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.