CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 juillet 1964

.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 Parties may be summarised as follows:   The Applicant is a German citizen, born in 1938 and at present detained   in prison at A. He complains of the duration of his detention on remand (Untersuchungshaft). The periods of this detention have been as follows:   1. In a criminal case before the District Court (Amtsgericht) of A., the Applicant was in detention on remand from November until December 1962. On this day the District Court acquitted him of the charges of procuring and living on a prostitute's earnings and the warrant for his arrest (Haftbefehl) in criminal case ... was rescinded.   2. Since December 1962, the Applicant has been in detention on remand in a second criminal case pending before the Regional Court (Landgericht) at A and the Federal Court (Bundesgerichtshof). In January 1964 he was convicted and sentenced by the Regional Court and his appeal (Revision) is pending before the Federal Court. The Applicant's detention on remand in this case was interrupted during March and from September to November 1963, in order that he should serve prison sentences in other cases.   The details of the lengthy proceedings in the second criminal case are as follows:   The files with the indictment were received by the Regional Court in 1963. In June, the Court gave judgment on an appeal against detention (Haftbeschwerde) by the co-defendant Z and decided to hear 31 witnesses on commission. For the purposes of this hearing, the District Court produced copies from the files. Following the return of the files, the Regional Court, in July 1963, opened the main proceedings (Eröffnung des Hauptverfahrens) against the Applicant and others.   In July the Office of the Public Prosecutor (Staatsanwaltschaft) at A issued summonses to the main hearing (Hauptverhandlung). After receipt of the Minutes of the hearing of witnesses on commission and of a consultative opinion on the defendant Z, the Public Prosecutor's Office returned the files to the Regional Court in August 1963.   In accordance with Article 81 of the Code of Criminal Procedure (Strafprozessordnung), the Court ordered in August that Z should be committed to a lunatic asylum for observation. In August the Office of the Public Prosecutor sent the files to the Provincial Hospital (Landeskrankenhaus) at B for an opinion on Z. After a telephone call asking for the files to be sent back, the Court in September 1963 rejected the Applicant's petition of September for release from detention on remand, and in September the files were again sent to the Provincial Hospital which had expressly asked for them. The files did not return to the Court until September 1963, with the opinion of the Provincial Hospital on Z.   In the meanwhile - in June, and July - the Applicant's defence counsel had applied in writing to receive the files for inspection and, at the beginning of September 1963, she also asked orally at the Registry (Geschäftsstelle) of the Court to be allowed to inspect them. However, she did not receive the files until the end of September when they returned from the Provincial Hospital and, therefore, she applied for adjournment in the main hearing in October 1963. The Regional Court thereupon detached the proceedings against the Applicant and Z from the main proceedings which were continued in respect of the other defendants.   In October, the Applicant lodged with the Regional Court an appeal (Beschwerde) against the above-mentioned decision of September 1963 by which the Court had rejected his petition for release from detention on remand. Shortly afterwards, his counsel lodged with the Regional Court an appeal dated October 1963 against the warrant for arrest issued in this case by the District Court in December 1962, pleading as a new ground that the Applicant was no longer fit to remain in detention for reasons of health. As already mentioned, at that time - namely from September to November 1963 - the Applicant was in penal confinement in the interval of detention on remand.   The Regional Court considered the Applicant's appeal of October to have been superseded by his counsel's appeal of October and, consequently, did not immediately submit it to the Court of Appeal (Oberlandesgericht) at C. Instead, the Regional Court, in November 1963 requested from the prison physician an opinion on the Applicant's fitness to remain in detention. Following receipt of the doctor's opinion in November, the Court, in November 1963, dismissed the appeal against detention lodged by the Applicant's counsel, rejecting her allegations that the Applicant's detention on remand was no longer necessary and that, for reasons of health, he was unfit for further detention.   In December the Applicant referred to the Federal Constitutional Court (Bundesverfassungsgericht) but, by a letter of December 1963 from the Registrar (Präsidialrat) of the Court, he was informed that his petition had not been registered as a constitutional appeal (Verfassungsbeschwerde) on the ground that he had apparently failed to seize the Court of Appeal and that, consequently, a constitutional appeal would have been inadmissible.   Thereupon the Applicant lodged with the Regional Court a further appeal (weitere Beschwerde) dated December against the Court's decision of November 1963 by which the appeal against detention introduced by his counsel had been dismissed. In December 1963 the Regional Court decided not to allow this further appeal, which was consequently submitted, in accordance with Article 306, paragraph (2) of the Code of Criminal Procedure (Strafprozessordnung), to the Court of Appeal was declared inadmissible by the Federal Constitutional Court in February 1964 on the ground that it was manifestly ill-founded.   In the meanwhile, in January 1964, the Applicant had finally been convicted by the Regional Court on fifteen counts of charges of aggravated larceny and further charges of conspiracy to commit a felony under Article 49 of the Penal Code (Strafgesetzbuch). He was sentenced to six years' penal servitude (including his detention on remand) with loss of civic rights for five years, police supervision being authorised and his driving licence being suspended for five years, in accordance with Article 42 of the Penal Code. His appeal (Revision) in this case with the Federal Court.   In February 1964 the Applicant was also convicted and sentenced in criminal case ... As already mentioned, he had been in detention on remand in this case from November until December 1962 when he was acquitted by the District Court of the charges of procuring and living on a prostitute's earnings. The Office of the Public Prosecutor, however, lodged an appeal (Berufung) with the Regional Court which, in February 1963, reversed the decision of the District Court and sentenced the Applicant to two years' imprisonment for aggravated offenses of procuring. On further appeal (Revision) by the Applicant, the Court of Appeal, at a date not indicated by the Parties, quashed the judgment of the Regional Court and ordered that a new trial be held before that Court. In February 1964 the Regional Court again aggravated offenses of procuring. His appeal (Revision) from this decision is pending with the Court of Appeal.   Submissions of the Parties   The Applicant alleges violations of Article 5, paragraphs (3) and (4) of the Convention. He claims his immediate release from detention.   The Respondent Government is of the opinion that the Applicant's rights under Article 5 have not been infringed as there was no undue delay in the proceedings complained of. It also points out that the judgment of January 1964 in criminal case ... by which the Applicant was sentenced to six years' penal servitude, made full allowance for his detention on remand in that case.   THE LAW   Whereas the Applicant complains that Article 5, paragraph (4) (Art. 5-4) of the Convention was violated in his case; whereas, under this provision, everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful; whereas the Applicant was arrested in November 1962; whereas, however, it does not appear that he availed himself of his right, in accordance with the relevant provisions of German domestic law, to take proceedings within the meaning of Article 5, paragraph (4) (Art. 5-4) of the Convention, before September 1963, the date when he lodged with the Regional Court a petition for release from detention, whereas it follows that, until that date, no violation of Article 5, paragraph (4) (Art. 5-4) has occurred;   Whereas the Applicant's petition of September for release was rejected by the Regional Court in September 1963;   whereas, thereby, it was "decided speedily by a court", in accordance with Article 5, paragraph (4) (Art. 5-4),   Whereas it is true that the Applicant's appeal of October against the decision of September 1963 was not immediately submitted by the Regional Court to the Court of Appeal; whereas, however, the Applicant was not in detention on remand at that time but serving a prison sentence resulting from his conviction in another case which had acquired the force of res judicata; whereas, furthermore, the Regional Court considered his appeal of October to be superseded by the appeal lodged in October 1963 by his counsel which contained new arguments; whereas the Court did not thereby prejudice any rights of the Applicant under the Convention; and whereas, on the second day following the end of the Applicant's imprisonment, and after recommencement of his detention on remand in November 1963, the Regional Court took action on his appeals against detention and, in November 1963, opened enquiries into the fitness of the Applicant to remain in detention; whereas, following the receipt of the doctor's opinion in November, the Court in November 1963 dismissed the appeal lodged by the Applicant's counsel; whereas, moreover, the Regional Court decided in December 1963 not to allow the Applicant's further appeal of December against this decision; whereas this appeal, which was consequently referred to the Court of Appeal, was dismissed in January 1964; and whereas the Applicant's subsequent constitutional appeal was declared inadmissible by the Federal Constitutional Court in February 1964; whereas, in conclusion, the Commission finds that these proceedings do not disclose any appearance of a violation of Article 5, paragraph (4) (Art. 5-4) of the Convention; whereas it follows that this part of the Application is manifestly ill-founded and must be rejected in accordance with Article 27, paragraph (2) (Art. 27-2) of the Convention;   Whereas the Applicant also complains that Article 5, paragraph (3) (Art. 5-3) of the Convention was violated in his case;   Whereas, under this provision, everyone arrested or detained in accordance with paragraph (1), sub-paragraph (c) of Article 5 (Art. 5-1-c), shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial;   Whereas the Applicant, who was arrested and obtained in accordance with Article 5, paragraph (1), sub-paragraph (c) (Art. 5-1-c) does not dispute that he was brought promptly before a judge;   whereas, however, the question arise whether he was tried "within a reasonable time" having been in detention on remand in criminal case ... for about one year until he was convicted and sentenced in January 1964;   Whereas the Commission has held on several occasions that the question whether a period of detention pending trial is reasonable or not cannot be decided in abstracto but must be considered in the light of the particular circumstances of each case (see Applications Nos. 892/60 and 920/60, Yearbook of the European Convention on Human Rights, Volume 4, pages 240 [252], and Collection of Decisions of the Commission, Volume 8 pages 46 [48]; whereas, in the present case, allowance must be made in particular for the large number of offenses imputed to the Applicant, which could not fail to affect the time required to conduct a preliminary investigation of his case; whereas it is also to be taken into account that the investigations involved other persons who were accused together with the Applicant; whereas, in particular, the medical observation and examination of the co-defendant Z as to his criminal responsibility delayed the proceedings against the Applicant and Z were detached from the main proceedings and the Applicant was tried at a later date; whereas, finally, between September 1963 and his conviction and sentence in January 1964, the Applicant made various appeals which, whilst they left the reasons for his continued detention on remand under the constant control of the German judicial authorities, inevitably delayed further the delivery of a verdict; whereas, in conclusion, an examination of the case does not reveal that the detention of the Applicant was unduly prolonged; whereas, consequently, it does not disclose any appearance of a violation of Article 5, paragraph (3) (Art. 5-3) of the Convention; whereas it follows that the remainder of the Application is 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.