AS TO THE ADMISSIBILITY OF

                      Application No. 23541/94

                      by Luis Antonio GARCIA ALVA

                      against Germany

     The European Commission of Human Rights (First Chamber) sitting

in private on 10 April 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs.  M. HION

           Mr.   R. NICOLINI

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 4 January 1994 by

Luis Antonio GARCIA ALVA against Germany and registered on

28 February 1994 under file No. 23541/94;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     21 March 1996 and the observations in reply submitted by the

     applicant on 7 May 1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, born in 1964 in Lima, is a Peruvian citizen.  When

lodging his application, he was detained in a prison in Berlin.  In the

proceedings before the Commission, he is represented by Mr. M. Zieger,

a lawyer practising in Berlin.

A.   Particular circumstances of the case

     The facts, as submitted by the parties, may be summarised as

follows.

     The Berlin prosecution authorities investigated against the

applicant and other persons on the 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.

     On 6 April 1993 preliminary investigations were initiated against

the applicant on the suspicion of having committed offences under the

Narcotics Act (Verstoß gegen das Betäubungsmittelgesetz).  In the

evening of the same day, the applicant was arrested.

     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 the 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 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 K.

     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.  According to the arrest warrant,

the applicant was suspected of having as a dealer received in 1991

several deliveries of cocaine (total 6kg) from 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

K., who was likewise prosecuted in separate proceedings.  The applicant

was informed about the contents of the arrest warrant.

     On 8 April 1993 the applicant's defence counsel applied with the

Berlin Public Prosecutor's Office (Staatsanwaltschaft) for access to

the criminal files.  The Prosecutor's Office sent copies of the record

on the questioning of the applicant, on the search of his premises, on

the hearing before the investigating judge and of the arrest warrant.

As regards the remainder of 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.

     Subsequently the applicant chose Mr. Zieger as his new defence

counsel who repeated the request on 4 May 1993.

     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 jeopardized.

     On 27 May 1993 the District Court, after an oral hearing in the

presence of the applicant, his counsel and the Prosecutor, ordered that

detention on remand should continue.  The District Court had particular

regard to the statements made by the witness K. who had been further

questioned in the meantime.  Neither the applicant nor his counsel were

given access to the minutes of the questioning of this witness.

     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.

     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 fully 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.

     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 the 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 the witness concerned contained

information about further suspected persons and about other

investigation proceedings where arrest or search warrants had not yet

been executed.

     On 13 August 1993 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 blackened.

     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 blackened 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.

     On 13 September 1993 the Public Prosecution informed applicant's

counsel that there were no longer any reasons to deny 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.

     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.

     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

     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.

     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 after the detention

having lasted altogether three months and after a lapse of two months

after the last review hearing.  S. 120 provides that an arrest warrant

has to be quashed if reasons justifying the detention on remand do no

longer persist or if the continued detention appears disproportionate.

     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 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 terminated, if otherwise the course of the investigations would be

endangered.  In the course of the preliminary investigations, the

Public Prosecutor's Office decides on the question of granting defence

counsel access to the files, afterwards the decision is taken by the

trial court (S. 247 para. 4).

     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.

     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.

COMPLAINTS

     The applicant complains under Article 5 paras. 2 and 4 of the

Convention that his detention on remand was unlawful insofar as, and

as long as, his counsel was not allowed to inspect the files.  He

submits that this measure deprived him of his right to be informed

promptly of the reasons for his arrest and of the possibility to defend

himself in an adequate manner and in particular to obtain his release

from detention on remand.  He furthermore maintains that the violation

was aggravated by further isolation measures, such as exclusion from

the common recreation hour in prison and limited visiting facilities.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 4 January and registered on

28 February 1994.

     On 17 January 1996 the Commission decided to communicate the

application to the respondent Government.

     The Government's written observations were submitted on

21 March 1996.  The applicant replied on 7 May 1996.

THE LAW

1.   The applicant complains that his defence counsel was denied

access to part of the criminal files in his case.  He submits that he

was not, therefore, promptly informed about the charges against him and

could not properly present his defence and contest the reasons for his

detention on remand.  He invokes Article 5 paras. 2 and 4

(Art. 5-2, 5-4) of the Convention.

     Article 5 paras. 2 and 4 (Art. 5-2, 5-4) provide as follows:

     "2.   Everyone who is arrested shall be informed promptly, in a

     language which he understands, of the reasons for his arrest and

     of any charge against him.

     ...

     4.    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."

     The Commission finds that the applicant's complaint about the

lack of full access to the criminal files, in particular the statements

made by the witness K., falls within the ambit of Article 5 para. 4

(Art. 5-4) of the Convention.

     The Government submit that the applicant's complaint under

Article 5 para. 4 (Art. 5-4) is manifestly ill-founded.  In their

submission, Article 5 para. 4 (Art. 5-4) 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 maintain

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.  Moreover, the Government 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.  With regard to the

conspiratorial behaviour of all those concerned, the establishment of

the truth would have been hindered, if full access had been granted too

early.

     The applicant objects to the Government's views.  He maintains

that his counsel had been in a position to set out his defence

effectively and to discuss in particular the credibility of the witness

in question.

     The Commission considers, in the light of the parties'

submissions, that the applicant's complaint under Article 5 para. 4

(Art. 5-4) raises complex issues of law and of fact under the

Convention, the determination of which should depend on an examination

of the merits of the application.  The Commission concludes, therefore,

that this complaint is not manifestly ill-founded within the meaning

of Article 27 para. 2 (Art. 27-2) of the Convention.  No other grounds

for declaring it inadmissible have been established.

2.   The applicant may further be understood as generally complaining

that, contrary to Article 5 para. 2 (Art. 5-2), he was not promptly

informed about the reasons of his arrest.

     The Commission recalls that paragraph 2 of Article 5 (Art. 5-2)

contains the elementary safeguard that any person arrested should know

why he is being deprived of his liberty.  This provision is an integral

part of the scheme of protection afforded by Article 5 (Art. 5): by

virtue of paragraph 2 any person arrested must be told, in simple,

non-technical language that he can understand, the essential legal and

factual grounds for his arrest, so as to be able, if he sees fit, to

apply to a court to challenge its lawfulness in accordance with

paragraph 4. Whilst this information must be conveyed 'promptly' (in

French: 'dans le plus court délai'), it need not be related in its

entirety by the arresting officer at the very moment of the arrest.

Whether the content and promptness of the information conveyed were

sufficient is to be assessed in each case according to its special

features (cf. Eur. Court HR, Fox, Campbell and Hartley v. the United

Kingdom judgment of 30 August 1990, Series A no. 182, p. 19, para. 40;

Murray v. the United Kingdom judgment of 28 October 1994, Series A no.

300-A, p. 31, para. 72).

     In the present case, the applicant was arrested in the evening

of 7 April 1993.  When questioned by the police authorities in the

course of the next morning, he was informed about the charges against

him, namely several offences under the Narcotics Act and the

accusations levelled against him by the witness K. were outlined.

Still on the same day, he was heard by the investigating judge and he

was informed about the contents of this arrest warrant.

     In these circumstances, the Commission considers that the

applicant's submissions regarding the information given to him upon his

arrest do not disclose any appearance of a breach of Article 5 para. 2

(Art. 5-2) of the Convention.

3.   As regards the remainder of the applicant's complaints about the

conditions of his detention, the Commission finds that, having regard

to all the material in its possession, that the applicant's submissions

do not disclose any appearance of a violation of the rights and

freedoms set out in the Convention or its Protocols.

     For these reasons, the Commission, unanimously,

     DECLARES ADMISSIBLE, without prejudging the merits, 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 (Art. 5-4);

     DECLARES INADMISSIBLE the remainder of the application.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber