Judgment (Merits and Just Satisfaction) of Court (First Section), February 13, 2001 (case CASE OF SCHÖPS v. GERMANY)

Defense:GERMANY
Resolution Date:February 13, 2001
Issuing Organization:Court (First Section)
SUMMARY

Violation of Art. 5-4

 
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FIRST SECTION

CASE OF SCHÖPS v. GERMANY

(Application no. 25116/94)

JUDGMENT

STRASBOURG

13 February 2001

In the case of Schöps v. Germany,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

             Mrs              E. Palm, President,              Mrs              W. Thomassen,              Mr              L. Ferrari Bravo,              Mr              J. Casadevall,              Mr              B. Zupančič,              Mr              T. Panţîru, judges,              Mr              H. Jung, ad hoc judge,and Mr M. O'Boyle, Section Registrar,

Having deliberated in private on 23 January 2001,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 9 December 1998. It originated in an application (no. 25116/94) against the Federal Republic of Germany lodged with the Commission under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Jörg Rudolf Schöps (“the applicant”), on 4 July 1994.

  2. The applicant was represented by Mr K. Hütsch and Mr W. Küpper-Fahrenberg, both lawyers and notaries practising in Essen (Germany). The German Government (“the Government”) were represented by their Agent, Mrs H. Voelskow-Thies, Ministerialdirigentin, Federal Ministry of Justice.

  3. The case concerns the applicant's complaint that, in the proceedings for the review of his detention on remand, his defence counsel was denied access to the criminal files, contrary to Article 5 § 4 of the Convention.

  4. On 14 January 1999 a panel of the Grand Chamber decided, in accordance with Article 5 § 4 of Protocol No. 11 to the Convention taken together with Rules 100 § 1 and 24 § 6 of the Rules of Court, that the case should be dealt with by a Chamber constituted within one of the Sections of the Court. Subsequently the President of the Court assigned the case to the First Section. Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mr G. Ress, the judge elected in respect of Germany, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr H. Jung to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).

  5. The Government filed written observations on the merits (Rule 59 § 1). In spite of several reminders, counsel for the applicant did not.

  6. On 12 October 1999 the Chamber decided, pursuant to Rule 59 § 2 in fine, not to hold a hearing in the case.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  7. The applicant is a German national, born in 1953 and living in Essen.

  8. In 1992 the Essen public prosecutor's office (Staatsanwaltschaft) started investigations against the applicant and a number of other people suspected of fraud.

  9. On 11 March 1993 the Essen District Court (Amtsgericht) issued a warrant for the arrest of the applicant and two other suspects, Ms S. and Ms L., on suspicion of criminal association, drug trafficking and several counts of fraud.

    In its decision, the District Court noted that the suspects had been charged with having founded – towards the end of December 1988 – an association for the purpose of gaining large profits from fraudulent trading in options. Moreover, as from mid-1990 the suspects had agreed to import cocaine from Majorca to Germany and to sell it there. Several accomplices had been recruited as members of the criminal organisation and had been involved in the numerous criminal offences. As regards the fraudulent trading in options, almost one thousand victims had been defrauded by the criminal association between the beginning of 1989 and March 1993, and they had lost a total of sixty million German marks. Moreover, between October 1990 and August 1992 approximately 100 kg of cocaine had been imported to and sold in Germany. The District Court found that, having regard to the statements made by some witnesses and the defendants, the results of the telephone-tapping operations and other results of the investigations, there was a strong suspicion that the applicant, Ms S. and Ms L. had committed the criminal offences in question.

    The District Court also considered that there was a danger of absconding within the meaning of Article 112 § 2.2 of the Code of Criminal Procedure (Strafprozeßordnung). In this respect, the court found that, taking into account the seriousness of the offences with which the suspects were charged and the importance of the damage they had caused, they had to expect a long term of imprisonment. Moreover, the suspects obviously had sufficient financial means to abscond. According to the District Court, there was also a danger of collusion within the meaning of Article 112 § 2.3 of the Code of Criminal Procedure, since, as members of a criminal association, the suspects were accustomed to disguising the extent of their activities by having recourse to “men of straw” and fictitious contracts, and were therefore likely to suppress evidence or influence witnesses.

  10. The applicant was arrested on 19 March 1993. In the presence of his defence counsel, Mr Hütsch, he was informed by the detention judge (Haftrichter) of the charges against him and of the arrest warrant of 11 March 1993. The applicant did not make a statement. He requested an oral hearing on the lawfulness of his detention (Haftprüfung) but later withdrew his request.

  11. According to the applicant, his counsel applied as early as March 1993 to the Essen public prosecutor's office for leave to consult the investigation files, but his request was rejected on the ground that access to those documents would endanger the course of the investigations. However, neither the request nor its dismissal are recorded in the files of the public prosecutor's office.

  12. In the ensuing proceedings, counsel for the applicant was joined by a colleague, Mr Küpper-Fahrenberg.

  13. On 3 May 1993 the applicant, in the presence of defence counsel, was questioned by the police about the charges against him. He indicated that he had, in the meantime, repeatedly consulted his counsel. In the course of further interrogations on 5 and 6 May, and 13 and 20 July 1993, mostly in the presence of counsel, the applicant was questioned in detail about the charges against him, in particular about the contents of telephone calls which had been recorded by tapping under an order made in May 1992.

  14. On 8 September 1993 the Essen District Court amended the arrest warrant, adding in particular further charges of tax evasion, corruption, incitement to make a false entry in official records and making a false affidavit. The District Court confirmed that there was still a danger of the applicant and other suspects absconding and that less stringent measures could be taken only in the case of Ms S. Consequently the execution of the warrant for Ms S.'s arrest could be suspended, whereas the applicant and Ms L. had to be further remanded in custody.

  15. On 14 September 1993 the applicant was informed of the amended arrest warrant. His counsel then applied for access to the files. No action was taken on that request as the duplicate copy of the files had already been forwarded to the Düsseldorf Court of Appeal (Oberlandesgericht) for the purposes of the review proceedings, while the original files were needed for the purposes of the continuing investigations.

  16. On 14 September 1993 the Hamm public prosecutor's office (Generalstaatsanwaltschaft) requested the prolongation of the applicant's and Ms L.'s detention on remand. In this request, to which 24 investigation files were attached, the public prosecutor noted the history of the detention proceedings and summarised the offences of which the suspects were accused. As to the factual details, he referred to the arrest warrant and a police report of July 1993 which were to be found in the attached files. According to the public prosecutor, the strong suspicion against the suspects was based on the statements of the suspects and of witnesses, the opinion of a stockbroking expert, records of telephone tapping and seized business documents, which were all included in the investigation files. He also confirmed that there was a danger of absconding.

  17. In his reply of 21 October 1993, the applicant's defence counsel applied to the Düsseldorf Court of Appeal for access to the files, for an oral hearing on the question of the applicant's continued detention and for his release. He submitted that he could not comment in detail on the public prosecutor's submission as, despite repeated promises, he had not yet been granted access to the investigation files, and the public prosecutor's submissions were fragmentary and therefore did not provide a sufficient basis for him to rely on.

  18. According to a handwritten file note drafted by the Court of Appeal rapporteur, the applicant's counsel, in answer to a telephone query, had agreed to a decision on the question of the applicant's continued detention on remand being taken without him having been given access to the files...

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