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Rook v. Germany
Rook v. Germany
JUDGMENT
STRASBOURG
25 July 2019
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
ROOK v. GERMANY JUDGMENT 1
PROCEDURE
1. The case originated in an application (no. 1586/15) 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 Michael Rook (“the
applicant”), on 2 January 2015.
2. The applicant was represented by Mr T. Junker, a lawyer practising in
Augsburg. The German Government (“the Government”) were represented
by their Agents, Mr H.-J. Behrens and Ms K. Behr of the Federal Ministry
of Justice and Consumer Protection.
3. The applicant alleged that, during the criminal proceedings against
him, he and his counsel had not been provided with sufficient and adequate
access to audio files, text messages and electronic files (specifically emails
and other text documents) which the investigating authorities had seized
throughout the investigation. He relied on Article 6 § 1 and 3 (b) of the
Convention.
4. On 16 September 2016 notice of the application was given to the
Government.
2 ROOK v. GERMANY JUDGMENT
THE FACTS
A. Criminal investigation
1. Telecommunication surveillance
7. During the investigation wide-ranging telecommunication
surveillance was carried out. A total of around 44,970 telephone calls and
about 34,000 other data sets were stored as part of this. The latter included
text and multimedia messages, system files or network providers’ report
files resulting from technical communication between a device and the
provider. The data sets for the individual exchanges over
telecommunications media were entered into a special criminal-police
database at the Bavarian Office of Criminal Investigation in Munich. They
were analysed by the police. Eventually, transcripts of twenty-eight
telephone conversations which had been considered relevant were prepared,
printed and subsequently included in the (paper) investigation file.
2. Electronic files
8. During searches of the applicant’s home and of other premises
between 13 July 2011 and 1 February 2012, some 14 million electronic files
(for example emails and other text documents), stored on a range of data
devices, for example hard discs, were seized. The files of each device were
copied as a single “image file”, the devices were returned to the rightful
holders, including the applicant, afterwards. Each image file was a full
digital clone of each data device, readable with a program available free of
charge online. However, the image files were subsequently entered into a
ROOK v. GERMANY JUDGMENT 3
Identnummer (“ID number”); and a “link to each MP3 file with filenames”.
The public prosecutor’s office informed the applicant’s lawyer on the same
day that his request had been forwarded to the responsible criminal police
unit, as the public prosecutor’s office was not aware if providing such lists
was technically possible. The public prosecutor’s office did not itself have
at its disposal the requested lists.
access to telephone records which touched on the private life of others was
granted. In so far as the applicant’s appeal exceeded the granted access, in
particular in so far as the applicant strived for possession of a copy of the
files, the Regional Court dismissed it and referred it to the Munich Court of
Appeal.
19. On 9 May 2012, the notebook computer with the copied data was
deposited ready for examination during regular visiting hours (from
Monday to Friday, from 8.00 to 11.00 and from 13.00 to 16.00) on the
premises of the prison the applicant was detained in. The applicant’s lawyer
however never made use of the possibility to examine the files on the
premises of the prison – he rather arranged for their examination on the
premises of the criminal police (see paragraphs 11 et seq., 15 above and 28
below).
20. On 25 May 2012 the Munich Court of Appeal dismissed the
remaining parts of the applicant’s appeal as ill-founded. The court, which
referred to prior submissions of the prosecution and the prior decisions of
the Regional Court in that matter, held that there was no reason to provide
the defence with copies of all the records obtained from telecommunication
surveillance in excess of the access already granted. Moreover, while
understandable that, from the point of view of the defence, a list showing
the details of the respective conversations would enable relevant
conversations to be identified and listened to faster, there was no entitlement
to such a list being prepared.
the Bavarian Criminal Police headquarters, and the files would be copied
once a suitable storage device had been supplied.
