by Sigurd KUNKEL
The European Court of Human Rights (Fifth Section), sitting on 2 June 2009 as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Reistrar,
Having regard to the above application lodged on 8 August 2005,
Having regard to the unsuccessful friendly-settlement negotiations conducted pursuant to Article 38 § 1 (b) of the Convention,
Having regard to the Government’s request to strike the case out of its list of cases and the text of a unilateral declaration made with a view to resolving the complaint about the refusal to grant the applicant’s counsel access to the case files in the proceedings for the review of the applicant’s detention pending trial,
Having regard to the applicant’s comments on the Government’s proposal for a unilateral declaration,
Having deliberated, decides as follows:
applicant, Mr Sigurd Kunkel, is a German national who was born in
1944 and lives in Neuleiningen. He was represented before the Court
Mr H. Borggräfe, a lawyer practising in Frankfurt/Main. The German Government (“the Government”) were represented by their Agent,
Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was the managing director of a State-owned company administering the port of Ludwigshafen.
In autumn 2003 the Kaiserslautern public prosecution authorities started an investigation against the applicant on corruption charges.
On 30 November 2004 the Kaiserslautern District Court (Amtsgericht) issued an arrest warrant against the applicant. According to the District Court, there was a strong suspicion that the applicant, in his capacity as managing director, had accepted personal advantages from a number of building companies in return for favouring their bids for the company’s commissions. The strong suspicion was based on the oral statements given by the two co-accused B. and W. and on the result of the current investigations. The District Court further considered that there was a danger of the applicant’s absconding.
The applicant was arrested on 2 December 2004 and subsequently taken into pre-trial detention.
On 11 January 2005 the Kaiserslautern District Court ordered the freezing of the applicant’s personal assets in order to secure the aggrieved parties’ restitution claims (dinglicher Arrest).
April 2005 the applicant’s defence counsel applied to the
Kaiserslautern Public Prosecutor’s Office for access to the
He pointed out that, without knowledge of the contents of the case files, the applicant was unable to comment on the charges against him.
letter of the same date the applicant’s defence counsel asked
the Kaiserslautern District Court to suspend execution of the arrest
He claimed that there was no danger of the applicant’s absconding. Furthermore, he pointed out that it was not possible to prepare the applicant’s defence without access to the case file.
By a letter of 18 April 2005 the Public Prosecutor’s Office informed the applicant’s counsel that he was being refused access to the case files pursuant to Article 147 § 2 of the Code of Criminal Procedure (see relevant domestic law, below) as such access would jeopardise the purpose of the investigation.
April 2005 the Public Prosecutor sent the applicant’s counsel a
first interim report on the investigations prepared by the
Rhineland-Palatinate police headquarters on 9 February 2005 and stated that a further consultation of the case file would be contrary to Article 147 § 2 of the Code of Criminal Procedure. The sources of evidence referred to in the interim report, including a substantial number of documents and witness statements, were not made accessible to the applicant.
On 26 April 2005 the Kaiserslautern District Court rejected the applicant’s request to suspend execution of the arrest warrant on the grounds that, according to the current stage of proceedings, there remained a strong suspicion against the applicant. Furthermore, there was a high risk of his absconding.
April 2005 the applicant’s counsel lodged a request with the
Kaiserslautern Regional Court (Landgericht) for a court
decision on his request of access to the case files. He pointed out
that the refusal of access prevented him from preparing a legal case
against the detention order.
He was, in particular, not able to examine the truthfulness of the statements of the co-accused, as he did not have access to them.
On 10 May 2005 the applicant’s counsel lodged an appeal against the District Court’s decision of 26 April 2005. Relying on the Court’s case-law on Article 5 § 4 of the Convention and on the case-law of the Federal Constitutional Court, he alleged that the principle of equality of arms gave him a right of access to the case files as this was needed in order to effectively challenge the lawfulness of the applicant’s detention. The first interim report submitted by the Public Prosecutor was not sufficient to justify a continuation of his pre-trial detention.
May 2005 the Kaiserslautern Regional Court dismissed the applicant’s
request for access to the case files on the ground that complete
access would jeopardise the purpose of the investigation. It noted
that the applicant had been granted access to the first interim
report. A second interim report, which would contain all relevant
facts justifying the continuation of the applicant’s detention,
was currently being prepared and would be served on the applicant’s
counsel immediately on completion.
The Regional Court considered this to be sufficient at that stage of the proceedings.
May 2005 the Public Prosecutor sent the applicant’s counsel a
second interim report on the investigations prepared by police
headquarters on 20 May 2005 and stated that a further consultation of
the case file would be contrary to Article 147 § 2 of the Code
of Criminal Procedure.
The evidence referred to in the interim report was not made accessible to the applicant.
June 2005 the Palatinate Court of Appeal (Pfälzisches
Oberlandesgericht Zweibrücken) ordered the continuation of
the applicant’s pre-trial detention and stated that the
applicant’s appeal against his pre-trial detention had been
disposed of. Relying on the results of the investigations, in
particular the statements made by the co-accused B. and the witness
E., and the ongoing analysis of the seized documents, the Court of
Appeal considered that there was a strong suspicion that the
applicant had committed numerous acts of the nature described in the
The court further considered that there was a risk of the applicant’s absconding which could not be averted by milder means.
