EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 23541/94

Luis Antonio Garcia Alva

against

Germany

REPORT OF THE COMMISSION

(adopted on 17 September 1998)

TABLE OF CONTENTS

...................................................... Page

I.         INTRODUCTION

           (paras. 1-18) ........................................... 1

A.                  The application

                      (paras. 2-4) ......................................   1

B.                  The proceedings

                      (paras. 5-13) .....................................   1

C.                 The present Report

                     (paras. 14-18) ....................................   2

II.         ESTABLISHMENT OF THE FACTS

            (paras. 19-44) .........................................   4

A.                  The particular circumstances of the case

                      (paras. 19-35) ....................................   4

B.                   Relevant domestic law

                       (paras. 36-44) ...................................   6

III.         OPINION OF THE COMMISSION

              (paras. 45-62) ........................................   9

A.                   Complaint declared admissible

                        (para. 45)

......................................................... 9

B.                   Point at issue

                       (para. 46) .......................................   9

C.                  Article 5 para. 4 of the Convention

                      (paras. 47-61) ....................................   9

                      CONCLUSION

                      (para. 62) ....................................... 12

DISSENTING OPINION OF MRS. J. LIDDY ........................ 13

DISSENTING OPINION OF MR. L. LOUCAIDES

JOINED BY MR. G. JÖRUNDSSON, MRS. G.H. THUNE AND

MR. I. CABRAL BARRETO .................................... 15

APPENDIX:        DECISION OF THE COMMISSION AS TO THE

                            ADMISSIBILITY OF THE APPLICATION .............   18

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Peruvian citizen, born in 1964.   When lodging his application, he was detained in a prison in Berlin.  He was represented before the Commission by Mr. M. Zieger , a lawyer practising in Berlin.

3. The application is directed against Germany. The respondent Government were represented by their Agent, Ms. H. Voelskow-Thies , Ministerialdirigentin , of the Federal Ministry of Justice.

4. The case concerns the applicant's complaint that, in the proceedings for the review of his detention on remand, his defence counsel had no access to the criminal files.  The applicant invokes Article 5 para. 4 of the Convention.

B. The proceedings

5. The application was introduced on 4 January 1994 and registered on 28 February 1994.

6. On 17 January 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 21 March 1996.  The applicant replied on 7 May 1996.

8. On 10 April 1997 the Commission (First Chamber) declared admissible the applicant's complaint under Article 5 para. 4 of the Convention.  It declared the remainder of the application inadmissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 22 April 1997 and they were invited to submit such further information or observations on the merits as they wished.  No submissions were received.

10. On 2 December 1997 the case was transferred from the First Chamber to the Plenary Commission, by decision of the latter.

11. On 13 January 1998 the Commission examined the merits of the application and decided that, in accordance with Rule 53 para. 2 of the Rules of Procedure, the respondent Government should be invited to submit further written observations.

12. The Government submitted their observations on 18 February 1998.  The applicant replied on 5 March 1998.

13. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

14. The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

15. The text of this Report was adopted on 17 September 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

16. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

17. The Commission's decision on the admissibility of the application is annexed hereto.

18. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

19. The Berlin prosecution authorities carried out an investigation of the applicant and other persons on suspicion of being involved in drug-trafficking ( Handel mit Betäubigungsmitteln ).  In March 1993 when questioned as a witness in the context of other investigation proceedings, Mr. K., who had been convicted of drug-trafficking in 1992 and sentenced to twelve years' imprisonment, outlined his drug-trafficking in Germany since 1991 and named several persons involved therein, including the applicant.  He gave more details on these issues upon his questioning in Berlin in late March.  He stated inter alia that the applicant had once kept 16kg and on four occasions 1,5kg of cocaine for a third person in an apartment in Berlin.  He also maintained that the applicant had twice sold him cocaine.

20. On 6 April 1993 preliminary investigations were initiated against the applicant on suspicion of having committed offences under the Narcotics Act ( Verstoß gegen das Betäubungsmittelgesetz ).  In the evening of the same day, the applicant was arrested.

