PROCEDURE

The case originated in an application (no. 8844/12) 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 Christof Stollenwerk (“the applicant”), on 9 February 2012.

The applicant, who had been granted legal aid, was represented by Mr D. Hagmann, a lawyer practising in Mönchengladbach. The German Government (“the Government”) were represented by one of their Agents, Mr H.-J. Behrens, Ministerialrat, of the Federal Ministry of Justice and Consumer Protection.

The applicant alleged, relying on Article 5 § 4 of the Convention, that the principle of equality of arms had been violated because the Düsseldorf Court of Appeal had taken decisions on 3 and 25 February 2011 relating to the continuation of his detention and his request for a subsequent hearing without giving him the opportunity to reply to the written observations of the Düsseldorf Chief Public Prosecutor’s Office.

On 16 March 2016 the complaint concerning Article 5 § 4 of the Convention was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1967 and lives in Düren.

On 27 August 2010 the Krefeld District Court issued a warrant for his arrest as there was a strong suspicion that he had been trafficking drugs. Earlier that day he had been stopped with 15.8 grams of heroin, which he had allegedly intended to sell. On two previous occasions he had been stopped at the German border with 11 and 12.5 grams of heroin on him. The arrest warrant was based on the risk of him absconding as he could expect a considerable sentence for the offences in question, had no social ties, being unemployed and a drug addict, and had an unstable character. That same day he was detained on remand.

Between 30 August 2010 and 11 November 2010 the lawfulness of the applicant’s detention on remand was examined eight times by the District Court or Regional Court.

In a judgment of 6 December 2010 the District Court convicted the applicant of three counts of large-scale drug trafficking – two counts of smuggling drugs into Germany and trafficking (dealt with as a single offence instead of two separate offences) and a third count of trafficking only and sentenced him to two years and six months’ imprisonment. On the same day, in a separate decision, the District Court ordered the continuation of the applicant’s detention.

On 8 December 2010 the applicant lodged an appeal against that decision. In substance he mainly referred to his previous submissions. On 13 December 2010 he lodged an appeal against the judgment.

The District Court did not allow the appeal of 8 December 2010 relating to the applicant’s detention and referred it to the Regional Court, which dismissed it on 15 December 2010, finding that there continued to be a risk of the applicant absconding.

On 5 January 2011 the applicant lodged a further appeal against that decision. In substance, again, he referred to his previous submissions. He explicitly asked that the observations of the Chief Public Prosecutor’s Office be sent to him so as to be able to comment on them.

On 28 January 2011 the Düsseldorf Chief Public Prosecutor’s Office (Generalstaatsanwaltschaft – “the prosecution authorities”) submitted written observations to the Court of Appeal, requesting the dismissal of the applicant’s appeal of 5 January 2011.

The applicant’s counsel received the observations from the prosecution authorities on 3 February 2011 and submitted a reply to the Court of Appeal on 10 February 2011.

Following a telephone enquiry to the Court of Appeal, the applicant’s counsel learned on 10 February 2011 that on 3 February 2011 it had already decided the applicant’s appeal of 5 January 2011 and dismissed it. The applicant had therefore not been able to reply to the observations of the prosecution authorities of 28 January 2011 prior to the court taking its decision.

That same day the applicant’s counsel requested a subsequent hearing (Nachholung des rechtlichen Gehörs) under Article 33a of the Code of Criminal Procedure.

On 14 February 2011 the Court of Appeal’s decision of 3 February 2011 was served on the applicant.

On an unspecified date the prosecution authorities submitted written observations in relation to the applicant’s request for a subsequent hearing.

On 25 February 2011 the Court of Appeal dismissed the request for a subsequent hearing as inadmissible, finding that the applicant’s right to be heard had not been violated, that the prosecution authorities’ observations of 28 January 2011 had not contained any facts unknown to him and there had therefore been no need to serve them on him. In so far as his submission of 10 February 2011 was to be classified as an objection (Gegenvorstellung), the court rejected it because its decision of 3 February 2011 had not been based on incorrect factual or procedural considerations. Prior to the decision of 25 February 2011, the observations of the prosecution authorities relating to the request for a subsequent hearing had not been served on the applicant, who had thus had no opportunity to reply to them. The Court of Appeal nevertheless quoted and endorsed those observations in its decision.

On 7 April 2011 the applicant lodged a complaint with the Federal Constitutional Court. He alleged, in particular, that his right to be heard, as guaranteed by Article 103 § 1 of the Basic Law (Grundgesetz), had been violated, because the Court of Appeal had taken its decisions of 3 and 25 February 2011 without giving him the opportunity to reply to the observations of the prosecution authorities.

