CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 décembre 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   A. Whereas the facts presented by the Parties and apparently not in dispute between them may be summarised as follows:   1. The Applicant is a German citizen, born in 1917 and at present detained in prison at Hagen in Westphalia. His Application concerns the length of his detention pending trial.   The Applicant was arrested on 5 May 1961, and has been detained since that date. The indictment against him dated 1 December 1965, contains several charges of murder committed in 1941/42 while he was serving as a member of the SS in the concentration camp of Gusen, a subsidiary of the Mauthausen camp. His trial opened before the Regional Court (Landgericht) of Hagen on 28 August 1967, and is expected to last until April 1968.   II. The development of the criminal proceedings against the Applicant has been as follows:   1. In 1961 an investigation was opened against him and several other persons by the Office of the Public Prosecutor (Staatsanwaltschaft) of Hamburg. This investigation concerned crimes allegedly committed at the concentration camp of Gusen.   2. The Applicant lived in Berlin at the time and, on 4 May 1961, the District Court (Amtsgericht) of Berlin Tiergarten issued a warrant for his arrest. He was arrested on 5 May 1961, and subsequently detained in the remand prison of Berlin-Moabit.   3. On 19 December 1961, the Hamburg Public Prosecutor's Office came to the conclusion that, in the Gusen case, the evidence against the suspected person who was residing in Hamburg was not sufficient and it decided to discontinue the criminal proceedings against that person. Under the German Code of Criminal Procedure (Strafprozessordnung), the Hamburg Office thereby ceased to be competent for the investigation against the other suspected persons, including the Applicant, as none of them was resident within the jurisdiction of the Regional Court of Hamburg.   4. On 9 January 1962, the Office of the Public Prosecutor of Hamburg transmitted the case-file to the Office of the Public Prosecutor of Berlin, requesting it to continue the investigation on the ground that the Applicant was domiciled and resident in Berlin. However, this was refused by the Berlin authorities.   5. Consideration was then given to having the case dealt with by the Public Prosecutor's Office of Flensburg, where another suspected person had his domicile.   6. Finally, the Public Prosecutor's Office of Hamburg sought a decision of the Federal Attorney-General (Generalbundesanwalt) under Article 143, paragraph (3), of the Judicature Act (Gerichtsverfassungsgesetz) which states as follows:   "Where the officials of Public Prosecutor's Offices of several LÄnder cannot agree on which of them has to persecute, the decision shall be taken by that official of the Public Prosecutor's Office who is their common superior, otherwise by the Federal Attorney-General."   ("Können die Beamten der Staatsanwaltschaft verschiedener Länder sich nicht darüber einigen, wer von ihnen die Verfolgung zu übernehmen hat, so entscheidet der ihnen gemeinsam vorgesetzte Beamte der Staatsanwaltschaft, sonst der Generalbundesanwalt.")   On 23 May 1962, the Federal Attorney-General decided that the Public Prosecutor's Office of Berlin should continue the case.   7. An appeal by the Applicant against his detention (Haftbeschwerde) was dismissed by the Regional Court of Berlin on 4 July 1962.   8. From a survey made by the Public Prosecutor's Office of Berlin on 1 August 1962, it appeared that, out of 154 persons originally under suspicion, 76 had already been eliminated as a result of the investigation carried out by the Public Prosecutor's Office of Hamburg, it having been established either that they were dead or that the evidence available would not be sufficient. With regard to other suspected persons it was found that they were domiciled and resident abroad.   9. During the course of its investigation the Berlin Public Prosecutor's Office separated from the remaining issues in the case the main charge against the Applicant and some other persons concerning the so-called "death baths" in the concentration camp of Gusen.   10. A new appeal by the Applicant against his continued detention was rejected by the Regional Court of Berlin on 13 December 1962. His further appeal (weitere Beschwerde) from this decision was dismissed by the Court of Appeal (Kammergericht) of Berlin on 27 February 1963.   11. In May 1963, it was found necessary by the Prosecution to try the Applicant together with other persons who were suspected of having been his accomplices in the "death baths" but who were not residing in Berlin. New transfer negotiations took place between the Public Prosecutor's Offices of Berlin, Flensburg and Cologne and, on 2 August 1963, the Federal Attorney-General decided that the Cologne office should continue the proceedings. The 2 officials who had been in charge of the case in the Berlin Public Prosecutor's Office were seconded to the Cologne Public Prosecutor's Office for 2 months in order to initiate the Prosecutor now dealing with it in the Cologne Office.   