Information Note on the Court’s case-law 210

August-September 2017

Stollenwerk v. Germany - 8844/12

Judgment 7.9.2017 [Section V]

Article 5

Article 5-4

Review of lawfulness of detention

Rejection of convicted prisoner’s appeal against continued detention without affording him opportunity to reply to prosecution’s submissions: Article 5 § 4 applicable; violation

Facts – The applicant was arrested and remanded in custody in connection with drugs offences. The decision to detain him was reviewed on eight occasions. The applicant was convicted at his trial and given a custodial sentence. He appealed. The trial court also issued a separate order continuing his detenti on.* The applicant’s appeal against that order and his subsequent request for a hearing were dismissed by the Court of Appeal.

In the Convention proceedings the applicant complained that the proceedings before the Court of Appeal had been unfair since tha t court, in breach of the principle of equality or arms, had examined both his appeal against the order for his continued detention and his request for a hearing without affording him an opportunity to reply to the Chief Public Prosecutor’s written submiss ions.

Law – Article 5 § 4: The set of proceedings that led to the court of appeal’s decision not to release the applicant pending the outcome of his substantive appeal had commenced after the trial court’s judgment convicting him. Accordingly, Articles 5 § 1 (c) and 5 § 3 of the Convention were no longer applicable to the applicant’s detention.

Although Article 5 § 4 of the Convention did not normally come into play as regards detention governed by Article 5 § 1 (a) of the Convention (lawful detention afte r conviction by a competent court), it was applicable in the applicant’s case because domestic law provided that a person is detained on remand until his or her conviction becomes final, including during appeal proceedings, and accorded the same procedural rights to all remand prisoners. Where a Contracting State provided for procedures going beyond the requirements of Article 5 § 4 of the Convention, the guarantees afforded by that provision nevertheless had to be respected in those procedures.

It was not disputed that the Court of Appeal took its decisions relating to the continuation of the applicant’s detention and his request for a subsequent hearing without informing him of the written observations of the prosecution authorities and giving him the opp ortunity to comment on them. For review proceedings to be “truly adversarial” and for equality of arms to be ensured, a party had to be informed whenever observations were filed by another party and be given a real opportunity to comment. In addition, as t his was the first time the Court of Appeal and the Chief Public Prosecutor’s Office had been involved in the proceedings the applicant could not have known their positions regarding his detention.

The proceedings were thus not truly adversarial and the principle of equality of arms had been violated.

Conclusion : violation (four votes to three).

Article 41: finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary da mage.

* Under German law, a person is detained on remand, rather than after conviction, until his or her conviction becomes final, including during appeal procedures.

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

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