On 29 June 2005 the applicant lodged a constitutional complaint against the seizure of his private assets.
On 7 July 2005 the applicant lodged a constitutional complaint against the further continuation of his pre-trial detention.
On 20 July 2005 the Federal Constitutional Court, referring to the pertinent provisions of its rules of procedure, refused to accept for adjudication the applicant’s constitutional complaint against the continuation of his pre-trial detention, without giving further reasons.
On 10 August 2005 the Public Prosecutor requested the Kaiserslautern District Court to order the continuation of the applicant’s pre-trial detention and to modify the arrest warrant according to the current state of investigations.
On 12 August 2005 the Kaiserslautern District Court scheduled an oral hearing on the applicant’s detention for 22 August 2005.
August 2005 the applicant’s counsel submitted his comments.
He stated, at the outset, that it was not possible to comment on the Public Prosecutor’s charges in detail, as his extensive endeavours to gain access to the case files had been to no avail. Referring to the Court’s case-law, he alleged that the further continuation of the applicant’s detention was unlawful. Furthermore, he lodged a fresh request to be granted access to the case file.
At the end of the oral hearing held on 22 August 2005 the Public Prosecutor handed the applicant’s counsel a third interim report prepared by police headquarters on 16 August 2005. On the same day, the District Court replaced the original arrest warrant dated 30 November 2004 with a new arrest warrant.
On 24 August 2005 the applicant’s counsel asked the Public Prosecutor for access to an audit report prepared by an accounting firm to which the Public Prosecutor had referred during the hearing.
On 24 August 2005 the Public Prosecutor sent the applicant the minutes of the statements made by the three co-accused B., E and S. Further access to the case files was refused pursuant to Article 147 § 2 of the Code of Criminal Procedure as access would jeopardise the purpose of the investigation.
On 25 August 2005 the Public Prosecutor informed the applicant that he could not grant access to the audit report as the report had not been commissioned by the Public Prosecutor’s Office, but by the company’s supervisory board.
On 14 September 2005 the Palatinate Court of Appeal, having heard the applicant through written submissions, ordered the continuation of the applicant’s pre-trial detention and rejected his request for an oral hearing on the grounds that the proceedings were generally conducted in writing and that an extensive oral hearing had taken place before the District Court on 22 August 2005.
On 13 December 2005 the Palatinate Court of Appeal quashed the arrest warrant against the applicant on the grounds that the further continuation of the applicant’s detention was no longer justified, as the Public Prosecutor’s Office had failed to sufficiently expedite the investigations. The applicant was released from detention on the same day.
On 19 January 2006 the Federal Constitutional Court, sitting as a panel of three judges, quashed the decision on the seizure of the applicant’s personal assets. According to the Constitutional Court, the proceedings relating to the seizure of the applicant’s assets violated his right to a fair hearing under the Basic Law, as the applicant had not been able to consult the case files. The police investigation reports served on the applicant were not sufficient to ensure that he had a fair hearing, as the applicant had not been placed in a position to examine the evidence they were based on.
B. Relevant domestic law
112 et seq. of the Code of Criminal Procedure
(Strafprozessordnung) concern pre-trial detention. Pursuant to
§ 1, a defendant may be remanded in custody 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 (section 112 § 2 no. 2) or of collusion (section 112 § 2 no. 3).
147 § 1 of the Code of Criminal Procedure provides that defence
counsel is entitled to consult the files which have been or will be
presented to the trial court, and to inspect the exhibits. Paragraph
2 of this provision allows access to part or all of the files or to
the exhibits to be refused until the preliminary investigation has
ended if it might otherwise be at risk.
At no stage of the proceedings may defence counsel be refused access to records concerning the examination of the accused, acts in the judicial investigation at which defence counsel was or should have been allowed to be present or expert reports (section 147 § 3). Pending the termination of the preliminary investigation, it is for the Public Prosecutor’s Office to decide whether to grant access to the files or not; thereafter the decision becomes that of the president of the trial court (section 147 § 5). An accused who is in detention is entitled to seek judicial review of a decision of the Public Prosecutor’s Office to refuse access to the files (ibid.).
The applicant complained under Article 5 § 4 of the Convention that in the proceedings for the review of his detention pending trial, his counsel was refused access to the case files, which made it impossible for him effectively to challenge the lawfulness of his detention.
Relying on Article 5 § 4 of the Convention, the applicant claimed that the review proceedings had disregarded the principle of equality of arms because the refusal to allow his counsel an inspection of the case file made it impossible for him to defend himself effectively by cogently commenting on the accusations against him. Article 5 § 4 reads as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
On 3 March 2009 the Court received a declaration from the Government dated 16 February 2009 which, as far as relevant, reads as follows:
“1. In these proceedings, the Court proposed a friendly settlement, which was accepted by the Federal Government by statement dated 15 December 2008. With its above-referenced letter, the Court has now forwarded the Applicant’s letter dated 8 January 2009, in which he notifies that he is not in agreement with the conclusion of the settlement proposed by the Court.