12. In the Public Prosecutor's Office of Cologne, the proceedings against the Applicant and his alleged accomplices were conducted by the "Central Office in the Land of North Rhine-Westphalia for Criminal Proceedings Concerning National Socialist Crimes Involving Numerous Victims in Concentration Camps" (Zentralstelle im Land Nordrhein-Westfalen für die Bearbeitung von nationsozialistischen Massenverbrechen in Konzentrationslagern). This Office had been set up under the Directing Chief Public Prosecutor (Leitender Oberstaatsanwalt) at the Regional Court of Cologne in accordance with Article 145, paragraph (1), of the Judicature Act which states as follows:   "The chief officials of Public Prosecutor's Offices at Courts of Appeal and Regional Courts may themselves discharge the duties of the Public Prosecutor's Office at all courts within their district or delegate such duties to another official as the official immediately responsible."   ("Die ersten Beamten der Staatsanwaltschaft bei den Oberlandesgerichten und den Landgerichten sind befugt, bei allen Gerichten ihres Bezirks die Amtsverrichtungen der Staatsanwaltschaft selbst zu übernehmen oder mit ihrer Wahrnehmung einen anderen als den zunächst zuständigen Beamten zu beauftragen.")   This provision is interpreted as giving corresponding powers to Land Ministers of Justice.   In his Order (Runderlass) of 21 October 1961, concerning the Central Office in Cologne, the Minister of Justice of North Rhine-Westphalia defined the object of the Office as follows: "In the interest of more rapid investigation and energetic prosecution of crimes involving numerous victims in National Socialist concentration camps, centralised handling of the relevant cases in North Rhine-Westphalia by the Public Prosecutor's Office is called for. On 1 November 1961 a central office to deal with criminal cases in the Land of North Rhine-Westphalia relating to such crimes will therefore be set up under the Directing Chief Public Prosecutor at the Regional Court of Cologne."   13. In April 1965, the Central Office of Cologne terminated its investigation of the "death baths" at Gusen concentration camp, 2 suspected accomplices of the Applicant having been arrested in November 1964.   14. On 10 May 1965, the Applicant was heard by a judge in pursuance of Article 178 of the Code of Criminal Procedure.   15. In a petition of 13 May 1965, requesting his conditional release, the Applicant referred to a decision given by the Regional Court of Cologne on 9 June 1964. In this decision the Court, relying on Article 5, paragraph (3), of the Convention, had ordered the release pending trial of 2 persons who, for almost 6 years, had been detained on remand on suspicion of having murdered prisoners, or having aided and abetted their murder, at the concentration camp of Mauthausen. The Court had held that detention pending trial "must be brought to an end if its continuance would break the prisoner's spirit, seriously undermine his will to defend himself and thus cause appreciable harm to his human dignity."   The Applicant's above petition was refused by the District Court of Berlin-Tiergarten on 2 June 1965.   16. On 24 June 1965, the investigation was formally closed by the Central Office of Cologne in accordance with Article 169 a of the Code of Criminal Procedure.   17. On 23 July 1965, the Court of Appeal of Berlin ordered the Applicant's continued detention.   18. At his request, the Applicant was finally heard on 12 October 1965 by the Public Prosecutor of the Cologne Central Office under Article 169 b of the Code of Criminal Procedure.   19. The indictment, a document of some 230 pages, was completed by the Central Office on 1 December and lodged with the Regional Court of Hagen in Westphalia on 10 December 1965. In the indictment the Applicant and 2 further accused were faced with several charges of murder. It was alleged that, between September 1941 and spring 1942, they had participated in the "death baths" at Gusen concentration camp where a great number of people had died after having been forced to remain under ice-cold shower-baths. The prosecution invoked as evidence, inter alia, the statements of 68 witnesses in Germany and 43 witnesses in other countries, mainly Poland.   20. On 26 January 1966, the Court of Appeal (Oberlandesgericht) of Hamm (Westphalia) decided that the Applicant's detention should continue.   21. At the Applicant's request, a preliminary judicial investigation (gerichtliche Voruntersuchung) was ordered by the Third Great Criminal Chamber of the Regional Court of Hagen on 23 February and opened by the investigating judge of the Court on 4 March 1966.   22. A new order for the Applicant's continued detention was made by the Court of Appeal of Hamm on 5 May 1966.   23. On 27 July 1966, the Regional Court of Hagen rejected the Applicant's request to separate the criminal proceedings against him from those against his co-accused. It also ordered his transfer from Berlin to Hagen.   24. On 12 August 1966, the Court of Appeal of Hamm decided that the Applicant's detention should continue.   