EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 24479/94

Hugo Lietzow

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. 19-57) ......................................... 4

A. The particular circumstances of the case

                        (paras. 19-48) .................................... 4

B. Relevant domestic law

                       (paras. 49-57) .................................... 7

III. OPINION OF THE COMMISSION

            (paras. 58-75) ......................................... 10

A. Complaint declared admissible

                        (para. 58) ...................................... 10

B. Point at issue

                        (para. 59) ...................................... 10

C. Article 5 para. 4 of the Convention

                        (paras. 60-74) ................................... 10

CONCLUSION

                        (para. 75) ...................................... 13

DISSENTING OPINION OF MRS. J. LIDDY

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

MM. L. LOUCAIDES AND I. CABRAL BARRETO .................... 14

APPENDIX: DECISION OF THE COMMISSION AS TO THE

                        ADMISSIBILITY OF THE APPLICATION ...............   15

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 German national, born in 1925 and resident in Schwalbach .  He was represented before the Commission by Mr. E. Kempf , a lawyer practising in Frankfurt/Main.

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 March 1994 and registered on 27 June 1994.

6. On 6 September 1995 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 4 January 1996 after one extension of the time-limit fixed for this purpose. The applicant replied on 2 March 1996, also after one extension of the time-limit.

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 inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent to the parties on 24 April 1997 and they were invited to submit such further information or observations on the merits as they wished.  The applicant submitted observations on 18 June 1997.

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 14 April 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

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. The particular circumstances of the case

19. On 30 January 1992 the Frankfurt/Main District Court ( Amtsgericht ) issued an arrest warrant against the applicant on the suspicion of fraud ( Betrug ) and corruption ( Bestechlichkeit ).

20. The District Court found that there was a strong suspicion that, between 1981 and 1989, the applicant, in his position as director of the Vordertaunus sewage disposal authorities ( Abwasserverband ), had regularly accepted payments by the owner of an engineering office, Mr. N., and his deputy, Mr. W., and that these amounts, increased by at least 100%, were subsequently included in bills for public construction works financed by the Vordertaunus sewage disposal authorities.  Moreover, the applicant had also received a whirlpool.  The applicant had agreed with MM. N. and W., who were prosecuted in separate proceedings, that he should ensure that the sewage disposal authorities continuously conferred contracts upon the engineering office.  The District Court noted that the strong suspicion was based on the statements made by MM. N. and W. as well as on the result of the investigations in general.  No further details were set out in this respect.

21. The District Court further considered that there was a risk of collusion ( Verdunkelungsgefahr ) within the meaning of the relevant provision of the German Code of Criminal Procedure ( Strafprozeßordnung ) on the ground that the applicant could contact other accomplices or witnesses, in particular officials of the sewage disposal authorities, or employees of the engineering office, and thereby hinder the establishment of the facts, coordinate their statements or change or destroy relevant documents.

22. The applicant was arrested on 6 February 1992.

23. On 7 February 1992 Mr. Kempf , acting as the applicant's defence counsel, requested the Frankfurt District Court to hold an oral hearing on the question of the applicant's detention on remand ( Haftprüfung ).  He also applied to the Frankfurt Public Prosecutor's Office ( Staats-anwaltschaft ) to consult the investigation files, or at least the statements of MM. N. and W., since the arrest warrant made reference to these statements, and referred to his request to the District Court.

24. On the same day, the Prosecutor's Office, referring to S. 147 para. 2 of the Code of Criminal Procedure, refused the defence counsel's request, including the request to consult the statements of MM. N. and W., on the ground that the consultation of these documents would endanger the course of the investigations.  The Office noted that the investigations against the applicant formed part of very complex proceedings concerning economic offences ( Wirtschaftsstrafverfahren ) and that investigations concerning numerous relations between public officials and employees, based on corruption, had not yet been terminated.  The Office also considered that the investigations against the applicant could not be separated from the other matters.

25. On 10 February 1992 the Public Prosecutor's Office, having regard to the applicant's request for a review of his detention on remand, forwarded to the District Court six volumes of a special file relating to the applicant's detention ("Haft- Sonderheft Lietzow "), which consisted of copies of the general investigation files relating to all accused.  Having regard to the size of this special file, it presumably included all material contained in the general files which related to the applicant.

26. In written submissions of 12 February 1992, the applicant, through his counsel, commented upon the charges.

27. On 17 February 1992 the applicant lodged a request for judicial review with the Frankfurt Court of Appeal ( Oberlandesgericht ) as regards the decision of the Prosecutor's Office of 7 February 1992.  On 19 February 1992, when heard by the Public Prosecutor's Office, the applicant mainly referred to the submissions of 12 February 1992.