2. As such, the Federal Government – by way of a unilateral declaration – would like to acknowledge that the proceedings with which the Applicant challenged the lawfulness of the remand detention ordered against him were not in compliance with Art. 5 para. 4 of the Convention, because the Applicant’s counsel was not permitted to inspect the files in the manner necessary.
3. If the Court strikes this case from its list, the Federal Government is willing to accept the Applicant’s claim for compensation in the amount of € 5,500.00. This sum of € 5,500.00 would be deemed to settle all claims of the Applicant in connection with the above-mentioned Application against the Federal Republic of Germany and the Land of Rhineland-Palatinate, including in particular compensation for the Applicant’s damage (including non-pecuniary damage) as well as costs and expenses. The Federal Government considers a sum of € 5,500.00 to be fair in the light of the Court’s case law in comparable cases.
4. The Federal Government therefore requests that this
Application be struck out of the Court’s list of cases pursuant
to Article 37 sec. 1 (c) of the Convention.
The Federal Government’s acknowledgment of a violation of Article 5 para. 4 of the Convention and its acceptance of the claim for compensation in the amount of € 5,500.00 constitutes “[an]other reason” within the meaning of this provision.”
applicant in his written reply of 9 March 2009 referring to his
letter of 8 January 2009 expressed his view that the sum mentioned in
the Government’s declaration did not fairly compensate him for
physical, mental and financial damage caused by the refusal to give
the applicant’s counsel access to the case files in April 2005
and he claimed compensation in the sum of EUR 50,000. He alleged that
if full access to the case file had not been denied by the Public
Prosecutor and the Kaiserslautern District Court on 18 and 26 April
2005 respectively, the applicant’s release would probably have
been ordered in mid-May 2005 instead of 13 December 2005. He claimed
minimum compensation of EUR 250 for each day of this period, that is
210 days, to cover pecuniary and non-pecuniary damage. He referred in
that context to the decision of the Federal Constitutional Court of
19 January 2006 in the parallel proceedings relating to the seizure of the applicant’s assets and pointed out that the Federal Constitutional Court had determined the value of the dispute at EUR 50,000. The applicant argued that this amount could be regarded as a fair guideline for the value of the damage sustained by the applicant in the present case also.
The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the above declaration was made by the Government on 16 February 2009 outside the framework of the friendly-settlement negotiations and the Court will therefore proceed on the basis of that declaration.
Court recalls that Article 37 of the Convention provides that it may
at any stage of the proceedings decide to strike an application out
of its list of cases where the circumstances lead to one of the
conclusions specified under (a), (b) or (c) of paragraph 1 of that
Article. In particular, Article 37
§ 1 (c) enables the Court to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the proviso that:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
Court recalls that under certain circumstances, it may strike out an
application under Article 37 § 1 (c) of the Convention on the
basis of a unilateral declaration by a respondent Government even if
the applicant wishes the examination of the case to be continued. To
this end, the Court will examine carefully the declaration in the
light of the criteria emerging from its case-law (see Tahsin Acar
v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI;
and also Haran v. Turkey, no. 25754/94, § 23, judgment of
26 March 2002, Akman v. Turkey (striking out), no. 37453/97,
§§ 30-31, ECHR 2001 VI, Meriakri v. Moldova
(striking out), no. 53487/99,
§§ 30-32, 1 March 2005, MacDonald v. the United Kingdom (dec.),
no. 301/04, 6 February 2007, and Oleksiw v. Germany (dec.), no. 31384/02, 11 September 2007).
The Court further notes that the present case raises the question whether the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention was in conformity with Article 5 § 4 of the Convention and in particular whether the applicant, whose counsel was denied access to the case file in the proceedings for judicial review of the detention order, had the benefit of adversarial proceedings in which “equality of arms” between the parties was ensured.
In this connection the Court recalls that it has already found in a
number of cases that the refusal to grant defence counsel access to
the case file in the course of proceedings reviewing his client’s
pre-trial detention was in breach of Article 5 § 4 of the
Convention (see Schöps v. Germany,
no. 25116/94, ECHR 2001 I; Lietzow v. Germany, no. 24479/94,
ECHR 2001 I; Garcia Alva v. Germany, no. 23541/94, 13 February 2001; and Łaszkiewicz v. Poland, no. 28481/03, 15 January 2008).
Government’s declaration contains an acknowledgment that the
proceedings with which the applicant challenged the lawfulness of his
pre-trial detention were not in compliance with Article 5 § 4 of the Convention, because the applicant’s counsel was not permitted to inspect the files in the manner necessary. Furthermore, the Court considers the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – to be acceptable.
Having regard to the above considerations and the particular circumstances of the case, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c) of the Convention). The Court is satisfied that respect for human rights as defined in the Convention and its Protocols does not require it to continue examination of the application (Article 37 § 1 in fine of the Convention).
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Claudia Westerdiek Peer Lorenzen