21. 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 22kg of cocaine for one Mr. A.C. and that he had acted as an accomplice to the offence committed by Mr. A.C. , namely drug-trafficking; moreover, 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 raised by the witness Mr. K.

22. Still on 7 April 1993 he was brought before an Investigating Judge ( Haftrichter ) at the Berlin- Tiergarten District Court ( Amtsgericht ) who, after having heard the applicant, issued a warrant of arrest ( Haftbefehl ) against him.

23. According to the arrest warrant, the applicant was suspected of having, as a dealer, received in 1991 several deliveries of cocaine (total 6kg) from one Mr. A.C. , against whom separate criminal proceedings were pending; of having received further deliveries (a total of 16kg) between 16 and 18 December 1991; and of having sold in 1991, for a price of DEM 3,000, two lots of cocaine to Mr. K.  The arrest warrant founded the suspicion against the applicant on 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 about the contents of the arrest warrant.

24. 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 to the defence counsel copies of the applicant's statements to the police authorities and the Investigating Judge, of the record of the search of the applicant's premises, as well as of the arrest warrant.  As regards the remainder of the documents contained in the files, counsel's request was dismissed, pursuant to S. 147 para. 2 of the German Code of Criminal Procedure ( Strafprozeßordnung ) on the ground that such consultation would endanger the course of the investigations.

25. Subsequently the applicant chose Mr. Zieger as his new defence counsel who 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 ( Haftband ), which consisted at that time of one volume, to the Berlin- Tiergarten District Court.

26. On 14 May 1993 the Public Prosecutor's Office again sent copies of the above-mentioned documents and, as regards the remainder, 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 .

27. On 27 May 1993 the Berlin- Tiergarten District Court, after an oral hearing in the presence of the applicant, his counsel and the Prosecutor, ordered that the applicant's detention on remand should continue.  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 these depositions were particularly detailed and conclusive.  Neither the applicant nor his counsel were given access to the minutes of the questioning of Mr. K.

28. On 14 June 1993 the Berlin Regional Court ( Landgericht ) dismissed the applicant's appeal ( Beschwerde ).  The Regional Court observed that it was not competent to decide on the applicant's complaint about the refusal of full access to the files.  The Regional Court found that there was a risk of collusion. When rendering its decision, the Regional Court had the copy of the investigation file at its disposal.

29. On 15 July 1993 the Berlin Court of Appeal ( Kammergericht ) dismissed the applicant's further appeal.  The Court of Appeal found that the applicant had orally been sufficiently informed about the statements made by the witness K.  He had thereby been in a position effectively to defend himself.  Insofar as the applicant had invoked Article 5 para. 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 distinguishable 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 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 filed on 7 July 1993.

30. On 9 August 1993 the applicant lodged a constitutional complaint ( Verfassungsbeschwerde ) with the Federal Constitutional Court ( Bundesverfassungsgericht ).  Furthermore, counsel requested the Prosecutor's Office that the incriminating passages of the statements made by witness K. should be read out or otherwise be made known to him.  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 about further suspected persons and about other investigation proceedings where arrest or search warrants had not yet been executed.

31. On 13 August 1993 the 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.

32. 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.

33. On 13 September 1993 the Public Prosecution informed the 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 thereof.  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.

34. On 27 October 1993 a panel of three judges of the Federal Constitutional Court, referring to S. 93b read in conjunction with S. 93a of the Federal Constitutional Court Act ( Bundesverfassungs-gerichtsgesetz ) refused to entertain the constitutional complaint.

35. On 12 July 1994 the applicant was convicted on part of the charges which had been brought against him, namely of having acted as an accomplice to drug-trafficking in respect of the storage of 16kg and 6kg of cocaine.  He was sentenced to four years' imprisonment.  The time he had spent in detention on remand was counted towards the sentence.  The judgment became final.

B. Relevant domestic law

36. SS. 112 to 131 of the Code of Criminal Procedure ( Strafprozeß - ordnung ) concern the arrest and detention of a person on reasonable suspicion of having committed an offence.  According to S. 112 a person may be detained on remand if there is a strong suspicion that he or she committed a criminal offence and if there is a reason for arrest, such as the risk of absconding and the risk of collusion.  S. 116 regulates the suspension of the execution of an arrest warrant.

37. Under S. 117 of the Code of Criminal Procedure, the remand prisoner can request a hearing for review of the arrest warrant at any time.  An oral hearing will be held upon the request of the remand prisoner, or if the court otherwise so decides (S. 118 para. 1).  If the arrest warrant is confirmed following the review hearing, the remand prisoner is only entitled to a new review when the detention has lasted for three months and after a lapse of two months since the last review hearing.  S. 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.

38. SS. 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 S. 147 para. 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 the files or part of the files or the exhibits as long as the preliminary investigations have not been terminated, if the course of the investigations would otherwise be endangered.  During the preliminary investigations, the Public Prosecutor's Office decides on the question of granting defence counsel access to the files; thereafter the decision is taken by the trial court (S. 247 para. 4).

39. SS. 151 to 177 of the Code of Criminal Procedure regulate the principles of criminal prosecution and the preparation of the indictment.  S. 151 provides that the opening of a trial presupposes an indictment.  According to S. 152 the indictment is preferred by the Public Prosecutor's Office which is, unless otherwise provided, obliged to investigate any criminal offence of which there is a reasonable suspicion.

40. Preliminary investigations are conducted by the Public Prosecutor's Office according to SS. 160 and 161 of the Code of Criminal Procedure.  On the basis of these investigations the Public Prosecutor's Office decides under S. 170 whether to prefer an indictment or to discontinue the proceedings.

41. In German court proceedings, everyone has the "right to be heard by a court in accordance with the law" (" Anspruch auf rechtliches Gehör "), pursuant to Article 103 para. 1 of the Basic Law ( Grundgesetz ).

42. According to the case-law of the Federal Constitutional Court ( Bundesverfassungsgericht ), this concept requires a court decision to be based solely on those facts and evidential findings on which the parties had the possibility to comment.

43. In cases involving arrest and detention on remand, the arrest warrant and the court decisions confirming it in review and appeal proceedings must be founded on those facts and that evidence of which the accused was previously aware and on which he was able to comment (Federal Constitutional Court, decision of 11 July 1994 with further references).

44. In the aforementioned decision, the Federal Constitutional Court, applying this principle to cases involving arrest and detention, found that, following his arrest, an accused must be informed of the contents of the arrest warrant and must be promptly brought before a judge who, when questioning him, must inform him of all relevant incriminating evidence as well as of matters in his favour .  Moreover, in the course of ensuing review proceedings, the accused must be heard and, to the extent that the investigations will not be prejudiced, the relevant results of the investigations at that stage must be put to him.  In some cases, such oral information may not be sufficient.  If the facts and evidence grounding a decision in detention matters cannot or can no longer be communicated orally, it is necessary to have recourse to other means of informing the accused, such as a right to consult the files ( Akteneinsichtsrecht ).  Having regard to the demands of the efficient conduct of criminal investigations, there would be no objection to the statutory limitations on an accused's access to the files pending preliminary investigations.  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 information in them would affect the stance taken in the proceedings and oral information is not sufficient.  If in such cases the prosecution refuses access to the files pursuant to S. 147 para. 2 of the Code of Criminal Procedure, the court cannot base its decision on those facts and that evidence and, if necessary, has to set the arrest warrant aside (Federal Constitutional Court, loc. cit.).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

45. The Commission declared admissible the applicant's complaint that the procedure to review the lawfulness of his detention on remand did not comply with the requirements of Article 5 para. 4 of the Convention.

B. Point at issue

46. Accordingly, the issue to be determined is whether there has been a violation of Article 5 para. 4 of the Convention.

C. Article 5 para. 4 of the Convention

47. The applicant complains about the proceedings for the review of his detention on remand.  He invokes Article 5 para. 4 of the Convention.

48. Article 5 para. 4 provides 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."

49. The applicant states that the review proceedings did not ensure equality of arms.  He submits that the arrest warrant mainly referred to the statements made by the suspected person K. as the basis for the suspicion against him.  In his view, the summary information on the charges against him and the material of the file made available to him did not provide a sufficient basis on which to secure his defence .  Without full access to the files and knowledge of the complete text of the said statements, his counsel had not been able to put the credibility of Mr. K. in doubt and to defend him against the suspicion of drug-trafficking.