28. On 24 February 1992 the Frankfurt District Court, upon the applicant's request of 7 February 1992, held a hearing for the review of his detention on remand.  Upon questioning the applicant clarified some statements contained in the submissions of 12 February 1992 as far as the places of meetings with Mr. W. were concerned.  Moreover, as regards the charge of fraud, he explained his general position in relation to the sewage disposal authorities.  Upon query, he further described the circumstances of his having contacted Mr. W. shortly before his arrest.

29. At the end of the hearing, the District Court ordered the applicant's continued detention on remand.

30. In its decision, the District Court, in one sentence, stated that the strong suspicion against the applicant as indicated in the arrest warrant persisted.  Furthermore, the Court found that there remained a risk of collusion.  In this respect, the Court referred in particular to the applicant's statement at the hearing that he had contacted Mr. W.  The Court considered that the applicant had already at that stage attempted to influence the other suspect and to induce him to make a favourable statement if questioned at the Public Prosecutor's Office.  In this context, the Court attached particular weight to the fact that the applicant took this decision before knowing the concrete charges against him, the means of evidence against him or the statements made by witnesses or the other suspected persons.  The District Court also noted that the Public Prosecutor's Office had made progress in the investigations which could be completed soon.

31. The applicant filed further written comments on the charges against him on 5 and 13 March 1992.  On 18 March 1992 the applicant was again heard by the police authorities in the presence of his defence counsel.

32. On 27 March 1992 the applicant appealed against the decision of 24 February 1992.

33. On 3 April 1992 the Frankfurt District Court suspended the execution of the arrest warrant on the conditions that the applicant did not move, or notified any move to the Frankfurt Public Prosecutor's Office, that he complied with any summons in the case, that he refrained from any conversation about the criminal proceedings with officials of the Vordertaunus sewage disposal authorities and with the employees of the engineering office concerned and that he deposited DM 200,000 as security.  The applicant was released the same day.

34. On 24 April 1992 the Frankfurt Court of Appeal declared the applicant's request for a judicial review of the decision of 7 February 1992, taken by the Prosecutor's Office, inadmissible.

35. The Court of Appeal considered that the decision concerned constituted a measure taken by the judicial administration ( Justizverwaltungsakt ) which could in principle be the subject of an appeal under SS. 23 et seq. of the Introductory Act to the Courts Organisation Act ( Einführungsgesetz zum Gerichtsverfassungsgesetz ).  However, this remedy was of a subsidiary nature.

36. The Court of Appeal found that, as soon as the preliminary investigations which were directed by the Public Prosecutor's Office had been terminated, the judge would have to decide on the question of granting access to the files, and that this decision was subject to appeal.  This possibility of a subsequent judicial review was sufficient, and the temporary absence of a remedy until termination of the preliminary investigations had to be accepted in the interest of a smooth functioning of criminal justice.  In this respect, the Court of Appeal considered that the constitutional right to a court remedy ensures a right to judicial review within a reasonable time and not an immediate judicial review.

37. The Court of Appeal further stated that the fact that the applicant was detained on remand could not be regarded as a special circumstance, such as the arbitrariness of prosecution, which would call for a remedy before the termination of the preliminary investigations.  In the Court of Appeal's view, the applicant's rights were sufficiently secured in the context of the proceedings for a review of his continued detention on remand, in particular according to SS. 120 et seq. of the Code of Criminal Procedure.  In this context, the Court of Appeal observed that the courts reviewing an accused's detention on remand were prevented from deciding on whether or not to grant access to the files, this matter being within the sole competence of the Public Prosecutor's Office.  However, such absence of immediate judicial control did not amount to a denial of judicial protection.  Thus, when reviewing the question of continued detention on remand, the competent court had also to examine whether procedural rights of the remand prisoner under Article 5 para. 4 of the Convention, in the light of the case-law of the European Court of Human Rights, had been violated, and, if so, to order his release.

38. The decision was served on 6 May 1992.

39. On 13 May 1992 the applicant, noting that Mr. W. had meanwhile died, applied to the Public Prosecutor's Office for permission to consult the statements made by Mr. W. in the course of the criminal proceedings.

40. On 19 May 1992 the Public Prosecutor's Office dismissed the request on the ground that such access to the files would still endanger the course of the investigations within the meaning of S. 147 para. 2 of the Code of Criminal Procedure.

41. On 3 June 1992 the applicant lodged a constitutional complaint ( Verfassungsbeschwerde ) about the decisions of 7 February and 24 April 1992.

42. On 27 April 1993 the applicant's counsel repeated his request for access to the files.  The Public Prosecutor's Office, referring to its previous decision, dismissed the request on 3 May 1993.

43. On 29 October 1993 the Federal Constitutional Court ( Bundes-verfassungsgericht ) refused to admit the applicant's constitutional complaint.  The decision was served on 5 November 1993.

44. On 8 July 1994 the Frankfurt District Court set aside the arrest warrant against the applicant.

45. On 31 August 1994 the applicant's counsel was granted access to the files.

46. On 25 January 1995 the applicant's counsel requested the Public Prosecutor's Office to discontinue the proceedings against his client.  The applicant's counsel argued that there was no sufficient suspicion against his client.  In this respect, he referred to the result of the investigations so far and discussed in detail the statements of the co-accused, including their wording and later amendments.

47. On 18 December 1995 the Frankfurt Public Prosecutor's Office discontinued the proceedings against the applicant as far as charges of corruption prior to February 1987 were concerned on the ground that the limitation period had expired.  Furthermore, it preferred an indictment against the applicant, charging him with two counts of corruption.

48. On 8 July 1996 the Frankfurt District Court convicted the applicant of corruption on two counts and imposed a fine amounting to DM 40,000.  The applicant lodged an appeal, which he subsequently withdrew for personal reasons.

B. Relevant domestic law

49. 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.

50. 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 altogether 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.

51. 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).

52. 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.

53. 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.

54. 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 ).

55. 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.

56. 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).

57. 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 that 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 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

58. 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

59. 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

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

61. 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."

62. The applicant states that the review proceedings were not truly adversarial.  The arrest warrant indicated that the strong suspicion against him was based on the statements made by the suspected persons MM. N. and W.  In his view, the summary information on the charges against him did not provide for a sufficient basis to ensure his defence .  Without access to the files and knowledge of the said statements, his counsel had not been able to put the credibility of MM. N. and W. in doubt and to defend him against the suspicions of fraud and corruption.  Only in January 1995, following inspection of the relevant files, had his counsel been in a position to set out his defence effectively and to discuss the statements of MM. N. and W.

63. 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.  They submit that 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.  They 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 more than 160 accused persons.  With regard to the conspiratorial behaviour of all those concerned, and the collusion established in the course of the investigations, the establishment of the truth would have been hindered, if access had been granted too early.   The Government state that the District Court, when rendering its decision on 24 February 1992, had six files at its disposal containing copies of all relevant material regarding the applicant.

64. 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).

65. 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).

66. 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).

67. 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).

68. 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.).

69. In the present case, the applicant was, upon his arrest on 7 February 1992, generally informed of the grounds for suspicion and of the evidence against him, as well as the grounds for his detention.  On the basis of this information, the applicant made, in particular through his defence counsel, submissions in his defence .  However, at this stage, the Public Prosecutor's Office refused counsel's request for consultation of the investigation files, or at least the depositions made by MM. N. and W., on the ground that consultation of these documents would endanger the course of the investigations.

70. The Commission considers that on 24 February 1992, on the occasion of the hearing before the Frankfurt 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.  In particular, the defence had no opportunity to comment 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 MM. N. and W. who were themselves affected by the series of investigations concerning economic offences.

71. The Frankfurt District Court, on the basis of the contents of the file and the parties' submissions at the hearing, reached the conclusion that there was a strong suspicion that the applicant had committed the offences in question.  In this context, the Commission observes that the District Court's decision does not contain any reasoning going beyond the mere statement that the strong suspicion, as stated in the arrest warrant, persisted.

72. In the Commission's view, it was essential to inspect the documents in question in order effectively to challenge the lawfulness of the arrest warrant.  In fact, apart from the general reference to the results of the investigations, the arrest warrant mentioned no evidence other than these depositions. In this situation, there was no possibility to provide access to the relevant evidence at 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.

73. Whereas the Public Prosecutor and the Frankfurt 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).

74. In these circumstances, the procedure before the Frankfurt District Court, which reviewed the lawfulness of the applicant's detention on remand, did not comply with the guarantees afforded by Article 5 para. 4.

CONCLUSION

75. 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

JOINED BY MR. G. JÖRUNDSSON, MRS. G.H. THUNE, MM. L. LOUCAIDES

AND I. CABRAL BARRETO

After considerable hesitation I voted against a finding of violation for the reasons set out in my separate opinion in Garcia Alva v. Germany, Application No. 23541/94.