if the efficient conduct of criminal investigations so requires. However, even pending those investigations, an accused who is detained on remand has a right of access to the files through his lawyer if and to the extent that the information which they contain might affect his position in the review proceedings and that oral information is not sufficient. If in such cases the prosecution refuses access to the relevant parts of the files pursuant to Article 147 § 2 of the Code of Criminal Procedure, the reviewing court cannot base its decision on those facts and evidence and, if necessary, has to set the arrest warrant aside (Federal Constitutional Court, loc. cit.).