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Conseil De L'europe Council of Europe Cour CONSEIL COUNCIL DE L’EUROPE OF EUROPE COUR EUROPÉENNE DES DROITS DE L’HOMME EUROPEAN COURTOFHUMAN RIGHTS GRAND CHAMBER CASE OF MOOREN v. GERMANY (Application no. 11364/03) JUDGMENT STRASBOURG 9 July 2009 This judgment is final but may be subject to editorial revision. MOOREN v. GERMANY JUDGMENT 1 In the case of Mooren v. Germany, The European Court of Human Rights, sitting as a Grand Chamber composed of: Jean-Paul Costa, President, Christos Rozakis, Nicolas Bratza, Françoise Tulkens, Josep Casadevall, Corneliu Bîrsan, Nina Vajić, Elisabet Fura-Sandström, Alvina Gyulumyan, Khanlar Hajiyev, Dean Spielmann, Renate Jaeger, Dragoljub Popović, Ineta Ziemele, Isabelle Berro-Lefèvre, George Nicolaou, Ledi Bianku, judges, and Vincent Berger, Jurisconsult, Having deliberated in private on 24 September 2008 and on 27 May 2009, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 11364/03) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Burghard Theodor Mooren (“the applicant”), on 26 March 2003. The applicant had been granted legal aid. 2. The applicant complained that, by remitting his case back to the court of first instance instead of quashing the detention order which it had found not to comply with domestic law, the Court of Appeal had unlawfully deprived him of his liberty and had unduly delayed the judicial review proceedings. He further complained that his defence counsel had been refused access to the investigation file. He relied, in particular, on Article 5 of the Convention. 2 MOOREN v. GERMANY JUDGMENT 3. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fifth Section (Rule 52 § 1). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 4. On 13 December 2007 a Chamber of the Fifth Section, composed of the following judges: Peer Lorenzen, President, Snejana Botoucharova, Volodymyr Butkevych, Margarita Tsatsa-Nikolovska, Rait Maruste, Javier Borrego Borrego, Renate Jaeger, and also of Claudia Westerdiek, Section Registrar, delivered its judgment. The Chamber held, by five votes to two, that there had been no violation of Article 5 § 1 of the Convention, unanimously, that there had been a violation of Article 5 § 4 in so far as the applicant complained of the lack of a speedy review of the lawfulness of his detention and, unanimously, that there had been a violation of Article 5 § 4 of the Convention in so far as the applicant complained about the refusal to grant his counsel access to the case file in the proceedings for review of the lawfulness of his detention. The Chamber further held that the respondent Government was to pay the applicant 1,500 euros (EUR) in respect of non-pecuniary damage and EUR 5,150 in respect of costs and expenses. 5. On 7 February 2008 the applicant requested that the case be referred to the Grand Chamber under Article 43 of the Convention and Rule 73 of the Rules of Court, arguing that there had also been a violation of Article 5 § 1. On 2 June 2008 the Panel of the Grand Chamber accepted that request. 6. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. 7. The applicant and the Government each filed a memorial. 8. A hearing took place in public in the Human Rights Building, Strasbourg, on 24 September 2008 (Rule 59 § 3). There appeared before the Court: (a) for the Government Mrs A. WITTLING-VOGEL, Ministerialdirigentin, Agent, Mr A. STRAFNER, Public Prosecutor, Mr S. HARMS, Regional Court judge, Mr O. RÖHR, Administrative Court judge, Advisers; (b) for the applicant Mr D. HAGMANN, lawyer, Counsel, Ms M. OERDER, lawyer, Ms G. WORSDALE-WASSMUTH, interpreter, Advisers. The Court heard addresses by Mr Hagmann and Mrs Wittling-Vogel. MOOREN v. GERMANY JUDGMENT 3 THE FACTS I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1963. At the date the application was lodged, he was living in Mönchengladbach. A. The District Court's detention order 10. On 25 July 2002 the applicant was arrested. 11. On the same day the Mönchengladbach District Court ordered his detention on remand after hearing representations from him. The applicant was assisted from this point on by counsel. In a detention order running to some one and a half pages, the District Court found that there was a strong suspicion that the applicant had evaded taxes on some twenty occasions between 1996 and June 2002, an offence punishable under various provisions (which were specified in detail) of the Tax Code, the Turnover Tax Code, the Income Tax Code and the Regulations on Trade Taxes. He had been working as a self-employed commercial agent for fifteen different firms in Germany (whose names were listed in detail in the order) since 1994. He had also been running a telephone service since 2000; in 2001 a company, TMA Aachen, had paid him commission amounting to 124,926.22 Deutschmarks (DEM). The court found on the basis of the documents before it that there were grounds for suspecting the applicant of having evaded turnover taxes of 57,374 euros (EUR), income taxes of EUR 133,279 and trade taxes of EUR 20,266. 