CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 avril 1967

.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 national, born in 1940 and at present detained in prison at Hannover.   From his statements and from the documents submitted by him it appears that on .. September, 1965 he was arrested on suspicion of having committed robbery and aggravated theft. On .. June, 1966 he was convicted on the charges of theft by the Regional Court (Landgericht) at Hannover and sentenced to 8 months' imprisonment. The Court considered that he had served this sentence by virtue of the period of his imprisonment on remand since .. September, 1965.   The Applicant was not released from prison, however, as the charges against him of robbery had been separated from the charges of severe theft in the trial of .. June, 1966 on the ground that the person injured by the alleged robbery, a Spaniard, had moved to Spain and was not likely to return in the near future to give evidence of the offence committed against him. The Applicant is still awaiting trial on the former charges.   On .. June, 1966 the Applicant appealed to the Regional Court at Hannover seeking his release from prison (Haftbeschwerde). On .. July, 1966 this court rejected the appeal on the grounds that there was sufficient evidence before the investigating judge of the Applicant's guilt and that the danger that the Applicant might flee (Fluchtgefahr) still persisted. There was also a probability that the Applicant might be committed to an insane asylum. The Court further stated that he could not successfully assert an excessive detention on remand, as 8 months of his detention hitherto existing were counted towards his sentence. Thus, there was also no necessity ex officio to present his case to the Court of Appeal for a decision according to Sections 121, 122 of the Code of Criminal Procedure (Strafprozessordnung) regarding the continuation of his detention on remand as, after deduction of the period counted towards his sentence, the 6 months' limit had not been exceeded.   In pursuance of this request the Applicant informed the Commission that he lodged a further request with the Regional Court (Landgericht) at Hannover to have the lawfulness of his detention examined (Haftprüfung). This was rejected on .. September, 1966. The Court stated that there was considerable burdening evidence given by his alleged accomplices and that the danger of flight (Fluchtgefahr) continued to exist. In particular, the latter was not put aside by virtue of the fact that he was offered employment on a dairy farm.   On .. September, 1966 the Applicant addressed a letter to the Public Prosecutor (Staatsanwalt) at Hannover alleging his innocence of the robbery charge. He requested to be heard as a witness to this effect. By letter of .. October, 1966 the Public Prosecutor replied that being an accused he could not be heard as a witness to his own cause.   It further appears that, on .. November, 1966, the Applicant lodged a request with the Presiding Judge of the First Criminal Chamber of the Regional Court to fix a date for his trial. The Judge replied by letter of .. November, 1966 that there could not be any trial until the victim of the robbery had been examined in Spain and the Court was in possession of the protocol concerning this examination.   From this statements and from documents submitted by the Applicant it appears that, on .. November, 1966, the Regional Court (Landgericht) in Hannover rejected his further application for conditional release (Haftverschonung). On .. December, 1966 the Applicant appealed (Beschwerde) against this decision to the Attorney General (Generalstaatsanwalt) at Celle who apparently referred the matter to the Court of Appeal (Oberlandesgericht) at Celle. On .. December, 1966 this Court decided that the Applicant's detention on remand should continue. The Court explained that its present decision was not an examination of the lawfulness of the Applicant's detention in accordance with Section 122, paragraph 4, of the Code of Criminal Procedure (ex officio examination after each 3 months' detention on remand), but a new examination in accordance with Section 121 of the Code of Criminal Procedure calling for a first such examination within 6 months' detention. The Court reasoned, as had done the Regional Court before, that the 6 months' period had not started to run until .. June, 1966, the date of the Applicant's conviction and sentence for aggravated theft.   The Court held that the reasons for the Applicant's detention on remand still persisted and that he could be expected under the circumstances to accept the delay arising from the necessity to have a witness for the prosecution examined in Spain.   The Applicant has not lodged a constitutional appeal (Verfassungsbeschwerde) with the Federal Constitutional Court (Bundesverfassungsgericht). Upon the Secretariat's request for information whether he had done so, he replied that it probably would have been rejected as being inadmissible and would have caused a still greater delay of the proceedings against him.   However, by letters of 16th and 28th February, 1967 the Applicant informed the Commission that, in the meanwhile, he was convicted (presumably by the Regional Court at Hannover on the charge of robbery which had been separated from the charge of aggravated theft in the trial of .. June, 1966) and sentenced to 4 1/2 years' imprisonment. He does not indicate the date on which this decision was taken but states that he appealed (Revision) against the judgment to the Federal Court.   The Applicant complains that in view of the fact that he did not commit the alleged offenses, he was wrongly arrested and held in prison.   Without referring to any specific articles he alleges generally a violation of the Convention.   THE LAW   Whereas, in respect of the Applicant's complaints relating to the length of his detention on remand, the Commission has had regard to the fact that, on .. June, 1966, the Applicant was convicted for aggravated theft and that his detention on remand from .. September, 1965, up to that date was taken into account in fixing his sentence;   Whereas therefore, as from .. June, 1966, a new period of detention pending trial commenced, in respect of the charge preferred against him for robbery; whereas it appears that, on or about .. February, 1967, the Applicant was convicted on that charge and that the decision on appeal is still pending; whereas, consequently, an examination of the case as it has been submitted, including an examination made ex officio, does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention and in particular in Article 5 (Art. 5); whereas it follows that the Application is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27- 2), of the Convention.   Now therefore the Commission declares this Application inadmissible.