50. The Government maintain that Article 5 para. 4 does not give rise to a general right on the part of the accused detained on remand to inspect the files concerning the investigations against him.  The Government submit that the decision rendered by the District Court on 27 May 1993 as well as the appeal decisions taken by the Regional Court on 14 June 1993 and by the Court of Appeal on 15 July 1993 were based on evidence, in particular the records concerning the questioning of Mr. K., the details of which were not known to the defence as a result of the refusal of full access to the file.  However, the applicant had been informed of the grounds for suspicion and items of evidence against him, as well as the grounds for his detention, in such a way as to enable him effectively to exercise his defence rights.   The Government also explain the refusal of access to the files by the fact that the investigations against the applicant formed part of a complex of proceedings concerning several accused persons in the milieu of the Columbian drugs mafia .  Because of the conspiratorial behaviour of all those concerned, the establishment of the truth would have been hindered, if full access had been granted too early.

51. The Commission recalls that the Convention requires that every deprivation of liberty should be "lawful".  Lawfulness implies conformity with the substantive and the procedural rules of domestic law and also with the purpose of Article 5, namely to protect individuals from arbitrariness (cf. Eur. Court HR, Kemmache v. France (3) judgment of 24 November 1994, Series A no. 296-C, p. 88, para. 42).  Continued detention on remand can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for liberty (cf. Eur. Court HR, Van der Tang v. Spain judgment of 13 July 1995, Series A no. 321, p. 17, para. 55).

52. The purpose of Article 5 para. 4 is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected (cf. Eur. Court HR, De Wilde , Ooms and Versyp v. Belgium judgment of 18 July 1971, Series A no. 12, p. 41, para. 76).

53. The procedure followed must have a judicial character and give to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question.  The judicial proceedings referred to in Article 5 para. 4 need not always be attended by the same guarantees as those required under Article 6 para. 1 for civil or criminal litigation.  In order to determine whether proceedings provide the "fundamental guarantees of procedure applied in matters of deprivation of liberty", regard must be had to the particular nature of the circumstances in which such proceedings take place (cf. Eur. Court HR, De Wilde , Ooms and Versyp judgment, op. cit., pp. 41 and 42, paras. 76 in fine and 78; Winterwerp v. the Netherlands judgment of 24 October 1979, pp. 23 and 24, paras. 57 and 60; Megyeri v. Germany judgment of 12 May 1992, Series A no. 237-B, pp. 11-12, para. 22; Brannigan and McBride v. the United Kingdom judgment of 26 May 1993, no. 258-B, p. 54, para. 58).

54. One of the main safeguards inherent in judicial proceedings conducted in conformity with the Convention is the respect for "equality of arms", an indispensable feature of a really adversarial procedure (cf. Eur. Court HR, Sanchez- Reisse v. Switzerland judgment of 21 October 1986, Series A no. 107, p. 19, para. 51; Lamy v. Belgium judgment of 30 March 1989, Series A no. 151, pp. 16-17, para. 29; Kampanis v. Greece judgment of 13 July 1995, Series A no. 318-A, p. 45, para. 47).

55. The opportunity of effectively challenging the statements or views which the prosecution bases on specific documents in the file,  may in certain instances presuppose that the defence be given access to these documents (cf. Eur. Court HR, Lamy v. Belgium judgment of 30 March 1989, Series A no. 151, pp. 16-17, para. 29; No. 15964/90, Bernaerts v. Belgium, Comm. Report 30.6.93, not published; see also, mutatis mutandis , Eur. Court HR, Brannigan and McBride judgment, loc. cit.).

56. In the present case, the applicant was, upon his arrest, informed in general terms of the grounds for suspicion and of the evidence against him, as well as the grounds for his detention.  Moreover, upon counsel's request, copies of the applicant's statements to the police authorities and the Investigating Judge, of the record of the search of the applicant's premises, as well as of the arrest warrant against him were made available to the defence .  On the basis of this information, the applicant made submissions in his defence .  However, at this stage, the Public Prosecutor's Office refused counsel's request for  consultation of the investigation files, and in particular of the depositions made by Mr. K., on the ground that consultation of these documents would endanger the course of the investigations.