25. On 1 September the Court of Appeal dismissed the Applicant's appeal (Beschwerde) from the Regional Court's decision of 27 July 1966 (mentioned in paragraph 22 above) and, on 7 September, the Applicant was transferred in a charter plane from Berlin to Hagen.   26. On 14 March 1967, the Federal Constitutional Court (Bundesverfassungsgericht) dismissed the Applicant's constitutional appeal (Verfassungsbeschwerde) from the Court of Appeal's decision of 12 August 1966 (mentioned in paragraph 23 above). Noting that the Applicant had been detained since 5 May 1961, the Federal Constitutional Court stated that a detention of this length could be considered as admissible only in very exceptional circumstances. It must be an extremely complex and difficult investigation of particularly serious offences; moreover, it must be shown that the authorities had done all they could in order to complete the investigation as soon as possible and to obtain a judgement on the charges against the detained person.   The Court found that these conditions were satisfied in the Applicant's case. The length of his detention was not out of all proportion to the gravity of the alleged offences since he was charged with a number of crimes which were punishable with life imprisonment. The investigation had been extremely difficult because the offenses concerned were Nazi crimes committed more than 20 years ago; most of the witnesses were either unreliable as being suspected persons themselves or living abroad and therefore difficult to contact. The alleged offences involved numerous victims and it was necessary to clarify the whole historical complex (Gesamtgeschehen) in order to make a proper assessment of the individuals who had taken part in these actions, the degree of their participation and their guilt. The Court also found that there had been no avoidable delay in the investigations and it concluded that the decision of the Court of Appeal that the Applicant should remain in detention did not violate the Basic Law (Grundgesetz).   27. On 21 March 1967, the Criminal Chamber of the Regional Court of Hagen, noting that the preliminary judicial investigation (mentioned in paragraph 21 above) had been concluded, committed the Applicant for trial. It also ordered his continued detention.   28. The trial of the Applicant and the 2 co-accused opened before the Regional Court of Hagen on 28 August 1967. It is expected to last until April 1968.   B. Whereas the arguments of the Parties may be summarised as follows:   I. As to Article 5, paragraph (3), of the Convention (right to trial within a reasonable time or to release pending trial).   1. The Applicant submitted that, according to the Commission's constant jurisprudence, the term "reasonable time" in Article 5, paragraph (3), of the Convention must be determined in the light of the concrete circumstances of each case. In the Wemhoff case the Commission had in its report adopted certain criteria for the evaluation of such circumstances and, in this connection, special consideration should be given to the actual length of the detention. The nature of the alleged offence and the penalty to be expected in the event of conviction could also be taken into account but, when applying this criterion, it was necessary to observe the presumption of innocence as guaranteed by Article 6, paragraph (2) of the Convention. Special regard must be had to the fate of the individual involved. The reasonableness of a period of detention on remand could not be determined primarily on the basis of the requirements of the criminal investigation. Detention pending trial constituted a "special sacrifice" ("Sonderopfer") which an individual, whether guilty or not, had to make for the maintenance of an effective administration of justice. The length of such detention must not exceed a measure which could reasonably be imposed even on an innocent person.   The Applicant affirmed his innocence. He stated that, since 1945, he had been living under his real name and been duly registered with the police. He had not attempted to flee or to conceal his past. His arrest in 1961 had been premature as was shown by the fact that his co-accused had not been arrested until 1964. During his detention he had been anxious to facilitate the work of the investigating authorities and he had shown that certain evidence against him was perjured.   The Applicant further considered that the transfer of his case from Hamburg to Berlin, and subsequently from Berlin to North Rhine-Westphalia, had caused a delay of 2 years in the investigation. He pointed out that each new Public Prosecutor had to acquaint himself with the particular conditions in the concentration camps and that this required extensive studies. He submitted that a considerable delay in the proceedings could have been avoided if, in 1962, his case had been transferred directly from Hamburg to North Rhine-Westphalia or if, once transferred to Berlin, it had remained there.   The Applicant also stated that his very long detention had disrupted his business life, endangered his family ties and severely affected his health. In particular, the uncertainty as to his fate constituted a serious mental strain. The Applicant concluded that his detention pending trial for over 6 years clearly violated Article 5, paragraph (3), of the Convention.   