Published on 20 June 2022

THIRD SECTION

Application no. 23092/20 Madonna RAUSCH against Germany lodged on 5 June 2020 communicated on 30 May 2022

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s arrest and her subsequent police questioning without counsel being present.

On 20 September 2014 the applicant and four accomplices entered the home of an elderly man and attacked him. The victim succumbed to his injuries. Based on evidence gathered at the crime scene and telephone surveillance, the police obtained a search warrant for the applicant’s apartment. On 28 January 2015 a search was conducted and the applicant and her accomplices were arrested. During her questioning in police custody the applicant admitted her involvement in the crime. On 29 January 2015 she was presented to the duty judge and an arrest warrant was issued. The applicant was charged with robbery resulting in death and sentenced to seven years and nine months’ imprisonment. The conviction was largely based on the statements obtained from the applicant and her accomplices during the police questioning. The applicant’s appeals were to no avail. The Federal Court of Justice considered, notably, that the question of the legality of her arrest had not been properly raised and that her appeal on points of law was thus inadmissible in this regard.

The applicant complained to the Court under Article 5 of the Convention that her arrest without an arrest warrant had been unlawful. Furthermore, she complained under Article 6 §§ 1 and 3 (c) of the Convention of the absence of counsel during the police questioning and that this fact and the unlawful arrest had violated her right to remain silent and not to incriminate herself.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, in so far as her application raises issues under Article 5 of the Convention? In particular, does the Federal Court of Justice’s decision to reject the applicant’s complaint regarding her arrest as inadmissible raise an issue in this regard? Furthermore, did a legal action against the lawfulness of the arrest on 28 January 2015 exist and would such a legal action have been an accessible remedy for the applicant, capable of providing redress also in respect of the present complaints and offering reasonable prospects of success in the circumstances of the case?

2. Was the applicant deprived of her liberty in breach of Article 5 § 1 of the Convention? In particular, was the applicant’s arrest and her detention during the period from 28 to 29 January 2015 “lawful” and ordered “in accordance with a procedure prescribed by law”? Furthermore, was the applicant promptly brought before a judge within the meaning of Article 5 § 3 of the Convention?

3. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, in so far as her application raises issues under Article 6 §§ 1 and 3 (c) of the Convention? In particular, were the complaints she brought before the Court under Article 6 §§ 1 and 3 (c) of the Convention properly raised before the domestic courts?

4. Has there been a breach of the applicant’s right to a fair trial under Article 6 § 1 of the Convention? Was the applicant informed of her rights under Article 6 §§ 1 and 3 (c) of the Convention by the police? If so, did she expressly waive her right to remain silent and her right to legal assistance? Even in the affirmative, was the questioning by the police in breach of the applicant’s right not to incriminate herself in view of her prior arrest without an arrest warrant (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, 13 September 2016)?