25. On 9 May 2012 the applicant’s lawyer provided a hard disc to the
police. The same day, he was also informed that a special
forensic-data-analysis program was needed to read the data, since they had
been entered into such a program and were not available in their original
format anymore (see paragraph 8 above); he was furthermore supplied with
the contact details of a company which provided such software. On 18 May
2012 the disc holding the files was ready for collection and on 22 May 2012
it was collected by the defence.
26. On 22 May 2012, after having realized that the special
forensic-data-analysis program cost EUR 4,031.72 (see paragraph 8 above),
the applicant’s lawyer applied to the Regional Court to have the prosecution
authorities ordered to either acquire and provide the licence for the software
or to have the state bear the cost of EUR 4,031.72 needed to purchase the
software.
C. Hearings
27. From 6 June 2012 until 21 December 2012 the Augsburg Regional
Court conducted hearings on twenty-two separate days.
authorities should not acquire a software licence and that the cost of
EUR 4,031.72 should not be borne by the state. It held that the program was
available on the open market and that it was not the responsibility of the
court to provide the applicant’s lawyer with the technical equipment to have
access to files or examine evidence. That might, where necessary, only be
different, under the principles of the right to a fair trial and the principle of
equality of arms, if the defence had otherwise incurred disproportionate
expenses, the technical equipment had been unobtainable or the defendant
could not advance the cost. This was not the case here. The applicant was
able to afford three lawyers for his defence team. It could therefore be
assumed that the applicant had at his disposal the necessary financial means
to buy a software licence.
33. On 19 July 2012 the applicant’s lawyer asked to be provided with
the data in “unencrypted form”. On 23 July 2012 the public prosecutor’s
office informed the defence that it was indeed possible to export the
electronic files from the special forensic-data-analysis program and convert
them back into an image format, readable with a software available free of
charge online (see paragraph 8 above). If the defence wished to receive the
data in this format and were to provide hard discs, it would be provided with
it. On 31 July 2012 applicant’s lawyer delivered two hard discs to the
police, which were sent on to the responsible officer the following day. On
4 September 2012 the two hard discs, containing the data as image files,
readable with a software available free of charge online, were given to the
applicant’s lawyer.
D. Judgment
35. On 21 December 2012 the Regional Court rendered its judgment and
convicted the applicant and four other accused. The applicant was convicted
on sixty-three counts of taking bribes in commercial practice and sentenced
to five years and three months’ imprisonment. On the remainder of the
charges he was acquitted.
E. Appeal proceedings
36. The applicant appealed against the judgment to the Federal Court of
Justice. He argued, inter alia, that his defence had been harmed by the
refusal to grant a stay of the proceedings because he and his lawyer had not
had enough time and opportunities to review the files of the
telecommunication surveillance and the seized electronic data.
37. On 11 February 2014 the Federal Court of Justice quashed the
Regional Court’s judgment in respect of three counts of bribery in
commercial practice, but dismissed the applicant’s further appeal as
ill-founded.
F. Constitutional Complaint
G. Subsequent events
taken in the civil proceedings had also been taken in the criminal
proceedings, no new evidence was available. On 11 April 2018 the
applicant appealed against that decision. No information on the progress of
those proceedings has been provided to the Court.
44. The defence lawyer’s right of access to the case file is governed by
section 147 of the Code of Criminal Procedure, which reads:
Section 147 - Examination of files
“(1) Defence counsel shall have authority to examine those files which are available
to the court or which will have to be submitted to the court if charges are preferred, as
well as to examine officially impounded pieces of evidence.
(2) If investigations have not yet been designated as concluded on the file, defence
counsel may be refused permission to examine the files or individual parts of the files,
as well as examination of officially impounded pieces of evidence, in so far as this
may endanger the purpose of the investigation. If the prerequisites of the first sentence
have been fulfilled, and if the accused is in remand detention or if, in the case of
arrest, this has been requested, information of relevance for the assessment of the
lawfulness of such deprivation of liberty shall be made available to defence counsel in
a suitable form; to this extent, as a rule, examination of the files shall be granted.
