FIFTH SECTION

Application no. 12851/12 Ömer AY against Germany lodged on 28 February 2012

STATEMENT OF FACTS

Th e applicant, Mr Ömer Ay, is a Turkish national, who was born in 1974 and lives in Frankenthal . He is rep resented before the Court by Mr M. Leonhardt , a lawyer practising in Frankfurt a m Main.

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

1. The Kaiserslautern District Court ’ s detention order

On 18 October 2011 the Kaiserslautern District Court issued an arrest warrant against the applicant on suspicion of tax evasion ( Steuerhinterziehung ) and falsification of documents ( Urkundenfälschung ). According to the District Court, the applicant had failed to comply with his obligation to declare a total amount of 9.400.000 euros (EUR) for turnover tax purposes for the second half of 2012. The District Court further considered that there was a risk of his absconding. The applicant had the Turkish nationality and had been in the possession of falsified passports.

The applicant was arrested on 8 November 2011 and brought before the pre-trial investigation judge. Further, the applicant was given notice of the contents of the arrest warrant.

2. The Kaiserslautern District Court ’ s review of the detention order

On 10 November 2011, counsel requested the Kaiserslautern District Court to hold an oral hearing in order to review the applicant ’ s detention on remand. Counsel further requested access to the investigation file.

On 18 November 2011, the applicant was interrogated by tax officials and confessed the alleged facts concerning the tax evasion.

On 29 November 2011 the District Court held a hearing and suspended the arrest warrant. During the hearing counsel complained of the fact that he had not been granted access to the investigation file yet.

On the same day, after the oral hearing, the Public Prosecutor granted counsel access to the investigation files. Further, he appealed the decision to suspend the arrest warrant and requested to give his appeal suspensory effect.

The District Court granted the request and ordered to keep the applicant in detention pending the appellate decision on 29 November 2011.

3. The Kaiserslautern Regional Court ’ s decision

On 2 December 2011 the Kaiserslautern Regional Court quashed the District Court ’ s decision of 29 November 2011 and ordered the applicant ’ s detention to be continued. Having regard to the applicant ’ s confession before the tax authorities which he had repeated before the District Court, it considered that there was a strong suspicion that the applicant had committed tax evasion. The Regional Court underlined that a decision about a detention or the review of a detention order could only be based on those parts of the case that had been accessible to the defence . However, it held that in the case at hand the detention order was based on the applicant ’ s confession. Thus, the failure to grant access to the investigation files was of no relevance. The Regional Court further stressed that access to the investigation file had been granted immediately after the District Court ’ s hearing.

The Regional Court also confirmed the finding of the District Court as regards the risk of absconding. In view of the charges concerning falsified passports, the applicant ’ s Turkish nationality and his family ties in Turkey as well as the expected serious sentence it refused to suspend the execution of the detention order.

4. The Zweibr ücken Court of Appeal ’ s review of the detention order

On 5 December 2011 the applicant lodged a further appeal against the Regional Court ’ s decision.

On 13 December 2011 the Zweibrü cken Court of Appeal dismissed the applicant ’ s further appeal. As to the access to the case file it pointed out that an arrest warrant as well as decisions confirming the pre-trial detention could only rely on such facts and evidence that the applicant had been aware of and had had a chance to comment on. Referring to the case-law of the Federal Constitutional Court, it found that the accused had to be informed about the accusation, the evidence and the grounds of detention ( Haftgründe ) as soon as he was informed about an arrest warrant and before a decision about the detention was made. In the case at issue the applicant had been informed on 8 November 2011 about the arrest warrant and the evidence against him. Further, he had had the opportunity to comment on the conclusions drawn. The applicant used this possibility in the proceedings, in particular during the hearing concerning the review of his pre-trial detention on 29 November 2011. During this hearing, the District Court had informed him about the relevant results of the investigation at that stage, including his confession, and debated the current state of the proceedings. Immediately following the order for the applicant ’ s release, counsel was granted access to the case file.

The Court of Appeal also noted that the courts had based their decisions to detain the applicant mainly on his confession. Moreover, during the appellate proceedings the applicant had had again the chance to take note of the investigation file and to challenge the reasons of the arrest warrant. T he Court of Appeal concluded that under these circumstances the applicant ’ s right to be heard had not been violated.

5. The p roceedings before the Federal Constitutional Court

On 6 February 2012 the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint fo r consideration (file no. 2 BvR 25/12). It held that a violation of the right to be heard and a restriction of the right to a fair trial by the failure to grant access to the investigation file could be remedied on a higher level of jurisdiction. The Federal Constitutional Court observed that it was indeed the purpose of several levels of jurisdiction to remedy errors of lower courts, be they of a procedural or substantive nature. In the case at hand, the applicant had had access to the case file in the first instance. Thus, the Regional Court and the Court of Appeal, both dealing with questions of fact and law, were able to consider what he would have submitted provided that access to the case file had been granted by the District Court before the first hearing.

COMPLAINT

The applicant complains under Article 5 §§ 1, 4 and 5, read in conjunction with Article 6 §§ 1 and 3 (b) of the Convention that he was refused to inspect the case file in the proceedings concerning the review of his pre-trial detention .

QUESTION S TO THE PARTIES

1. Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention?

2. In particular, did the procedure before the District Court satisfy the requirements of the principle of equality of arms?