12. Noting that the applicant, who had availed himself of the right to remain silent, was strongly suspected of tax evasion on the basis of business records that had been seized when his home was searched, the District Court decided that he had to be placed in pre-trial detention because of the danger of collusion (Verdunkelungsgefahr – see Article 112 § 2 no. 3 of the Code of Criminal Procedure, cited in paragraph 45 below). It also noted that the documents seized were incomplete, so that there was a risk that the applicant, if released, might destroy the missing documents or conceal further business transactions and accounts. B. The District Court's review of the detention order 13. On 7 August 2002 the applicant, represented by counsel, lodged an application for review of his detention order (Haftprüfung) with the Mönchengladbach District Court. His counsel also requested access to the case file, which he argued he had a right to inspect in order to apprise 4 MOOREN v. GERMANY JUDGMENT himself of all the facts and evidence on which the detention order and, in particular, the strong suspicion that an offence had been committed were based. He also pointed out that domestic law prohibited the District Court from considering facts and evidence to which defence counsel had been refused access pursuant to Article 147 § 2 of the Code of Criminal Procedure (see paragraph 52 below). 14. On 12 August 2002 the Mönchengladbach Public Prosecutor's Office informed the applicant's counsel that he was being refused access to the case file pursuant to Article 147 § 2 of the Code of Criminal Procedure as it would jeopardise the purpose of the investigation. It added, however, that the public prosecutor in charge of the case was prepared to inform counsel orally about the facts and evidence at issue. The applicant's counsel did not take up that offer. 15. On 16 August 2002 the Mönchengladbach District Court heard representations from the applicant and his defence counsel. The applicant argued that there was no risk of collusion or of his absconding. Should the court nevertheless consider that he might abscond if released he was ready to comply with any conditions imposed by the court, such as handing over his identity papers. The applicant's counsel complained that he had still not had access to the case file. 16. By an order of the same day, the Mönchengladbach District Court, which had before it the case file of the proceedings, upheld the detention order. It found that there was still a risk that, if released, the applicant would tamper with factual evidence or interfere with witnesses. The applicant had consistently sought to conceal his true place of residence and other personal details from the authorities and had acted with intent to mislead which, in the particular circumstances of the case, proved that there was a danger of collusion. C. The Regional Court's review of the detention order 17. Following the applicant's appeal, which was lodged on 16 August 2002 and was followed up by detailed reasons on 19 August 2002, the Mönchengladbach Regional Court informed the applicant in a letter dated 27 August 2002 that it considered that the risk of his absconding could serve as a ground for his continued detention. As to his counsel's request for access to the case file, it stated that he should be informed orally about the content of the file in the first instance. 18. In a letter dated 2 September 2002, the applicant contested that view. He claimed, in particular, that in his case mere oral information about the content of the case file would not be sufficient. 19. On 9 September 2002, after hearing representations from the Public Prosecutor's Office and considering the case file, the Mönchengladbach Regional Court dismissed the applicant's appeal against the District Court's MOOREN v. GERMANY JUDGMENT 5 decision dated 16 August 2002. It found that there was a strong suspicion that the applicant had evaded income, turnover and trade taxes.
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