2. The Respondent Government stated that the Applicant's arret became necessary in 1961 after allegations concerning the "death baths" at Gusen concentration camp had been made against him in public. He might thus have learned that an investigation concerning these grave charges was pending against him and that the Public Prosecutor knew his place of residence. There was, consequently, a danger that he might escape. It was not necessary, however, at that time to arrest the other accused since in their case there was no danger of flight. They were not informed of any investigation being made again at them and it was, therefore, possible to postpone their arrest until the time when they had to be heard on the matter personally.   In its decision of 14 March 1967, the Federal Constitutional Court, having regard to the very exceptional circumstances of the present case, had found that the length of the Applicant's detention on remand did not violate the Basic Law. The Government also observed that the proceedings in the Wemhoff case, which had been mentioned by counsel for the Applicant, were still pending before the European Court of Human Rights.   The complexity of the present case and the difficulty of the criminal investigation were further illustrated by the fact that the death register of Gusen concentration camp contained the names of over 30,000 persons; that about 150 witnesses, selected from a total of 2,000, had to be thoroughly examined; and that the scene of the crimes to be investigated was outside the Federal Republic of Germany.   The Government also considered that the transfer of the Applicant's case from Hamburg to Berlin, and subsequently from Berlin to North Rhine-Westphalia, was unavoidable and that, in any case, it had not caused any substantial delay in the proceedings. Under the federal organisation of German justice, the lower instances fell within the jurisdiction of the Länder. It was not possible for cases like the present one to set up a federal investigating and prosecuting office with competence for the whole Republic. The territorial competence of the Cologne Central Office was limited to the Land North Rhine-Westphalia. It was true that, at the time of the transfer of the Applicant's case from Hamburg to Berlin, the suspected person residing in North Rhine-Westphalia, who finally provided the ground for the jurisdiction of the Cologne Office, was already known to the Public Prosecutor's Office. However, the investigation of that person's part in the alleged crimes had not then reached the point where he could have been charged with any certainty. Thus at that time the jurisdiction of the Cologne Office could not be established.   After the transfer of the proceedings from Berlin to Cologne in 1963, the Central Office gave preference to the case and one Public Prosecutor dealt with it exclusively. The Cologne Office had been set up for the particular purpose of assuring a speedy investigation of national socialist crimes committed on concentration camps and it had extensive special knowledge at its disposal. Furthermore, the 2 officials who had been in charge of the case in the Berlin Public Prosecutor's Office were seconded to the Cologne Office for a period of 2 months. Thus the investigation was carried out efficiently and without interruption. Pointing out that the investigation was terminated in June 1965, the Government further submitted that the prolongation of the proceedings from that date until the opening of the trial on 28 August 1967 was mainly the result of motions introduced by the Applicant, in particular his request for a preliminary judicial investigation.   Finally, the Government referred to Resolution 1158 (XLI) of the United Nations Economic and Social Council on the punishment of war criminals and of persons who committed crimes against humanity. In this Resolution, which was adopted on 5 August 1966, States were urged to continue their efforts to ensure the arrest and punishment of such criminals and Governments were invited to inform the UN Secretary General of the measures taken. The Respondent Government also quoted complaints of the Eastern bloc that the Federal Republic of Germany had failed in its duty to prosecute Nazi crimes.   The Government concluded that it would welcome a statement by the Commission as to how Courts and Public Prosecutors in Germany should solve the special problems of arrest and detention arising in the prosecution of such crimes.   II. As to Article 3 of the Convention   1. The Applicant submitted that the whole situation complained of amounted to a violation of Article 3 of the Convention which states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. He did not, however, make any specific allegation in this respect.   2. The Respondent Government submitted that the length of the Applicant's detention could not be considered by itself to constitute a violation of Article 3. It further pointed out that the Applicant himself did not complain that, during his detention, he had in any way been subjected to inhuman or degrading treatment.   