(3) At no stage of the proceedings may defence counsel be refused access to records
concerning the examination of the accused or concerning such judicial acts of
investigation to which defence counsel was or should have been given access, nor
may he or she be refused access to expert opinions.
(4) Upon application, defence counsel shall be permitted to take the files, with the
exception of pieces of evidence, to his or her office or to his or her private premises
for examination, unless significant grounds present an obstacle thereto. The decision
shall not be contestable.
(5) The public prosecutor’s office shall decide whether to grant examination of the
files in preparatory proceedings and after the final conclusion of the proceedings; in
other cases the presiding judge of the court seized of the case shall be competent to
decide. If the public prosecutor’s office refuses to allow examination of the files after
noting the termination of the investigations in the file, or if it refuses to allow
examination under subsection (3), or if the accused is not at liberty, a decision by the
court competent under section 162 may be applied for. Sections 297 to 300, 302, 306
to 309, 311a and 473a shall apply, mutatis mutandis. These decisions shall be given
without reasons if their disclosure might endanger the purpose of the investigation.
(6) If the reason for refusing access to the files has not already ceased to pertain, the
public prosecution office shall revoke the order no later than upon conclusion of the
investigation. Defence counsel shall be notified as soon as he or she once again has
the unrestricted right to examine the files.
(7) Where an accused has no defence counsel, information and copies from the files
shall be given to the accused upon his or her application, provided that this is
necessary for an adequate defence, cannot endanger the purpose of the investigation,
also in another criminal proceeding, and that overriding interests of third persons
ROOK v. GERMANY JUDGMENT 11
meriting protection do not present an obstacle thereto. Subsection (2), first part of the
second sentence, subsection (5) and section 477(5) shall apply, mutatis mutandis.”
THE LAW
A. Admissibility
47. The Court notes that the application is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
that only one of the three lawyers had made use of the possibility to access
the data.
53. It had, moreover, not been necessary to enable the defence to listen
to and read each and every file; rather, it had been sufficient to allow for the
possibility to identify relevant and irrelevant files on the basis of search
parameters, such as the telephone from which a call had been made or a
telephone to which a call had been made within a certain frame of time. In
this connection, it also had to be taken into account that the applicant, who
had been involved in the events being examined at trial, had all the
necessary knowledge to identify the telephone conversations with possible
relevance to the defence.
54. The Government was furthermore of the opinion that the fact that the
telecommunication-surveillance data had not all been copied and handed
over to the applicant’s lawyer had not violated the Convention. That
interference with the applicant’s rights had been justified, for it had served
the protection of the rights of the third persons concerned. In view of
roughly 45,000 covertly recorded telephone conversations, it had been
rather probable that private, even intimate conversations without any
relation to the events under examination had also been captured. There had
been a statutory obligation to not listen to those (parts of the) recorded
conversations. During examination of the conversations by the lawyer
and/or the applicant this obligation had been enforced by the presence of a
supervising police officer, who had also been present in order to support the
applicant’s lawyer with questions regarding the analysis of the data. Had the
data been handed over to the applicant’s lawyer, that obligation could not
have been fulfilled anymore.
the file were essentially unrestricted. Therefore, the Court considers that the
applicant’s lawyer had the possibility to acquaint himself with the
investigation file, regardless of the specific numbers of pages and volumes
of that file. This is all the more true as the applicant had two other lawyers,
who, according to the submissions of the parties, never requested access to
the investigation file. The possibilities of contact between the lawyer and
the detained applicant in order to prepare the defence were also not unduly
restricted. The Court therefore considers that there were sufficient
possibilities for the applicant’s lawyer to discuss the investigation file in
detail with him, in order to effectively prepare the defence.
