CASE OF LIETZOW 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 German national born in 1925 and living in Schwalbach. 8. On 30 January 1992 the Frankfurt am Main District Court (Amtsgericht) issued a warrant for the applicant's arrest on suspicion of fraud (Betrug) and corruption (Bestechlichkeit). According to the District Court, there was a strong suspicion that, between 1981 and 1989, the applicant, in his position as director of the Vordertaunus Sewage Disposal Department (Abwasserverband), had regularly accepted payments by the owner of an engineering company, Mr N., and his deputy, Mr W., and that these amounts, increased by at least 100%, were subsequently included in bills for public construction works financed by the Vordertaunus Sewage Disposal Department. Moreover, the applicant had also received a jacuzzi. Mr N. and Mr W. were the subject of separate investigations. There was an agreement between them and the applicant to the effect that the applicant ensured that contracts were regularly given to the engineering company by the Sewage Disposal Department. The District Court added that the account of the facts given in the arrest warrant resulted from statements made by Mr N. and Mr W. as well as from the investigations; no further details were given about their precise content. The District Court further considered that there was a risk of collusion (Verdunkelungsgefahr) within the meaning of Article 112 of the German Code of Criminal Procedure (Strafprozeßordnung), on the ground that if the applicant remained free he might try to contact other accomplices or witnesses, in particular officials of the Sewage Disposal Department or employees of the engineering company, with a view to coordinating their statements or changing or destroying written evidence, thereby hindering the establishment of the facts. 9. The applicant was arrested on 6 February 1992. 10. On 7 February 1992 Mr Kempf, counsel for the applicant, requested the Frankfurt District Court to hold an oral hearing on the applicant's detention on remand (Haftprüfung). With reference to this request, he also applied to the Frankfurt public prosecutor (Staatsanwalt) for leave to consult the investigation file, or at least the statements made by Mr N. and Mr W., since the arrest warrant made reference to them. 11. On the same day, the public prosecutor, referring to Article 147 § 2 of the Code of Criminal Procedure, refused counsel's request, including the request to consult only Mr N.'s and Mr W.'s statements, on the ground that to decide otherwise would endanger the purpose of the ongoing investigations, which formed part of very complex proceedings concerning economic offences (Wirtschaftsstrafverfahren), including corruption, and involving a large number of public officials and employees. In addition, the investigation against the applicant could not be separated from the other issues with which they were concerned. 12. In view of the hearing to be held before the District Court (see paragraph 10 above), on 10 February 1992 the public prosecutor forwarded to that court six volumes of a special file relating to the applicant's detention, which was composed of copies taken from the general investigation file relating to all the accused. 13. In written submissions of 12 February 1992, the applicant, through his counsel, commented on the charges. 14. On 17 February 1992 the applicant asked the Frankfurt Court of Appeal (Oberlandesgericht) for a judicial review (Antrag auf gerichtliche Entscheidung) of the public prosecutor's decision of 7 February 1992 (see paragraph 11 above). 15. On 19 February 1992 the applicant, when questioned by the public prosecutor, mainly referred to his submissions of 12 February 1992 (see paragraph 13 above). 16. On 24 February 1992 the Frankfurt District Court, following the applicant's request of 7 February 1992, held a hearing for the review of his detention on remand. On questioning, the applicant clarified some statements contained in his submissions of 12 February 1992 regarding the venue of his meetings with Mr W. He further explained his general position in relation to the Sewage Disposal Department and the circumstances in which he had contacted Mr W. shortly before his arrest. At the end of the hearing, the District Court ordered the applicant's continued detention on remand. As regards the strong suspicion against the applicant, the court confined itself to confirming in one sentence that it still existed as stated in the arrest warrant. Furthermore, the court found that there remained a risk of collusion, having regard in particular to the applicant's statement at the hearing that he had contacted Mr W. shortly before his own arrest. The court therefore considered that the applicant had already at that stage attempted to influence another suspect and to induce him to make a favourable statement if questioned by the public prosecutor's office. In that context, particular weight was to be given to the fact that all of this had occurred before the applicant knew the concrete charges against him, the nature of the relevant evidence or the content of the statements made by witnesses or other suspects. The District Court also noted that the public prosecutor's office had made progress in the investigations, which might therefore be completed soon. 17. The applicant filed further written comments on the charges against him on 5 and 13 March 1992. On 18 March 1992 he was again heard by the police in the presence of his counsel. 18. On 27 March 1992 the applicant appealed (Beschwerde) against the decision of 24 February 1992. As a consequence, the Frankfurt District Court decided on 3 April 1992 to suspend the execution of the arrest warrant on condition that the applicant did not change residence – or notified any change to the Frankfurt public prosecutor's office –, that he complied with any summons in the case, that he refrained from any conversation about the criminal proceedings with officials of the Vordertaunus Sewage Disposal Department or with the employees of the engineering company concerned and that he deposited 200,000 German marks (DEM) as security. The applicant was released the same day. 19. On 24 April 1992 the Frankfurt Court of Appeal declared the applicant's request for judicial review of the public prosecutor's decision of 7 February 1992 inadmissible. The court first considered that the impugned decision was a measure of judicial administration (Justizverwaltungsakt) which could in principle be the subject of a judicial review under sections 23 et seq. of the Introductory Act to the Courts Organisation Act (Einführungsgesetz zum Gerichtsverfassungsgesetz). However, that remedy was of a subsidiary nature and could therefore not be used here, as other remedies were available to the applicant for the purposes of challenging the lawfulness of the decision denying him access to the investigation file. The Court of Appeal found that it was for the trial judge to decide on the applicant's access to the file, once the public prosecutor's investigations had been completed. This decision would then be open to an appeal by the applicant. This kind of subsequent judicial review fulfilled the constitutional requirements regarding judicial protection, and the temporary absence of a remedy until the preliminary investigation was over had to be accepted in the interest of the efficiency of criminal justice. The Court of Appeal added that the constitutional right to a court remedy ensures a right to judicial review within a reasonable time, rather than an immediate judicial review. Furthermore, the fact that the applicant was detained on remand could not be regarded as a special circumstance calling – as in the case of an arbitrary prosecution – for a judicial remedy before the end of the preliminary investigation. In the Court of Appeal's view, the applicant's rights were sufficiently secured by the judicial review of his continued detention on remand, under Articles 120 et seq. of the Code of Criminal Procedure. Of course, courts reviewing an accused's detention on remand were prevented in principle from deciding whether or not to grant access to the file, that being a matter within the sole competence of the public prosecutor's office. However, the absence of such immediate judicial supervision did not amount to a denial of judicial protection, since the competent court had also to examine whether the denial of access to the file to a remand prisoner was in breach of procedural safeguards such as those laid down in Article 5 § 4 of the Convention and, if so, to order his release. The Court of Appeal's decision was served on the applicant on 6 May 1992. 20. On 13 May 1992 the applicant, noting that Mr W. had died in the meantime, applied to the public prosecutor's office for leave to consult the statements made by him in the course of the criminal proceedings. 21. On 19 May 1992 the public prosecutor's office rejected the request pursuant to Article 147 § 2 of the Code of Criminal Procedure, on the ground that access to the file would still endanger the purpose of the investigations. 22. On 3 June 1992 the applicant lodged a constitutional complaint (Verfassungsbeschwerde) against the decisions of 7 February and 24 April 1992. 23. On 27 April 1993 the applicant's counsel renewed his request for access to the file. The public prosecutor, referring to his previous decision, rejected the request on 3 May 1993. 24. On 29 October 1993 the Federal Constitutional Court (Bundesverfassungsgericht) decided not to entertain the applicant's constitutional complaint. The decision was served on 5 November 1993. 25. On 8 July 1994 the Frankfurt District Court set aside the arrest warrant against the applicant. 26. On 31 August 1994 the applicant's counsel was granted access to the file. 27. On 25 January 1995 the applicant's counsel requested the public prosecutor to discontinue the proceedings against his client, arguing that there were insufficient grounds for suspecting him. In this connection, he referred to the result of the investigations thus far and discussed in detail the statements of the co-accused, including their wording and later amendments. 28. On 18 December 1995 the Frankfurt public prosecutor discontinued the proceedings in respect of events prior to February 1987, which had become time-barred, and issued an indictment against the applicant, charging him with two counts of corruption. 29. On 8 July 1996 the Frankfurt District Court convicted the applicant of corruption on two counts and imposed on him a fine of DEM 40,000. The applicant lodged an appeal, which he subsequently withdrew for personal reasons. 30. 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. 31. Under Article 117 of the Code of Criminal Procedure, remand prisoners can ask at any time for judicial review of the arrest warrant. An oral hearing will be held at the request of the remand prisoner, or if the court so decides of its own motion (Article 118 § 1). If the arrest warrant is held to be valid following the 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 121-22). 32. 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 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 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). By an Act amending the Code of Criminal Procedure (Strafverfahrensänderungsgesetz, Bundesgesetzblatt, 2000, vol. I, p. 1253) with effect 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. 33. 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 for which there exist sufficient grounds of suspicion. 34. 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 Article 170 whether to prefer an indictment or to discontinue the proceedings. 35. According to Article 103 § 1 of the Basic Law (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 (Bundes-verfassungsgericht), 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 (Neue juristische Wochenschrift, 1994, p. 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 given 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 until the preliminary investigation are completed are to be accepted if the efficient conduct of criminal investigations so requires. However, even while those investigations are in progress, 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 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, op. cit.).