CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 mai 1974

.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 }  I.    THE FACTS   The facts of the case, as submitted by the applicant and apparently not in dispute between the Parties.   The applicant is a German citizen, born in 1935 and was living in Bremen when lodging the application. He is at present detained in prison in Bremen.   In 1967 the police started investigations against the applicant and others who were suspected of having committed numerous fraudulent acts. The applicant was for the first time interrogated by the police in winter 1968. At the instance of the criminal police (Kriminalamt) a photograph of the applicant and two other men was published in two Bremen newspapers with a warning to the public. These publications appeared on .. May 1969. According to the newspaper articles the applicant and the other men worked as itinerant salesmen. They offered their services to business firms and claimed commissions for orders which they had allegedly collected. It turned out later that either the person who was supposed to have placed an order did not exist or his signature had been forged. According to the police the three suspects had the order signed by their accomplices or their wives. It further followed from the articles that the police had not yet collected enough evidence sufficient for an indictment and that the suspected trio could not even be arrested as they had a fixed abode. In fact the applicant was not even arrested before .. August 1971 on the authority of a warrant of arrest (Haftbefehl) issued on .. May 1971 on the ground that there was strong suspicion of him having committed fraud (Tatverdacht) and that there was, furthermore, danger that he might abscond (Fluchtgefahr).   The indictment (Anklage) against the applicant was filed in March 1970.   On .. May 1970 the Regional Court (Landgericht) in Bremen rejected the applicant's request to carry out preliminary court investigations (Voruntersuchung). This decision was confirmed on .. June 1970 by the Hanseatic Court of Appeal (Hanseatisches Oberlandesgericht) in Bremen. Both courts stated that the evidence offered by the applicant could be taken during the trial.   The trial against the applicant and his co-accused started in January 1971 before the District Court (erweitertes Schöffengericht) in Bremen but the case was later remanded to the Regional Court.   The trial before the Regional Court in Bremen started in April 1971 and on .. June 1971 the applicant was convicted of continued fraud (fortgesetzter Betrug) and sentenced to five years' imprisonment. The Court further ordered that for a period of five years the applicant was not allowed to exercise the profession of an itinerant salesman.   The applicant appealed (Revision) alleging violations of certain rules on criminal procedure.   On .. August 1972 the Federal Court (Bundesgerichtshof) quashed the Regional Court's decision and sent the case back for a new trial. This decision was based on the following grounds:   from .. May 1971 the trial had been carried out in the applicant's absence who was allegedly suffering from feverish influenza at the time.   On .. May 1971 the trial curt considered and discussed the applicant's previous convictions. These convictions were later taken into account in fixing the applicant's sentence. The Federal Court found that procedural law and been violated because the applicant's previous convictions had been discussed in his absence. The Federal Court stated that for these reasons it did not have to deal with the applicant's complaints as to the merits. However the court added in an obiter dictum that the complaints were unfounded.   The Federal Court did not, however, order the applicant's release. The applicant lodged several appeals (Beschwerden) complaining of his detention on remand. These appeals were all rejected by the Hanseatic Court of Appeal in decisions of .. November 1971 (a further appeal against this decision was rejected by the same court as being inadmissible), .. March 1972, .. April 1972, .. August 1972, .. February 1973 and .. September 1973 on the ground that there was danger of absconding. In the last-mentioned decision the court stated that, according to inquiries made, the applicant was fit for detention. The Court of Appeal referred to the reasons stated in the warrant of arrest. In its decision of .. August 1972 it added that less stringent measures were not indicated as they would not secure the purpose of detention on remand.   On .. February 1973 the Regional Court again convicted the applicant of fraud and this time sentenced him to four and a half years' imprisonment. The court also ordered that for a period of five years the applicant was not allowed to exercise the profession of an itinerant salesman.   The applicant again appealed but his appeal was again rejected on .. November 1973.   The applicant laid criminal charges against the police officer who had been responsible for the newspaper article in which the applicant was described as a fraudulent person. On .. July 1969 the Chief Public Prosecutor (Leitender Oberstaatsanwalt) in Bremen informed the applicant that he had discontinued the proceedings against the police officer concerned. He stated that the only provisions of the Criminal Code which the police officer might perhaps have violated were Article 185 et seq. (insulting remarks, slander) but it was not in the public interest to continue the criminal proceedings ex officio. He informed the applicant that he was free to bring an action (Privatklage) against the police officer. But he advised him that such an action had no prospects of success as the police officer could, at least partially, prove that the information he gave to the press was correct and he could argue that it was given in the public interest.   The applicant also laid criminal charges of perversion of justice (Rechtsbeugung) against a judge. It appears that he later withdrew his complaints but he was informed by the Public Prosecutor on .. May 1970 that in any event his accusations against the judge were unfounded.   The applicant has complained of his conviction and sentence to the Federal Constitutional Court (Bundesverfassungsgericht) but his complaint was not registered as a constitutional appeal as it was partly inadmissible and for the remainder clearly ill-founded.   COMPLAINTS   The applicant complains that he was branded in a newspaper article as a fraudulent person although he had neither been convicted nor had he made a confession at that time.   He further complains that the court rejected his request for a preliminary investigation (Voruntersuchung).   He also complains that the Public Prosecutor did not investigate the true facts of his case quickly enough.   Finally, he complains that he was wrongly convicted and sentenced. He states that, as a consequence of the above-mentioned newspaper article published before his trial the judges were biased against him. He also alleges that the trial court did not consider evidence offered by him.   The applicant invokes Articles 6 and 13 of the Convention.   II.   