57. The Commission considers that on 27 May 1993, on the occasion of the hearing before the Berlin- Tiergarten District Court which had to decide on the applicant's request for a review of his detention on remand, the applicant and his counsel did not have the opportunity of effectively challenging the findings in the arrest warrant.  The defence had no opportunity of commenting upon the main evidence referred to by the Public Prosecutor's Office, and in particular to question the reliability or conclusiveness of the depositions made by Mr. K. who was himself affected by the investigations concerning drug offences.

58. The Berlin- Tiergarten District Court reached its conclusion that there was a strong suspicion that the applicant had committed the offences in question on the basis of the contents of the investigation file and the parties' submissions.  In June and July 1993 the applicant's respective appeals were dismissed by the Berlin Regional Court and the Berlin Court of Appeal, which also had a copy of the files at their disposal.

59. In the Commission's view, it was essential for the defence at this stage to inspect the relevant parts of the documents in question in order effectively to challenge the lawfulness of the arrest warrant.  In fact, the arrest warrant mentioned no evidence other than the depositions made by Mr. K.  In this situation, there was no possibility to provide access to the relevant evidence gradual intervals.  Moreover, given that the applicant could apply for a second review only after a lapse of a further two months, the delay in providing the applicant's defence counsel with an opportunity to inspect the said material at the initial stage was disproportionate.

60. Whereas the Public Prosecutor and the Berlin- Tiergarten District Court were familiar with the whole file, the procedure before the District Court did not afford the applicant an opportunity of challenging appropriately the reasons relied upon to justify his remand in custody.  The Commission finds that under these circumstances the procedure was not truly adversarial and did not therefore comply with the basic requirements of judicial proceedings.  In this context, the Commission recalls that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective (cf. Eur. Court HR, Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 16, para. 33).

61. In these circumstances, the procedure before the Berlin- Tiergarten District Court, which reviewed the lawfulness of the applicant's detention on remand, and the ensuing appeal proceedings, did not comply with the guarantees afforded by Article 5 para. 4.

CONCLUSION

62. The Commission concludes, by 27 votes to 5, that in the present case there has been a violation of Article 5 para. 4 of the Convention.

        M. de SALVIA                                                               S. TRECHSEL

         Secretary                                                                                 President

      to the Commission                                                            of the Commission

(Or. English)

DISSENTING OPINION OF MRS. J. LIDDY

I agree with the majority that one of the basic requirements of judicial proceedings is an adversarial procedure.

I also agree with Mr. Loucaides when he recalls that the judicial proceedings referred to in Article 5 para. 4 need not always be attended by the same guarantees as those required under Article 6 para. 1 for civil or criminal litigation ( Megyeri v. Germany judgment of 12 May 1992, Series A no. 237-B).

In the present case the District Court's decision that there was a strong suspicion against the applicant was based on a reading of the case-file which was not available to the applicant from the outset. Nonetheless, as pointed out by Mr. Loucaides , the applicant had some, albeit limited, information about the grounds for suspicion against him.

This limited information would apparently have sufficed to enable the applicant to challenge the existence of a "reasonable suspicion" within the meaning of Article 5 para. 1 (c). Under domestic law, however, the lawfulness of his detention depended in part on the existence of "strong suspicion". Does this mean that the "lawfulness of his detention" within the meaning of Article 5 para. 4 could only be decided on after the relevant evidence of strong suspicion had been opened to the applicant for adversarial argument? In the light of the fact that in general German law gives a higher level of protection against detention than required by Article 5 para. 1 (c) (by providing for "strong" suspicion), does Article 5 para. 4 require more than the existing provision in domestic law for consultation of the case-file except in exceptional circumstances? To date, Article 5 para. 4 has not been interpreted as always requiring access to the prosecution's full case-file from the outset, a course that would have obvious risks for continuing investigations in exceptionally grave and difficult cases such as those concerning drug-ring and corruption cases. On balance, it seems to me that to find in the present case that such consultation was required merely because German law provides a test of "strong suspicion" would amount to saying that the best is the enemy of the good.

