Resolution ResDH (2003)2 concerning the judgment of the European Court of Human Rights of 13 February 2001 in the case of Garcia Alva against Germany

(Adopted by the Committee of Ministers on 24 February 2003 at the 827th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the final judgment of the European Court of Human Rights in the Garcia Alva case delivered on 13 February 2001 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention;

Recalling that the case originated in an application (No. 23541/94) against Germany, lodged with the European Commission of Human Rights on 4 January 1994 under former Article 25 of the Convention by Mr Luis Antonio Garcia Alva, a Peruvian national, and that the Commission declared admissible the complaint concerning a violation of the applicant’s right to equality of arms, thus to an adversarial trial, in that, in proceedings concerning the lawfulness of his detention on remand, his counsel could not obtain access to his criminal file;

Recalling that the case was brought before the Court by the Commission, on 9 December 1998, and by the applicant, under Protocol No. 9, on 25 November 1998;

Whereas in its judgment of 13 February 2001 the Court unanimously:

- held that there had been a violation of Article 5 paragraph 4, of the Convention;

- held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

- held that the government of the respondent state was to pay the applicant, within three months, 2 000 German marks in respect of costs and expenses, together with any value-added tax that may be chargeable, and that simple interest at an annual rate of 8,42% would be payable on this sum from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicant’s claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 13 February 2001, having regard to Germany’s obligation under Article 46, paragraph 1, of the Convention to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that, within the time-limit set, the government of the respondent state had paid the applicant the sum provided for in the judgment of 13 February 2001,

Declares, after having taken note of the information supplied by the Government of Germany, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH (2003)2

Information provided by the Government of Germany during the examination of the Garcia Alva case by the Committee of Ministers

According to Section 147, paragraph 1, of the Code of Criminal Procedure ( Strafprozessordnung ), 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.

As from 1 November 2000, section 147, paragraph 5, sentence 2, of the Code of Criminal Procedure ( Strafverfahrensänderungsgesetz 1999, BGBI. 2000, part I, p. 1253 ) has been amended to the effect , inter alia , that an accused who is in detention is now entitled to ask for judicial review of the decision of the Public Prosecutor’s Office denying access to the file. The Government considers that, taking into account the direct effect given to judgments of the European Court of Human Rights (see the case of Vogt against Germany, Resolution DH(97)12) by German courts, this new review will efficiently prevent new similar violations of the Convention.

To facilitate this development, the judgment of the European Court has been circulated to the justice administrations in the Federal States ( Landesjustizverwaltunge n ), the Federal Public Prosecutor General ( Generalbundesanwalt ) and to the Federal Court of Justice ( Bundesgerichtshof ). Furthermore, the judgment has been published in No. 28 of the Neue Juristiche Wochenschrift 2002 , pp. 2018-2020.

The Government of Germany considers that, given the developments mentioned above, there will no longer exist a risk of a repetition of the violation found in the present case and, consequently, it has satisfied its obligations under Article 46, paragraph 1, of the Convention.