FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41077/04 by Alexander FALK against Germany

The European Court of Human Rights (Fifth Section), sitting on 11 March 2008 as a Chamber composed of:

Peer Lorenzen , President, Snejana Botoucharova , Karel Jungwiert , Rait Maruste , Renate Jaeger , Mark Villiger , Isabelle Berro-Lefèvre , judges, and Claudia Westerdiek , Section Regi strar ,

Having regard to the above application lodged on 15 November 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Alexander Falk , is a German national who was born in 1969 and lives in Hamburg . He was represented before the Court by Mr G. Strate, a lawyer practising in Hamburg .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is chief executive officer of the ISION corporation and member of the board of directors and major shareholder of the Distefora Holding corporation, Switzerland .

On 5 June 2003, the Hamburg District Court issued a warrant for the arrest of the applicant on the ground that he was strongly suspected of fraud and offences under the Stock Exchange Act on two occasions and in complicity with six other accused. The Hamburg District Court also found that the applicant was likely to abscond given his wealth, which would allow him to live abroad. His family bonds were not sufficient to prevent his absconding. Moreover, the applicant ’ s arrest was not disproportionate in view of the damage he had allegedly caused and given the sentence which he risked incurring if found guilty as charged.

On 31 July 2003, the Hamburg Regional Court amended the arrest warrant in view of the strong suspicion that the applicant had also committed fraud on two occasions. It also found that there existed the danger of absconding and prejudicing proceedings under Article 112 of the Code of Criminal Procedure.

On 14 November 2003, the Hanseatic Court of Appeal dismissed the applicant ’ s appeal against the decision of the Hamburg Regional Court of 31 July 2003.

On 29 January 2004, the Hamburg Regional Court dismissed the applicant ’ s appeal against the arrest warrant as amended on 31 July 2003.

On 20 February 2004, the Hanseatic Court of Appeal dismissed the applicant ’ s further appeal against the decision of the Hamburg Regional Court of 29 January 2004. It found that the arrest warrant was not unlawful in view of the alleged denial of access to the confiscated data. The court took the view that the present case was not comparable to cases in which the Federal Constitutional Court, the Federal Court of Justice or the European Court of Human Rights had regarded arrest warrants as unlawful, because the defence counsel had been denied access to the part of files which were necessary to respond effectively to the allegations which formed part of the arrest warrant. It found that the domestic courts had sufficiently observed the requirement to make available to the detained all materials which were important for the arrest. The applicant ’ s defence counsel had had unrestrained access to all documents, protocols of the interrogation and any other evidence on which the domestic courts had based their decisions concerning the arrest warrant. It could not be inferred from the available case-law that there existed an extended principle that the defence counsel should be given access to all other data which were seized by the investigation authorities or otherwise the arrest warrant had to be suspended.

Regardless of the above, the applicant ’ s defence counsel had been given access to all other documents that had been seized. The defence counsel ’ s motion of 24 October 2003 to have access to all data seized, which had been stored on some 500 CD-ROMs, had been granted by the Prosecutor ’ s Office on 27 October 2003 by offering access to the data in the premises of the Hamburg Office for Criminal Investigations (this offer had not been taken up by the applicant ’ s counsel). The defence counsel ’ s request to have access, in particular, to the data on the hard drive confiscated in the applicant ’ s flat was granted by handing over a copy version of the data on 22 January 2004. Prior to that, the defence counsel had been given a hard drive with these data in November and December 2003 which had however been defective. A further request by the defence counsel of 26 January 2004 to have access to data from the server of the applicant ’ s premises was granted by producing a copy of the data which was handed over to the defence counsel on 12 February 2004. The Hanseatic Court of Appeal reasoned that, even though it had not been possible to deliver the copy of the data from the entire server earlier, the arrest warrant could not be suspended as a consequence. The defence had not been deprived of any material which had been necessary to comment effectively on the allegations made in the arrest warrant. As far as there had been data on the server which had been relevant for the decisions regarding the arrest warrant, the defence counsel had already received a printed version. No other data had been used to decide on the arrest warrant.

On 31 March 2004, the Hanseatic Court of Appeal ordered the continuation of the arrest warrant of 31 July 2003. The Court of Appeal found that there had not been a violation of the right to a fair trial by refusing access to the confiscated data for the reasons set out in the decision of 20 February 2004. The voluminous material presented by the applicant ’ s counsel did not call into question the suspicion against the applicant.

On 10 May 2004, the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint against the decision of the Hanseatic Court of Appeal of 31 March 2004.

B. Rele vant domestic law

Articles 112 et seq. of the Code of Criminal Procedure concern the arrest and detention of a person on reasonable suspicion of having committed an offence. According to Article 112, a person may be detained on remand if there is a strong suspicion that he or she has committed a criminal offence and if there is a reason for arrest, such as the risk of absconding or the risk of collusion. Article 116 regulates the suspension of the execution of an arrest warrant.

Under Article 117 of the Code of Criminal Procedure, remand prisoners can ask at any time for judicial review of the arrest warrant. An oral hearing will be held at the request of the remand prisoner, or if the court so decides, of its own motion (Article 118 § 1). If the arrest warrant is held to be valid following the hearing, the remand prisoner is entitled to a new oral hearing only if the detention has lasted for three months altogether and if two months have elapsed since the last oral hearing (Article 118 § 3). Article 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. Any prolongation of detention on remand beyond an initial six months is to be decided by the Court of Appeal (Articles 121-22).