III. As to Article 6, paragraph (2), of the Convention   1. The Applicant alleged that the whole situation complained of also amounted to a violation of Article 6, paragraph (2), of the Convention which provided that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. He considered that this principle must be taken into account in any decision as to whether a period of detention pending trial is reasonable.   2. The Respondent Government submitted that the Applicant had in no way been treated as if he had already been proved guilty. In particular, the duration of his detention could not be regarded as an "advance" on his possible sentence.   THE LAW   Whereas Article 5, paragraph (3) (Art. 5-3), of the Convention states that everyone arrested or detained in accordance with the provisions of paragraph (1), sub-paragraph (c), of this Article (Art. 5-1-c) "shall be entitled to trial within a reasonable time or to release pending trial";   Whereas it is not disputed that the Applicant was arrested on 5 May 1961, on suspicion of murder, that he has been detained since that date, his various applications for release from custody having been rejected by the competent German courts; and that his trial finally opened before the Regional Court of Hagen on 28 August 1967;   Whereas the Applicant alleged that his detention pending trial for over 6 years constituted a clear violation of Article 5, paragraph (3) (Art. 5-3), of the Convention;   Whereas the Respondent Government submits that the investigation in the Applicant's case concerned particularly serious offences; that it was extremely complex and difficult; and that it was carried out with the greatest possible expedition;   Whereas, according to the constant jurisprudence of the Commission, the question whether a period of detention pending trial is "reasonable" within the meaning of Article 5, paragraph (3) (Art. 5-3), cannot be decided in abstracto but must be considered in the light of the particular circumstances of each case; whereas, in this respect, the Commission refers to Appendix II of its Report in the Wemhoff case;   Whereas the Respondent Government considers that special problems of arrest and detention arise in the prosecution of Nazi crimes; whereas the Commission has previously examined a case where crimes against humanity were involved; whereas, in that case, a person charged with having participated in mass executions of Jews in 1942 - 43 was detained pending trial for over 19 months; and whereas, in its decision on the admissibility of that application, the Commission stated, inter alia, (Application No 920/60 - X v. Federal Republic of Germany, Collection of Decisions, Volume 8, pages 46 - 49 [48 - 49]);   "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; 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 régime 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 - 45; whereas, consequently, the participation of the Applicant in the mass exterminations at Minsk in 1942 - 43 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 it is true that some of these considerations appear applicable to the present case; whereas, however, it must not be overlooked that the period of detention in the above Application was under 20 months while the present Applicant has been detained pending trial for over 6 years;   Whereas, further, in several previous cases the Commission has admitted complaints under Article 5, paragraph (3) (Art. 5-3) , of the Convention where, at the time of its decision on the admissibility the periods of detention ranged from 19 months to 3 years and were thus substantially shorter than in the present case (of the cases of Matznetter, Stögmüller, Neumeister, Wemhoff and Gericke);   Whereas Article 27, paragraph (2) (Art. 27-2), of the Convention, in requiring the Commission to declare inadmissible any application from an individual which it considers to be "manifestly ill-founded", does not permit the Commission to reject a complaint whose lack of foundation cannot be so described (see Application No 2294/64 - Gericke v. Federal Republic of Germany, Yearbook of the European Convention on Human Rights, Volume 7, pages 348, 354); whereas in the present case the Commission has carried out a preliminary examination of the information and arguments submitted by the Parties with regard to the Applicant's complaint under Article 5, paragraph (3) (Art. 5-3), of the Convention concerning the length of his detention pending trial; whereas the Commission finds that this complaint is of such complexity that its determination should depend upon an examination of its merits; whereas it follows that it cannot be regarded as manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2); whereas, therefore, it cannot be declared inadmissible on that ground; and whereas no other ground for declaring the Application inadmissible has been found;   For these reasons and without any way prejudging the merits of the case, the Commission declares the Application ADMISSIBLE under Article 5, paragraph (3) (Art. 5-3), of the Convention.