Information Note on the Court’s case-law 27

February 2001

Schöps v. Germany - 25116/94

Judgment 13.2.2001 [Section I]

Article 5

Article 5-4

Procedural guarantees of review

Refusal of access to prosecution's file in connection with continuation of detention on remand: violation

Facts : The applicant was arrested on suspicion of several offences, including fraud. The warrant referred to several witness stat ements. The applicant claims that an initial request by his lawyer for access to the investigation file was rejected by the prosecution in March 1993, although there is no record of this. The arrest warrant was amended in September 1993, when the applicant 's lawyer again requested access to the file. However, no action was taken in this respect, since the duplicate had already been forwarded to the Court of Appeal and the original was still required for the investigation. The prosecution subsequently applie d for the applicant's detention to be prolonged and his lawyer asked the Court of Appeal for access to the file. The parties disagree as to whether the applicant's lawyer agreed to proceed without such access. The Court of Appeal prolonged the detention in November 1993. The prosecution then decided to grant access to the file, although only 22 of the 24 files were made available. By the time the prosecution requested a further prolongation of the detention in February 1994, there were 69 volumes, but the a pplicant's lawyer had not been able to consult the additional ones. After the indictment had been served, copies of the file were sent to the applicant's lawyer for consultation in June 1994. The Court of Appeal again prolonged the applicant's detention. H e was later convicted.

Law : Article 5 § 4 – While an accused complaining of denial of access to the investigation files must in principle have duly applied for such access, the mere absence of any record of a request is not sufficient proof in itself that the request was not made. Whatever the date of the applicant's first request, the request of September 1993 was not followed by immediate action on the part of the authorities since the original was needed for the investigation and the duplicate had been s ent to the Court of Appeal. In this respect, it is for the judicial authorities to organise their procedure so as to meet the procedural requirements of Article 5 § 4, which does not appear to have been too difficult in the present case, as there was ample time to facilitate the consultation of the files by the defence. As regards the contention that the lawyer agreed to the review proceedings being held without access to the files, given the doubts and having regard to the importance of the hearing before the Court of Appeal, it cannot be said that the right to consult the files was waived expressly or in an unequivocal manner. As a result, when the Court of Appeal held its hearing, the applicant’s lawyer had not been able to inspect the investigation files . Since the prosecution's request for prolongation of the detention was based on the contents of the investigation file, the elements in the file appear to have been essential to the issue of the applicant’s continued detention. The information provided on the basis of the warrant and amended warrant was only an account of the facts as construed by the District Court on the basis of the information made available by the prosecution, and it is hardly possible for an accused to challenge properly the reliabil ity of such an account without being made aware of the evidence on which it is based. This requires that he be given a sufficient opportunity to take cognisance of statements and other pieces of evidence underlying them, irrespective of whether he is able to provide any indication as to the relevance for his defence of the pieces of evidence which he seeks to be given access to. It was thus essential for the defence to inspect the files prior to the hearing before the Court of Appeal, in order to be able to challenge effectively the lawfulness of the applicant’s detention. As regards the ensuing proceedings, the applicant was granted access to the file only in November 1993. However, when the prosecution asked for another prolongation of the detention in Feb ruary 1994, further volumes had been added to the file and had not been made available to the applicant’s lawyer. Consequently, when the hearing took place, the lawyer had been able to consult only a limited part of the file which was before the Court of A ppeal. While under German law access to the file is dependent on a request by the defence, in the particular circumstances an effective opportunity to inspect the additional files ought to have been offered to the defence in a situation where, by its previ ous requests for full access to the file, the defence had indicated the urgency of its interest in being kept informed about the contents of the file and a renewed request for the applicant’s continued detention had been made. In view of this, it is over-f ormalistic and disproportionate to require yet another request for access to the numerous new volumes in the file. Regard being had to the findings of the Court of Appeal, it was essential for the defence to inspect the voluminous file in order to be able to challenge effectively the lawfulness of the arrest warrant, as amended, and in the absence of such an opportunity, this stage of the proceedings did not comply with the basic requirements of judicial proceedings. As to the proceedings leading to the thi rd review hearing, all the files were forwarded in June 1994 to the applicant’s lawyer, who had them for at least two weeks before the Court of Appeal's decision on the applicant’s continued detention. Consequently, he was given an opportunity of acquainti ng himself with the essential parts of the admittedly voluminous files and of presenting the applicant’s defence in an appropriate manner.

In sum, the proceedings held in November 1993 and March 1994 for the review of the lawfulness of the applicant’s dete ntion did not satisfy the requirements of Article 5 § 4.

Conclusion : violation (unanimously).

Article 41 – The applicant did not lodge any claims for just satisfaction.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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