On the other hand, does Article 5 para. 4 require that decisions on detention on remand be based on and cite only such evidence for "reasonable suspicion" as the individual has had an opportunity to challenge? In the Brogan and others judgment of 29 November 1988 (Series A no. 145-B) the Court unanimously found no violation of Article 5 para. 4 where the domestic law review encompassed compliance with the technical requirements of the relevant statute and "may" extend, inter alia , to an inquiry into the reasonableness of the suspicion grounding the arrest. The Court was satisfied that the applicants in that case had available to them a remedy "allowing the competent court to examine not only compliance with the procedural requirements ... but also the reasonableness of the suspicion grounding the arrest ..." Bearing in mind the differences which can exist between Contracting States in their implementation of the guarantees of Article 5 in domestic law, it seems to me that Article 5 para. 4 does not always require the competent court to cite only such evidence of "reasonable suspicion" as the applicant has been able to challenge.

In the Neumeister case (judgment of 27 June 1968) the Court rejected the argument that decisions concerning detention on remand relate to "civil rights and obligations" such that all the attributes of a fair hearing under Article 6 attached. In the recent case of Aerts v. Belgium (judgment of 30 July 1998) the Court has found that "the right to liberty, which was thus at stake, is a civil right" and that the refusal of legal aid impaired the very essence of that applicant's right to a tribunal. The issue in that case concerned the detention of a person of unsound mind and it is not clear whether the Court intended to reverse its earlier jurisprudence to the effect that Article 5 para. 4 is the lex specialis in the case of decisions on detention on remand and that Article 6 did not apply.

Even assuming that Article 6 para. 1 does apply to decisions relating to detention on remand, I recall the words of Judge Walsh in his dissenting opinion in the Brannigan and Mc Bride judgment of 26 May 1993 (Series A no. 258): "The concealment of sources and the names of informants is a matter that arises in many areas in the prosecution of offences ... a police claim of privilege against disclosure is invariably upheld. It is quite wrong to suggest that the adversary procedure of the common law requires such disclosure, particularly on first appearance in court". Claims of privilege can in practice also arise in civil cases, under a procedure allowing the judge to inspect the documentation before deciding whether it should be disclosed.

It has not been established that such procedures are always in violation of Article 6 para. 1 or whether, on the contrary, there may be exceptional circumstances justifying them provided sufficient safeguards against arbitrariness and injustice are in place. Likewise, I do not find it established that the procedures adopted in the present case prior to trial were not justified by the exceptional circumstances of the nature of the suspected offence. Moreover, sufficient safeguards against arbitrariness and injustice existed, as the investigation files would become fully known to the defence at a later stage and as release would be ordered if detention became disproportionate in the light of the guarantee under Article 5 para. 3 to trial within a reasonable time or release pending trial.

In these circumstances, not without considerable difficulty, I have come to the conclusion that there is no violation of Article 5 para. 4

(Or. English)

DISSENTING OPINION OF MR. L. LOUCAIDES

JOINED BY MR. G. JÖRUNDSSON, MRS. G.H. THUNE AND

MR. I. CABRAL BARRETO

I am unable to agree with the decision of the majority that there was a violation of Article 5 para. 4 of the Convention.

The basic complaint of the applicant is that he was deprived of effective judicial review of his detention because he did not have full access to the contents of the investigation file and generally to the material placed before the Court in support of his detention. The applicant complains that the procedure which was followed was contrary to the principle of "equality of arms" and that he was denied an adversarial procedure.

It is correct that the purpose of Article 5 para. 4 is to assure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected. But as it was pointed out by the Court, "the judicial proceedings referred to in Article 5 para. 4 need not always be attended by the same guarantees as those required under the Article 6 para. 1 for civil or criminal litigation" ( Megyery v. Germany judgment of 12 May 1992, Series A, no. 237-B, pp. 11-12, para. 22). This approach takes into account the different scope and objective of the judicial proceedings under Article 5 para. 4 as compared with those under Article 6.