On 28 July 2011 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint without providing reasons (2 BvR 805/11). Its decision was served on him on 10 August 2011.
NOT_CONFIDENTIAL
check
001-176970_a11_e1
001-176970_a11_em1
CODE
DIRECT
8844/12
NOT_CONFIDENTIAL
check
001-176970_a11_e2
001-176970_a11_em2
ORG
NO_MASK
Federal Republic of Germany
NOT_CONFIDENTIAL
check
001-176970_a11_e3
001-176970_a11_em3
DEM
NO_MASK
German
NOT_CONFIDENTIAL
check
001-176970_a11_e4
001-176970_a11_em4
PERSON
DIRECT
Mr Christof Stollenwerk
NOT_CONFIDENTIAL
check
001-176970_a11_e5
001-176970_a11_em5
DATETIME
QUASI
9 February 2012
NOT_CONFIDENTIAL
check
001-176970_a11_e6
001-176970_a11_em6
PERSON
QUASI
Mr D. Hagmann
NOT_CONFIDENTIAL
correct
001-176970_a11_e7
001-176970_a11_em7
LOC
QUASI
Mönchengladbach
NOT_CONFIDENTIAL
insert
001-176970_a11_e2
001-176970_a11_em8
ORG
NO_MASK
001-176970_a11_em2
German Government
NOT_CONFIDENTIAL
insert
001-176970_a11_e2
001-176970_a11_em9
ORG
NO_MASK
001-176970_a11_em2
Government
NOT_CONFIDENTIAL
check
001-176970_a11_e8
001-176970_a11_em10
ORG
NO_MASK
Federal Ministry of Justice and Consumer Protection
NOT_CONFIDENTIAL
check
001-176970_a11_e9
001-176970_a11_em11
ORG
QUASI
Düsseldorf Court of Appeal
NOT_CONFIDENTIAL
check
001-176970_a11_e10
001-176970_a11_em12
DATETIME
QUASI
3 and 25 February 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e11
001-176970_a11_em13
ORG
QUASI
Düsseldorf Chief Public Prosecutor’s Office
NOT_CONFIDENTIAL
check
001-176970_a11_e12
001-176970_a11_em14
DATETIME
QUASI
16 March 2016
NOT_CONFIDENTIAL
check
001-176970_a11_e2
001-176970_a11_em15
ORG
NO_MASK
Government
NOT_CONFIDENTIAL
check
001-176970_a11_e13
001-176970_a11_em16
DATETIME
QUASI
1967
NOT_CONFIDENTIAL
check
001-176970_a11_e14
001-176970_a11_em17
LOC
QUASI
Düren
NOT_CONFIDENTIAL
check
001-176970_a11_e15
001-176970_a11_em18
DATETIME
QUASI
27 August 2010
NOT_CONFIDENTIAL
check
001-176970_a11_e16
001-176970_a11_em19
ORG
QUASI
Krefeld District Court
NOT_CONFIDENTIAL
check
001-176970_a11_e17
001-176970_a11_em20
MISC
QUASI
trafficking
NOT_CONFIDENTIAL
check
001-176970_a11_e18
001-176970_a11_em21
DATETIME
NO_MASK
Earlier that day
NOT_CONFIDENTIAL
insert
001-176970_a11_e19
001-176970_a11_em22
QUANTITY
QUASI
15.8 grams of heroin
NOT_CONFIDENTIAL
insert
001-176970_a11_e20
001-176970_a11_em23
LOC
NO_MASK
German border
NOT_CONFIDENTIAL
insert
001-176970_a11_e21
001-176970_a11_em24
QUANTITY
QUASI
11 and 12.5 grams of heroin
NOT_CONFIDENTIAL
check
001-176970_a11_e22
001-176970_a11_em25
DATETIME
QUASI
Between 30 August 2010
NOT_CONFIDENTIAL
check
001-176970_a11_e23
001-176970_a11_em26
DATETIME
QUASI
11 November 2010
NOT_CONFIDENTIAL
check
001-176970_a11_e24
001-176970_a11_em27
ORG
NO_MASK
District Court or Regional Court
NOT_CONFIDENTIAL
check
001-176970_a11_e25
001-176970_a11_em28
DATETIME
QUASI
6 December 2010
NOT_CONFIDENTIAL
check
001-176970_a11_e24
001-176970_a11_em29
ORG
QUASI
001-176970_a11_em27
District Court
NOT_CONFIDENTIAL
insert
001-176970_a11_e26
001-176970_a11_em30
MISC
QUASI
large-scale drug trafficking
NOT_CONFIDENTIAL
insert
001-176970_a11_e27
001-176970_a11_em31
MISC
QUASI
two counts of smuggling drugs into Germany
NOT_CONFIDENTIAL
insert
001-176970_a11_e28
001-176970_a11_em32
MISC
QUASI
trafficking (dealt with as a single offence instead of two separate offences)
NOT_CONFIDENTIAL
insert
001-176970_a11_e17
001-176970_a11_em33
MISC
QUASI
trafficking
NOT_CONFIDENTIAL
insert
001-176970_a11_e29
001-176970_a11_em34
DATETIME
NO_MASK
two years and six months
NOT_CONFIDENTIAL
check
001-176970_a11_e24
001-176970_a11_em35
ORG
QUASI
District Court
NOT_CONFIDENTIAL
check
001-176970_a11_e30
001-176970_a11_em36
DATETIME
QUASI
8 December 2010
NOT_CONFIDENTIAL
check
001-176970_a11_e31
001-176970_a11_em37
DATETIME
QUASI
13 December 2010
NOT_CONFIDENTIAL
check
001-176970_a11_e24
001-176970_a11_em38
ORG
QUASI
District Court
NOT_CONFIDENTIAL
check
001-176970_a11_e30
001-176970_a11_em39
DATETIME
QUASI
8 December 2010
NOT_CONFIDENTIAL
check
001-176970_a11_e32
001-176970_a11_em40
ORG
NO_MASK
Regional Court
NOT_CONFIDENTIAL