63. Moreover, the Court observes that the indeed enormous amount of
telecommunication-surveillance data and electronic files produced and
collected during the investigation were only to a minor extent included in
the paper file. As they were considered irrelevant to the charges by the
police and/or the prosecution, they were in fact kept in storage on police
computers. In this connection, the Court further observes that the
prosecution and the courts were, in acquainting themselves with the case,
also essentially confined to the investigation file and the evidence later
produced in the hearing. They did make use of neither the entirety nor a
single one of those other files and subsequently based neither the applicant’s
indictment nor his conviction on them. Against this background, the time
afforded to allow the defence to acquaint itself with the relatively extensive
results of the investigation was sufficient.
64. In view of this, the Court finds that in the circumstances of the case
the applicant and his lawyer were granted sufficient access to the file in
order to allow for preparation for the applicant’s trial.
(ii) Disclosure of the telecommunication-surveillance data
65. The Court observes that the prosecution and the domestic courts,
without having required the applicant to provide specific reasons for his
application, decided to allow for disclosure of the entirety of the
telecommunication-surveillance data only a few days after he had applied
for it (see paragraph 11 above). The Court furthermore notes that,
subsequently, although the authorities did not provide the applicant’s lawyer
with a copy of the telecommunication-surveillance data, he was allowed to
examine that data initially in the police premises upon appointment during
regular opening hours and on the presence of a police officer, and, as of
9 May 2012 additionally upon appointment during regular opening hours on
the prison premises together with the applicant, also in the presence of a
police officer (see paragraph 19 above). Moreover, even if the Court does
not consider it necessary for the applicant to explain his defence strategy,
the Court observes that the applicant has, neither in the domestic
proceedings nor before the Court, specified in what particular manner the
invoked restrictions had interfered with his opportunity to defend himself.
ROOK v. GERMANY JUDGMENT 17
Court moreover notes that only in July 2012, the defence asked to be
provided with a copy in a format readable with freely available software, a
request to which the authorities agreed on short notice (see paragraph 33
above). The applicant’s lawyer provided two hard discs at the end of July
2012, and the data was provided on 4 September 2012 (see paragraph 33
above). Moreover, even if the Court does not consider it necessary for the
applicant to explain his defence strategy, the Court observes that the
applicant has, neither in the domestic proceedings nor before the Court,
specified in what particular manner the invoked restrictions had interfered
with his opportunity to defend himself.
71. As to the complaint that the applicant’s lawyer was not given
sufficient opportunities to acquaint himself with the entirety of the files, the
Court considers that the access was, for the reasons stated above (see
paragraph 67 above), sufficient in principle to allow an effective
opportunity for the applicant’s lawyer to analyse the electronic files in order
to identify those which he considered to be of relevance.
72. As to the complaint that applicant’s lawyer had indeed not been
given sufficient opportunity to identify the relevant files, the Court
observes, that the exact nature of the 14 million electronic files, which
stemmed from the seizure of a range of storage media, cannot be taken from
the submissions of the parties. Their nature must, however, have allowed for
an initial identification of files with potential relevance to the criminal
proceedings, allowing already for a substantial reduction of the files to be
actually looked at. Moreover, the electronic files must have stemmed from
different people – amongst them also the applicant, giving him the best
knowledge of their content – and from over a long period of time, allowing
for further reduction of the search parameters. The Court therefore considers
it to have been sufficient that the applicant’s lawyer, who could have been
expected to arrange for at least some shift in the emphasis of his work
(Mattick, cited above, with further references), had at least from
4 September 2012, the day on which he was provided a full copy readable
with software available free of charge, to 21 December 2012, the day
judgment was rendered, which amounts to three and a half months – that is
to say sufficient time – to analyse the electronic files in order to identify
those which he considered to be of relevance.
73. Even assuming the applicant’s lawyer had only been able to acquaint
himself with the files from 4 September 2012, the mere fact that the court
proceedings had already begun does not render the preparatory time
insufficient. The Court has already held that Article 6 § 3 (b) of the
Convention does not require the preparation of a trial lasting over a certain
period of time to be completed before the first hearing. The question rather
is whether the amount of time actually available before the end of the
hearing was sufficient (Mattick, cited above).
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