In the case of the examination of the lawfulness of an arrest or detention under Article 5 para. 1(c) there is no question of a trial regarding the guilt or innocence of the detainee in respect of any criminal charge. The only objective of such judicial supervision is to protect individuals from arbitrariness. The role of the Court and the rights of the detainee are inevitably limited and different as compared to the situation in trial proceedings.

The Court went as far as to say that "Article 5 para. 1 (c) of the Convention should not be applied in such a manner as to put disproportionate difficulties in the way of the Police authorities of the Contracting States in taking effective measures to counter organised terrorism" (Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182, p. 17, para. 34). On the basis of that approach the Court stated that "the Contracting States cannot be asked to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorism by disclosing the confidential sources of supporting information or even facts which would be susceptible of indicating such sources or their identity" (ibid.). The same approach should be applicable in respect of any serious crime.

Accordingly, in deciding the nature and extent of information that should be given to an arrested person in order to allow him to test the lawfulness of his arrest a balance should be kept between giving sufficient material to allow a judicial review of the lawfulness of the detention and avoiding disclosure of information or material which may undermine the investigation in respect of which the detention has taken place. Thus, the information to be given to an arrested person in such cases may be limited to the essential legal and factual grounds for his arrest; it does not necessarily extend to the whole spectrum of information in the hands of the investigating authorities (cf. Fox, Campbell and Hartley , op.cit ., p. 19, para. 40).

In the present case, the applicant was, upon his arrest on 7 April 1993, informed in general terms of the grounds for suspicion and the evidence against him, as well as the grounds for his detention. He was also given oral information on the contents of the arrest warrant.  Moreover, upon counsel's request, copies of the applicant's statements to the police authorities and the Investigating Judge, of the record of the search of the applicant's premises, as well as a copy of the arrest warrant against him were made available to the defence still in April and again in May 1993.  On the basis of this information, the applicant, represented by counsel, lodged his request for release and made submissions in his defence .

It is true that, at this early stage, the Public Prosecutor's Office refused counsel's request for consultation of the investigation files, and in particular of the depositions made by Mr. K.  The Public Prosecutor's Office considered that consultation of these documents would endanger the course of the investigations, especially as the records on the questioning of Mr. K. contained information about further suspected persons and about other investigation proceedings.  In this context, I note that, as stated by the Berlin Regional Court in its decision of 14 June 1993, one of the reasons justifying detention was the risk of collusion.

On 27 May 1993, on the occasion of the hearing before the Berlin- Tiergarten District Court, which had to decide on the applicant's request for a review of his detention on remand, his defence counsel did not have the very text of Mr. K.'s deposition at his disposal in order to challenge the findings in the arrest warrant.  Nevertheless, on the basis of the oral information as well as the copies of documents given to them, in particular the arrest warrant, the defence had the opportunity of commenting upon the main evidence referred to by the Public Prosecutor's Office, and in particular upon the depositions made by Mr. K. who, as the defence was aware, was himself affected by the investigations concerning drug offences.

The Berlin- Tiergarten District Court, on the basis of the contents of the investigation file and the parties' submissions, reached the conclusion that there was a strong suspicion that the applicant had committed the offences in question.  In June and July 1993 this decision was confirmed by the Berlin Regional Court and the Berlin Court of Appeal, respectively.

I believe it was not essential that, at this very early stage of the criminal proceedings against the applicant, the defence be given an opportunity to inspect the documents in question in order effectively to challenge the lawfulness of the arrest warrant.

As regards the further course of the proceedings, I note that already on 13 August 1993 applicant's counsel obtained copies of the records on the questioning of Mr. K. to the extent that they related to the applicant.  One month later, counsel was informed that there were no longer any reasons to refuse full inspection of the file, and he obtained access to the full file in September 1993.

Having regard to all relevant material, I believe that the applicant had at his disposal a procedure to have the lawfulness of his detention reviewed, which afforded him an adequate opportunity of challenging the reasons relied upon to justify his remand in custody. In these circumstances, I find that there has been no violation of Article 5 para. 4 in this case.