check
001-176970_a11_e33
001-176970_a11_em41
DATETIME
QUASI
15 December 2010
NOT_CONFIDENTIAL
check
001-176970_a11_e34
001-176970_a11_em42
DATETIME
QUASI
5 January 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e35
001-176970_a11_em43
DATETIME
QUASI
28 January 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e11
001-176970_a11_em44
ORG
QUASI
Düsseldorf Chief Public Prosecutor’s Office
NOT_CONFIDENTIAL
insert
001-176970_a11_e36
001-176970_a11_em45
ORG
NO_MASK
Generalstaatsanwaltschaft
NOT_CONFIDENTIAL
insert
001-176970_a11_e36
001-176970_a11_em46
ORG
NO_MASK
001-176970_a11_em45
prosecution authorities
NOT_CONFIDENTIAL
insert
001-176970_a11_e37
001-176970_a11_em47
ORG
NO_MASK
Court of Appeal
NOT_CONFIDENTIAL
check
001-176970_a11_e34
001-176970_a11_em48
DATETIME
QUASI
5 January 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e36
001-176970_a11_em49
ORG
NO_MASK
prosecution authorities
NOT_CONFIDENTIAL
check
001-176970_a11_e38
001-176970_a11_em50
DATETIME
QUASI
3 February 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e37
001-176970_a11_em51
ORG
NO_MASK
Court of Appeal
NOT_CONFIDENTIAL
check
001-176970_a11_e39
001-176970_a11_em52
DATETIME
QUASI
10 February 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e37
001-176970_a11_em53
ORG
NO_MASK
Court of Appeal
NOT_CONFIDENTIAL
check
001-176970_a11_e39
001-176970_a11_em54
DATETIME
QUASI
10 February 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e38
001-176970_a11_em55
DATETIME
QUASI
3 February 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e34
001-176970_a11_em56
DATETIME
QUASI
5 January 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e36
001-176970_a11_em57
ORG
NO_MASK
prosecution authorities
NOT_CONFIDENTIAL
check
001-176970_a11_e35
001-176970_a11_em58
DATETIME
QUASI
28 January 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e40
001-176970_a11_em59
DATETIME
QUASI
14 February 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e37
001-176970_a11_em60
ORG
NO_MASK
Court of Appeal
NOT_CONFIDENTIAL
check
001-176970_a11_e38
001-176970_a11_em61
DATETIME
QUASI
3 February 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e36
001-176970_a11_em62
ORG
NO_MASK
prosecution authorities
NOT_CONFIDENTIAL
check
001-176970_a11_e41
001-176970_a11_em63
DATETIME
QUASI
25 February 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e37
001-176970_a11_em64
ORG
NO_MASK
Court of Appeal
NOT_CONFIDENTIAL
check
001-176970_a11_e36
001-176970_a11_em65
ORG
NO_MASK
prosecution authorities
NOT_CONFIDENTIAL
check
001-176970_a11_e35
001-176970_a11_em66
DATETIME
QUASI
28 January 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e39
001-176970_a11_em67
DATETIME
QUASI
10 February 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e38
001-176970_a11_em68
DATETIME
QUASI
3 February 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e41
001-176970_a11_em69
DATETIME
QUASI
25 February 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e36
001-176970_a11_em70
ORG
NO_MASK
prosecution authorities
NOT_CONFIDENTIAL
check
001-176970_a11_e37
001-176970_a11_em71
ORG
NO_MASK
Court of Appeal
NOT_CONFIDENTIAL
check
001-176970_a11_e42
001-176970_a11_em72
DATETIME
QUASI
7 April 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e43
001-176970_a11_em73
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
check
001-176970_a11_e37
001-176970_a11_em74
ORG
NO_MASK
Court of Appeal
NOT_CONFIDENTIAL
check
001-176970_a11_e41
001-176970_a11_em75
DATETIME
QUASI
25 February 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e36
001-176970_a11_em76
ORG
NO_MASK
prosecution authorities
NOT_CONFIDENTIAL
check
001-176970_a11_e44
001-176970_a11_em77
DATETIME
QUASI
28 July 2011
NOT_CONFIDENTIAL
check
001-176970_a11_e43
001-176970_a11_em78
ORG
NO_MASK
Federal Constitutional Court
NOT_CONFIDENTIAL
insert
001-176970_a11_e45
001-176970_a11_em79
CODE
DIRECT
805/11
NOT_CONFIDENTIAL
check
001-176970_a11_e46
001-176970_a11_em80
DATETIME
QUASI
10 August 2011
Christof Stollenwerk
DEU
CHAMBER
Task: Annotate the document to anonymise the following person: Christof Stollenwerk