CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 décembre 1961

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts presented by the Applicant may be summarised as follows:   The Applicant is a German citizen, born in ... and now living in A.   On ... he was arrested at A. on a charge of having participated as an SS-Obersturmführer in mass executions of Jews at B. (Soviet Union) in 1942- 43. He was later released but re-arrested on ... 1960. The Applicant does not deny that he took part in the extermination programme carried out by the SS, but alleges that he did so under compulsion. He states that he was always been against the persecution of Jews because to him "the dignity of man is sacred" but, that on protesting to his superiors, he was informed that if he refused to participate he would be executed himself; subsequently he had no longer acted of his own free will but was a mere "tool" of his superior officers. The Applicant invokes Article 47 of the Military Code according to which a subordinate soldier cannot be made liable for acts performed in the course of following orders. Finally, he claims that the charges against him are, in any event, barred by time.   The Applicant appealed against his arrest but this appeal was rejected on ... 1960. On ... 1960 he requested an immediate oral hearing of his case and, this request having also been refused, he petitioned on ... and ... 1960 to the Public Prosecutor for his release pending trial. These petitions were refused on ... and ... 1960 respectively. A similar request made on ... 1960 was rejected by the District Court (Amtsgericht) of C. on ... 1960.   On ... 1960 the Applicant renewed his request for an immediate trial, but this was rejected by the District Court of C. on ... 1960. He subsequently appealed to the Regional Court (Landgericht) of C. which on ... 1960 upheld the decision of the lower court. The Court stressed that "blind obedience does not protect a person from answering to crimes", that it was to be feared that the Applicant might flee to countries which usually did not extradite war criminals, that the threat to the Applicant's own life had not been invoked by him at his first arrest and that similar arguments had not been advanced by any of the persons charged with him. This decision was upheld by the Regional Court of Appeal (Oberlandesgericht) of C. on ... 1960. On ... 1960 the Applicant had petitioned the Parliament of (the Land of D.) for his release but this petition was rejected on ... 1961. A similar request to the Public Prosecutor of ... 1961 was rejected on ... 1961.   On ... 1961 the Applicant for the third time made a request for an immediate trial, relying on this occasion on the Convention of Human Rights. The District Court of C., on ... 1961, ordered him to be released pending trial on finding bail of 12,000 DM, but on the same day, on appeal, the Regional Court of C. reversed this order. On ... 1961 the latter court confirmed this decision by holding that the continued detention of the Applicant did not violate Article 5, paragraph (3) of the Convention on the ground that this Article was to be interpreted in the light of the special circumstances of his case; investigations against more than 10 persons had to be carried out almost 20 years' after the crimes concerned had been committed and no reliable witnesses had apparently survived. The Court also emphasised the atrocious character of the crimes. An appeal by the Applicant of ... 1961 was rejected by the Regional Court of Appeal on ... 1961.   The indictment was drawn up on ... 1961 and on ... 1961 the Court commenced its preliminary examination of the case.   Both on ... 1961 and on ... 1961 the District Court of C. decided again that the Applicant could not be released as there was a risk that he might flee the country, and it prolonged his detention until ... 1962. The Applicant claims damages of 500,000 DM to compensate him for loss of honour, loss of income, for the distress caused to his family and for the nervous depression from which he suffers as a result of his detention. He states that he is merely a scapegoat and that the persons responsible for the atrocities of the third Reich are the Western democracies and the politicians of the Weimar Republic who, by their stupidity, lack of moral integrity and lack of courage, paved the way for Hitler's assumption of power.   Whereas the Applicant alleges violations of Article 5 of the Convention;   THE LAW   Whereas Article 5, paragraph (3) (Art. 5-3) provides that "Everybody arrested of detained in accordance with the provisions of paragraph (1) (c) (Art. 5-1-c) of this Article ... shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial";   Whereas in order to decide whether the refusal by the German courts to release the Applicant was a violation of Article 5, paragraph (3) (Art. 5-3) of the Convention, it must first be decided whether or not a delay, which is already one of 19 months, in bringing the Applicant to trial may be considered reasonable within the meaning of Article 5, paragraph (3) (Art. 5-3);   Whereas, in respect of this preliminary issue, it is to be pointed out, as has already been held by the Commission in its decision on the admissibility of Application No. 892/60 (Y. against the Federal Republic of Germany) (1) that the question whether a period of detention pending trial is reasonable or not is not a question to be decided in abstracto but to be considered in the light of the particular circumstances of each case; whereas, in the present case, the crimes with which the Applicant is charged were committed 18 years' ago and the circumstances of their perpetration render a conscientious and proper investigation on the part of the German police exceedingly complicated; ---------------------------------------------------- (1) See Volume VI of this Collection, pages 23 - 24.   ----------------------------------------------------   Whereas such investigation must necessarily extend over a longer period than might be considered in an ordinary case to be reasonable within the meaning of Article 5 (Art. 5) of the Convention;   Whereas it is further to be taken into account that the proceedings involve other persons than the Applicant as they concern, in general, the responsibility under present German law of a number of individuals who had actively participated in the extermination programme initiated under the Nazi regime against persons of Jewish origin and carried out by the SS, of which the Applicant was admittedly a member; whereas it was required to prepare under unusual and special circumstances a trial on a large scale in order properly to determine not only the question of the Applicant's guilt, but also the extent to which the guilt of others might be taken into account in estimating the degree of the Applicant's responsibility;   Whereas the crimes imputed to the Applicant formed merely a part of the large-scale crimes committed by the SS in the German-controlled territories in Eastern Europe in 1941 - 1945; whereas, consequently, the participation of the Applicant in the mass exterminations at B. in 1942 - 1943 cannot be properly assessed in isolation but must be seen in its full perspective, which can only be obtained by a trial involving all those who participated in the crimes concerned; and whereas in the light of all the above exceptional circumstances, the Commission does not feel called upon to hold that the delay in bringing the Applicant to trial, although prolonged, must be unreasonable; Whereas in regard to the principal issue, namely the refusal by the German Courts to release the Applicant pending his trial, it is true that Article 5, paragraph (3) (Art. 5-3), would entitle the Applicant to claim his release if his trial did not take place within a reasonable time;   Whereas the Commission has already held that in the circumstances of the present case a delay of 19 months is not unreasonable; and whereas it follows that the failure to release the Applicant does not constitute a violation of the provisions of the Convention;   Whereas accordingly the complaints made by the Applicant in regard to his detention are manifestly ill-founded and must be rejected in accordance with Article 27, paragraph (2) (Art. 27-2) of the Convention;   Now therefore the Commission declares this Application INADMISSIBLE."