Resolution CM/ ResDH (2011)216 [1]

Execution of the judgment of the European Court of Human Rights

Mooren against Germany

(Application No. 11364/03, judgment of 9 July 2009, Grand Chamber)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the final judgment transmitted by the Court to the Committee;

Recalling that the violations of the Convention found by the Court in this case concern the lack of a speedy review of the lawfulness of the applicant ’ s detention, as well as the violation of the principle of equality of arms on account of the refusal to grant the applicant ’ s counsel access to the case-file in proceedings for review of the lawfulness of his detention (two violations of Articles 5, paragraph 4 ) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)216

Information about the measures to comply with the judgment in the case of

Mooren against Germany

Introductory case summary

The case concerns the failure to review promptly the lawfulness of the applicant ’ s detention on remand (violation of Article 5§4).

The applicant was arrested on 25 July 2002 on suspicion of tax evasion and remanded in custody until his release on 7 November 2002. On 9 March 2005 he was convicted of tax evasion and sentenced to a total of one year and eight months ’ imprisonment suspended on probation.

The European Court noted in particular that the decision of 14 October 2002 of the Düsseldorf Court of Appeal to remit the case to the District Court instead of taking its own decision on the merits had caused unjustified delay in the judicial review proceedings.

The case also concerns refusal to grant the applicant ’ s lawyer access to the case file in the proceedings - violation of the principle of equality of arms (violation Article 5§4). The applicant ’ s lawyer was authorised to consult the case file only on 20 November 2002, after the applicant ’ s release.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

3 000 EUR

5 650 EUR

8 650 EUR

Paid on 7/10/2009

b) Individual measures

The European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicant. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The government submitted that the existing law clearly requires appeal courts to take their own decision in cases in which they find an appeal well-founded (Article 309 (2) of the Code of Criminal Procedure). In the present case, the decision of the Düsseldorf Court of Appeal to remit the case to the District Court was not compatible with the relevant procedural law; thus the violation constituted an isolated incident resulting from the particular circumstances of the case.

2) Legislative amendments concerning the denial of access to the case-file:

Article 147(2) and (7) have been amended by the Act of 29 July 2009 ( Federal Law Gazette I, p. 2274, Article 1 No. 10; entry into force on 1 January 2010) to the effect that information that is essential for evaluating the lawfulness of detention of an accused shall be made available to him or to his defence counsel in an appropriate way. According to this provision, as a rule, this information is made available by granting the defence counsel access to the files.

3) Publication and dissemination:

The European Court ’ s judgment was sent out to the courts concerned. Furthermore, a German translation of the judgment was sent to the ministries of justice of all Länder for notification within their area of responsibility.

Moreover, it will be included in the Federal Ministry of Justice ’ s Report on the Case-Law of the European Court of Human Rights and on the Execution of its Judgments and Decisions in Cases against the Federal Republic of Germany in 2009 . This report is widely disseminated and is published on the Federal Ministry of Justice website ( www.b m j.de under the heading “ Themen I Menschenrechte I EGMR I Rechtsprechung des EGMR ”).

III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Germany has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies