Electronic files with millions of data in a criminal trial and fair trial. Sufficient access to information and preparation time for the defendant’s lawyer.

JUDGMENT 

Rook v. Germany 25.07.2019 (no. 1586/15)

see here

SUMMARY 

File case with electronic records with millions of data in criminal proceedings. Information of the accused and copies of the data. The case concerned the fairness of criminal proceedings where around 80,000 items of
telecommunication surveillance data had been produced and 14 million electronic files seized.
The Court found in particular that the defence had had sufficient access to the file and sufficient
time to acquaint itself with the telecommunication surveillance data and the electronic files to
prepare for the trial. The proceedings, considered as a whole, had therefore been fair.

PROVISIONS 

Article 6 § 1

Article 6 § 3 (b)

PRINCIPAL FACTS

The applicant, Michael Rook, is a German national who was born in 1964 and lives in Quickborn
(Germany). He was a senior manager and, most recently, managing director of a major retailer for
consumer electronics in Germany and other European countries.

In February 2011 the Augsburg public prosecutor’s office opened a criminal investigation against Mr
Rook for taking bribes in commercial activity. In November 2011 he was taken into detention on
remand. 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. During
searches of Mr Rook’s home and of other premises some 14 million electronic files stored on data
devices were seized.

The data were analysed by the police; around 1,100 of the electronic files and transcripts of 28
telephone conversations were considered as relevant to the case and were printed and included in
the paper files. In November 2011 Mr Rook’s lawyer was provided access to the paper investigation
file. In November 2011 the lawyer asked to examine the audio files obtained. The public prosecutor’s
office decided to grant access and informed him that he could examine the data on the premises of
the criminal police.

In February 2012 the public prosecutor’s office indicted Mr Rook before the Regional Court on 91
counts of taking bribes in commercial activity. In March 2012 Mr Rook’s lawyer applied for access to
the audio files in the form of a copy on DVD or CD, but the application was rejected. On appeal, the
Regional Court ordered that all data sets were to be copied to a computer kept at the prison where
Mr Rook was detained, that the defence could listen to the audio files in prison, together with Mr
Rook. Shortly afterwards, the computer with the copied audio data was deposited ready for
examination in the prison.

In April 2012 Mr Rook’s lawyer applied to be provided a copy of the 14 million electronic files. In
May 2012 he was provided with a hard disc holding the electronic files in encrypted form. A special
program was needed to read the data. His subsequent application that the cost of this special
software should be borne by the state was rejected. After lodging a new request to be provided with
the data in unencrypted form, he received discs with the electronic files, readable with software
available free of charge online, in September 2012.

In December 2012 the Regional Court convicted him on 63 counts of taking bribes in commercial
activity and sentenced him to five years and three months’ imprisonment.

Mr Rook appealed, arguing in particular that his defence had been harmed because he and his
lawyer had not had enough time to review the files of the telecommunication surveillance and the
seized electronic data. In February 2014 the Federal Court of Justice quashed the Regional Court’s
judgment in respect of three counts of bribery in commercial activity, but dismissed Mr Rook’s
further appeal as ill-founded. In June 2014 the Federal Constitutional Court refused to admit his
constitutional complaint.

THE DECISION OF THE COURT…

Article 6 § 1 taken together with Article 6 § 3 (b)

(i) Access to the case file

The Court observed that throughout the proceedings the authorities had granted Mr Rook’s lawyer
access to the paper investigation file and had provided him with a comprehensive overview of the
accusations and evidence. They had also forwarded updates of that file at all times. Mr Rook had not
claimed that data, files or documents which formed part of that file were not transmitted to his
lawyer early enough in order to allow him to acquaint himself with them before or during the trial.
The Court considered further that there had been sufficient possibilities for Mr Rook’s lawyer to
discuss the investigation file in detail with him since the initial access to the paper file had been
granted in November 2011, while the trial had started in June 2012 and had lasted until December
2012. Over that time access to the file had essentially been unrestricted.

Moreover, the enormous amount of telecommunication data and electronic files collected during
the investigation had been included only to a minor extent in the paper file. As most of it had been
considered irrelevant to the charges by the investigation authorities, it had been kept in storage on
police computers. In that connection, the authorities had also essentially confined themselves to the
investigation file and the evidence later produced in the hearing, neither Mr Rook’s indictment nor
conviction had been based on the electronic files or data. Against that background the time afforded
to the defence to acquaint itself with the extensive results of the investigation had been sufficient.
Thus, the Court found that Mr Rook and his lawyer had been granted sufficient access to the file in
order to allow for preparation for the trial.
(

ii) Disclosure of the telecommunication surveillance data

The Court observed that the authorities had decided to allow for disclosure of the
telecommunication surveillance data in its entirety and that Mr Rook’s lawyer had had the possibility
to examine it initially in the police premises, and later on additionally in the prison. Moreover, Mr
Rook had never specified in what particular manner the restrictions in question had interfered with
his ability to defend himself. The Government’s argument that the data could not be examined
without a police officer present in order to protect the rights of those whose conversations might
have been recorded appeared reasonable.

The Court found furthermore that in view of the complexity of the criminal proceedings at issue it
had not been necessary to allow Mr Rook’s lawyer to read through and listen to each and every item
of the telecommunication data. Rather, it had been sufficient to give him an effective opportunity to
analyse it in order to identify what he considered to be of relevance. In that connection, the Court
was mindful of the fact that modern investigation methods might produce enormous amounts of
data whose integration into criminal proceedings should not cause unnecessary delays in cases.
Moreover, Mr Rook’s lawyer had only examined the data 22 times within the space of more than
one year, apparently never together with Mr Rook in prison. He had neither made use of the
possibility to have a judicial employee replace him nor had Mr Rook’s two other lawyers engaged in
the analysing, listening and reading exercise. Also, Mr Rook would have known best what specific
telecommunication data to look for. Therefore the authorities had provided the defence with an
effective opportunity to identify the relevant files. In view of this, the Court found that Mr Rook had
had sufficient time to acquaint himself with the telecommunication surveillance data.

(iii) Disclosure of the electronic files

The Court observed that Mr Rook’s lawyer could have accessed, but never had, the electronic files in
their entirety at the offices of the criminal police from the end of February 2012.

The Court considered it to be sufficient that he had had at least from September 2012, the day he
had been provided with an unencrypted CD, until December 2012, the delivery of the judgment,
amounting to three and a half months, to analyse the files to identify those which he considered
relevant. The mere fact that the court proceedings had already begun had not rendered the
preparatory time insufficient. The Court concluded that Mr Rook had had enough time to acquaint
himself with the electronic files.

Accordingly, there had been no violation of Article 6 § 1 taken together with Article 6 § 3 (b)(echrcaselaw.com).


ECHRCaseLaw

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