COMPLAINT

The applicant complained under Article 5 § 4 of the Convention that the Hanseatic Court of Appeal ordered the continuation of the arrest warrant, even though the applicant had been denied access to confiscated data that had been essential in order to challenge the lawfulness of the arrest warrant.

THE LAW

The applicant complained that the denial of access to the confiscated storage media amounted to a violation of Article 5 § 4 of the Convention. That provision states that:

“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 applicant complained that the Hanseatic Court of Appeal ordered the continuation of the arrest warrant despite the fact that his defence lawyer had had no access to the confiscated electronic data which was necessary to challenge the arrest warrant successfully. Only complete access to confiscated material could satisfy the rights of an accused person in detention on remand, and any restriction of the access to such data was unlawful once detention on remand had commenced. Material that was “essential” for the lawfulness of the deprivation of liberty was not limited to material that had been presented to the court which ordered the detention on remand, and the prosecution should not be the authority to decide on the relevance of the material. As the court could not review whether all relevant material had been presented by the prosecution, ultimately all material in the possession of the prosecution had to be regarded as essential. Even if only around five per cent of the material confiscated by the prosecution was relevant to the present criminal trial and the material presented to the court contained some 4,000 pages, the applicant ’ s counsel had been able to find facts from the remaining ninety-five per cent of the data which suggested the applicant ’ s innocence. The Hanseatic Court of Appeal, in its decision of 31 March 2004, had wrongly considered these facts not to call into question the suspicion against the applicant. The fact alone that the defence had been able to detect exonerating evidence in the remaining data was sufficient to prove that the domestic courts would not have ordered the continuation of the arrest warrant had the applicant ’ s legal counsel had access to all confiscated material in time.

The Court recalls that in view of the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted under Article 5 § 4 of the Convention should in principle also meet, to the largest extent possible under the circumstances of an ongoing investigation, the basic requirements of a fair trial as guaranteed by Article 6 of the Convention. The proceedings before the court examining an appeal against detention must thus be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person. While national law may satisfy this requirement in various ways, whatever method is chosen should ensure that the other party will be aware that observations have been filed and will have a real opportunity to comment thereon.

Equality of arms is not ensured if counsel is denied access to those documents in the investigation file which are essential in order effectively to challenge the lawfulness of his client ’ s detention. The Court acknowledges the need for criminal investigations to be conducted efficiently, which may imply that part of the information collected during them is to be kept secret in order to prevent suspects from tampering with evidence and undermining the course of justice. However, this legitimate goal cannot be pursued at the expense of substantial restrictions on the rights of the defence. Therefore, information which is essential for the assessment of the lawfulness of a detention should be made available in an appropriate manner to the suspect ’ s lawyer (see the case-law referred to in Mooren v. Germany , no. 11364/03, §§ 91-92, 13 December 2007).

The Court notes that the present case involved criminal investigations against the applicant for fraud and other offences which were of considerable complexity, and that the confiscated material inter alia consisted of data stored on some 500 CD-ROMs. The Hanseatic Court of Appeal, in its decision of 20 February 2004, considered that the applicant had not been denied access to the materials which were necessary to respond effectively to the allegations which formed part of the arrest warrant. It also found that the applicant ’ s defence counsel had had unrestrained access to all documents, protocols of the interrogation and any other evidence on which the domestic courts had based their decisions concerning the arrest warrant. Moreover, the applicant ’ s defence counsel had been given access to all documents that had been seized, either by offering access to the data in the premises of the Hamburg Office for Criminal Investigations or by handing over a copy version of the data.

The Court notes, with the Hanseatic Court of Appeal, that the applicant had access to all the materials on which the prosecution based their arguments in favour of the arrest warrant. The applicant ’ s complaint related not to that material, but rather to material which was not used by the prosecution. Even in respect of this material, the applicant was offered access to all data on the confiscated 500 CD-ROMS in the premises of the Hamburg Office for Criminal Investigations on 27 October 2003, that is, three days after he requested access in writing. Access to data from the server of the applicant ’ s premises was granted by producing a copy of the data which was handed over to the defence counsel on 12 February 2004, that is, some two weeks after his request to do so. It is true that the defence counsel had not had actual access to the data on the hard drive confiscated in the applicant ’ s flat before 22 January 2004 because the hard drives with these data handed over to him in November and December 2003 had been defective. Of particular relevance for the Court ’ s determination of whether the applicant was deprived of access to material which was “essential” to the issue of the lawfulness of his detention is, however, the fact that the Hanseatic Court of Appeal, in its decision of 31 March 2004, observed that the material presented by the applicant ’ s counsel to challenge the arrest warrant after full access to all confiscated data did not contain elements calling into question the suspicion against the applicant. The Court further notes that the applicant failed to demonstrate in the proceedings before it that any of the material to which access was delayed would have called into question the suspicion against him if he had received it earlier and would thus have played a role in his challenge to the arrest warrant.

The Court concludes that the applicant has failed to substantiate that he was deprived of any material which was essential for the assessment of the lawfulness of his detention .

It follows that this complaint must be re j ected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President