EHRM, 09-07-2009, nr. 11364/03

On 25 July 2002 the applicant was arrested.

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.

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.

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).

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.

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.

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 to conceal his true place of residence and other personal details from the authorities and had acted with intent to mislead which, in the particular circumstances of the case, proved that there was a danger of collusion.

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.

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.

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.

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.

The Regional Court's decision was served on the applicant's counsel on 16 September 2002.

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.

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.

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.

On 2 October 2002 the applicant sent further observations to the Düsseldorf Court of Appeal.

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.

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.

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.

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.

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.

As a consequence, the applicant remained in custody.

On 17 October 2002 the Mönchengladbach Public Prosecutor's Office requested the District Court to issue a fresh, amended detention order against the applicant.

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.

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.

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.

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.

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.

Having deposited the security, the applicant was released from prison on 7 November 2002.

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.

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.

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.

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.

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.

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.

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).

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.

The Government claimed that the applicant had failed to exhaust domestic remedies in respect of all his complaints to the Court. They submitted that, prior to lodging his application with the Court, he should have brought an action in the civil courts against the Land of North Rhine-Westphalia based on Article 5 § 5 of the Convention for compensation for the damage caused by the alleged breaches of Article 5 §§ 1 and 4. They conceded that in their non-exhaustion plea before the Chamber they had not claimed that the applicant should have availed himself of that remedy, but argued that they were not estopped from raising such a plea on different grounds before the Grand Chamber. In their view, the applicant should have made such a compensation claim, which was a long-established and effective remedy, in addition to his request for judicial review of his detention. As he had been released and his counsel had been granted access to the case file when the proceedings were still pending in the domestic courts, the aim of his application to the Court could only be to obtain a finding of a Convention breach and the payment of adequate compensation and should therefore have been pursued in the first instance by a compensation claim in the domestic courts.

The applicant took the view that since the Government had not objected at the admissibility stage of the proceedings before the Chamber that he should have brought a compensation claim in the domestic courts, they could not do so for the first time before the Grand Chamber.

The Court reiterates that the Grand Chamber is not precluded from examining, where appropriate, issues relating to the admissibility of an application under Article 35 § 4 of the Convention, as that provision enables the Court to dismiss applications it considers inadmissible ‘at any stage of the proceedings’ (see Odièvre v. France [GC], no. 42326/98, § 22, ECHR 2003-III; Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III; and Yumak and Sadak v. Turkey [GC], no. 10226/03, § 72, 8 July 2008). According to Rule 55 of the Rules of Court, any plea of inadmissibility must, however, in so far as its character and the circumstances permit, have been raised by the respondent Contracting Party in its observations on the admissibility of the application submitted as provided in Rule 54 (compare N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X; Azinas, cited above, §§ 32 and 37; and Sejdovic v. Italy [GC], no. 56581/00, § 41, ECHR 2006-II). Only exceptional circumstances, in particular the fact that the reason prompting an objection to admissibility became known only at a later stage, could dispense a Government from the obligation to raise their objection in their said observations before the adoption of the Chamber's admissibility decision (see N.C. v. Italy, cited above, § 44; Sejdovic, cited above, § 41; and Lebedev v. Russia, no. 4493/04, §§ 39–40, 25 October 2007).

The Court notes that in their written observations on the admissibility of the application before the Chamber, the Government did not argue that the applicant should have brought a compensation claim in the civil courts prior to lodging his application with the Court, but based their plea of non-exhaustion on several different grounds. This is indeed uncontested by the Government. However, the respondent Government's duty under Rule 55 to raise pleas of inadmissibility in their observations before the adoption of the Chamber's admissibility decision relates to a specific plea of, for instance, non-exhaustion, including the reasons given for the plea. It does not, therefore, suffice for the Government to have pleaded non-exhaustion on different grounds within the prescribed time-limit (compare, in particular, Sejdovic, cited above, §§ 40–42). Moreover, as a compensation claim based on Article 5 § 5, in the Government's submission, was a long-established remedy, the Court cannot discern any exceptional circumstances which could have released the Government from the obligation to raise their preliminary objection of non-exhaustion with reference to that remedy in their observations on admissibility before the Chamber.

Consequently, the Government are estopped from raising a preliminary objection of non-exhaustion of domestic remedies for failure to bring a compensation claim at this stage of the proceedings. Their objection must therefore be dismissed.

The applicant stressed that in his request for referral of the case to the Grand Chamber, he had not contested the Chamber's finding of a violation of Article 5 § 4 due to the refusal to grant his counsel access to the case file. He took the view that the Grand Chamber therefore did not have jurisdiction to reconsider this complaint.

The Government contested that view.

The Grand Chamber notes that the applicant's complaint under Article 5 § 4 on this point has been declared admissible by the Chamber (see paragraph 87 of the Chamber judgment). Having regard to the Court's case-law (cited above at paragraph 101), it therefore has jurisdiction to examine it.

The Government objected that the applicant had failed to exhaust domestic remedies in respect of this complaint under Article 5 § 4. He had not lodged a separate request for judicial review of the prosecution's decision not to grant his counsel access to the case file under Article 147 § 5 of the Code of Criminal Procedure.

In its judgment, the Chamber considered that the finding of a violation constituted sufficient just satisfaction in respect of the non-pecuniary damage allegedly suffered by the applicant on account of the domestic courts' failure to comply with the fairness requirement of Article 5 § 4. Conversely, it found that the applicant must have suffered distress as a result of the breach of the speed requirement under that Article and thus awarded him EUR 1,500 in respect of non-pecuniary damage (see paragraph 103 of the Chamber judgment).

The applicant stood by the claim he had made in respect of non-pecuniary damage in the proceedings before the Chamber.

He considered EUR 25,000 to be appropriate, but left it in the Court's discretion to fix an adequate amount, taking into consideration that Germany had deliberately and repeatedly breached the Convention.

The Government considered the applicant's claim to be excessive.

The Grand Chamber finds that both the violations of the fairness and of the speed requirements under Article 5 § 4 caused the applicant non-pecuniary damage, such as stress and frustration, which cannot be compensated solely by the findings of violations. Making its assessment on an equitable basis, it awards the applicant EUR 3,000 under this head, plus any tax that may be chargeable.

In its judgment, the Chamber was satisfied that the costs of the applicant's proceedings before the Federal Constitutional Court had been incurred in order to establish and redress a violation of his Convention rights. It further noted that the application before the Court was essentially well-founded. Making its own assessment, it considered it reasonable to award the sum of EUR 6,000 covering costs under all heads, less the sum received by way of legal aid from the Council of Europe (EUR 850), making a total of EUR 5,150, inclusive of value-added tax (VAT) (see paragraphs 106-07 of the Chamber judgment).

The applicant made the same claim in respect of costs and expenses as before the Chamber, where he had claimed a total of EUR 5,164.76 for the costs and expenses incurred before this Court (EUR 2,908.70 for drafting the observations and EUR 2,256.06 for their translation into English) and EUR 2,908.70 for those incurred before the Federal Constitutional Court. According to the invoices submitted by the applicant, these amounts include VAT. The applicant, who was granted legal aid covering his lawyers' appearance at the hearing, further requested the reimbursement of the costs of the translation of his submissions before the Grand Chamber into English, amounting to a total of EUR 670.51 including VAT. He adduced documentary evidence in support of that claim.

The Government left the amount to be awarded to the applicant for costs and expenses to the Court's discretion.

According to the Court's established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred, and were reasonable as to quantum. Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, for example, Beyeler v. Italy (just satisfaction) [GC], no. 33202/96, § 27, 28 May 2002, and Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003-VIII).

Having regard to its case-law and endorsing the grounds given by the Chamber, the Grand Chamber sees no reason to depart from the Chamber's finding as to the amount to be awarded in respect of the costs and expenses incurred before the domestic courts and the Chamber.

As to the additional costs and expenses in the proceedings before the Grand Chamber, it considers it reasonable to award the applicant EUR 500, including VAT, in respect of the costs incurred for the requested translation of the applicant's observations into one of the Court's official languages.

The Court therefore awards the applicant a total of EUR 5,650, inclusive of VAT, in respect of all the costs incurred in the domestic and Convention proceedings, plus any tax that may be chargeable to the applicant.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.