Proceedings before the Commission   In view of the fact that the applicant had not exhausted domestic remedies when he lodged his application it was not examined by the Commission before 1 October 1973 when the Commission decided to communicate the application to the Federal Government for observations on decision with regard to the applicant's complaint that he was not brought to trial within a reasonable time within the meaning of Article 5 (3) of the Convention. The Government's observations were received on 13 February 1974 and the applicant as then invited to reply. His reply was received on 27 February 1974.   III. The relevant parts of the observations of the Federal Government on admissibility submitted on 11 February 1974 (received on 11 March 1974).   (1)   As regards Article 6 (1) of the Convention it is submitted that the length of the proceedings cannot be regarded as excessive considering the offenses with which the applicant was charged, his own conduct during the proceedings, and the requirements of criminal proceedings properly conducted in a State governed by the rule of law.   (a)   The charge against the applicant was preferred on .. March 1970; at this time the period under Article 6 (1) of the Convention began to run. The pronouncement of the first judgment of the Regional Court (Landgericht) Bremen on .. June 1971 might be regarded as the material time for the end of the period because the Federal Court (Bundesgerichtshof), when deciding the petition for review, did not pronounce upon the merits of the charge. If this is not considered the material time because the first judgment of the Regional Court Bremen was not upheld, the Government of the Federal Republic of Germany submits that the period ended with the Regional Court's second judgment of .. February 1973. With this judgment, the merits of the charge were definitely determined. In its order of .. November 1973 dismissing the petition for review directed against this judgment the Federal Court merely declared that the review of the judgment on the basis of the grounds given for the appeal had not revealed an error of law to the accused's detriment. Consequently, by this order no further-reaching or varying decision is passed on the charge. The observations made as a matter of precaution hereinafter refer to the time from .. March 1970 to .. February 1973, i.e. a period of 2 years, 10 months, and 18 days.   (b)   Having regard to the particular circumstances of the case, this period cannot be considered unreasonably long:   In the indictment of.. March 1970 the applicant was charged in a great number of cases with having obtained as a commission agent money under false pretences usually together with his three co-accused. He was accused of producing fictitious orders to various firms and receiving or trying to receive commissions as a commission agent; it was alleged that some of the people named as buyers did not exist, that, in other cases, the orders were not signed by the persons named in them or signed without intention of buying. The indictment, which ran to 50 pages, named 84 witnesses and listed 318 individual cases; in most cases the applicant was alleged to be the offender or a joint offender.   On .. April 1970, after the indictment had been preferred, the applicant applied for judicial preliminary investigation, i.a. on the ground that so far he had not yet had sufficient opportunity to confer with his defence counsel. He also declared above all that a more thorough investigation would show that he had not rendered himself liable to punishment. On .. May the Public Prosecutor opposed the application, which was rejected by order of the Regional Court on .. May. Against this order of the Regional Court the applicant then filed an immediate appeal (sofortige Beschwerde) dated .. May. After the Prosecutor General had made his observations thereof, the Court of Appeal (Oberlandesgericht), by order of .. June, dismissed the immediate appeal as unfounded.   On .. July 1970 the Regional Court ordered the opening of the main proceedings against the four accused. In doing so, it directed that the trial should be held in the District Court (Amtsgericht) Bremen sitting as an "Erweitertes Schöffengericht", i.e. with two professional judges (instead of one judge). Against this order the Public Prosecutor filed an immediate appeal dated .. July applying for the proceedings to be held before the Regional Court Bremen. On .. August this immediate appeal was withdrawn. Thereupon papers were sent to the District Court Bremen where they were received on .. August.   In that same month of August the District Court began preparing the trial, as appears from the files; i.a. other files had to be obtained. On .. September a warrant of the arrest of the co-accused D. was issued on account of the danger that he might abscond. By letter of .. November the District Court informed counsel for the accused of its intention to begin with the trial in January 1971. On .. December it decided that the trial should begin on .. January 1971, and it ordered the formal summonses to be issued. The trial was held on .., .., .., and .. January 1971.   On the first day of the trial the applicant challenged the president of the court alleging that he might be biased. The challenge was rejected as inadmissible. The applicant declared that he would make no statement as to the facts. On .. January the Public Prosecutor applied for a reference of the proceedings to the Regional Court Bremen. The Court granted the application on the same day. In the reasons for its order it referred to its limited powers of imposing sentences, since, under Section 24, paragraph 2, of the German Judicature Act (Gerichtsverfassungsgesetz), District Courts may impose no severer punishment than three years' imprisonment. The District Court Bremen pointed out that on .. December 1970, by a judgment that had become final and binding, the accused B. was sentenced to two years and seven months' imprisonment; in the proceedings at bar the formation of a new aggregate sentence had to be considered. Moreover, the District Court took into account that in January 1971 the applicant was sentenced to three months' imprisonment, which brought the number of his previous convictions up to 17. To elucidate the facts of the case it was necessary that the proceedings should be continued against all four co-accused jointly.   On .. February 1971, after receiving the files, the Regional Court Bremen decided that the new trial should take place on .. April 1971. On .. April a further indictment was preferred against the four accused in new proceedings; they were charged with rather similar offenses. The cases concerned had not come to light before the conclusion of the investigations in the earlier proceedings. Some of the charges related to offenses that had been committed as late as at or after the conclusion of the investigations in those proceedings. The new indictment included 93 individual offenses, naming 37 witnesses. On .. April the Regional Court decided to combine both proceedings.   The trial before the Regional Court was held on 14 days between .. April and .. June 1971. 45 witnesses were heard in the course of the proceedings; the record of the trial comprises 246 pages. In the beginning of the trial the applicant declared that he was prepared to answer questions regarding the charges. On .. May, however, he failed to appear. On the same day a warrant was issued for his arrest. In a letter of .. May, in which he informed the court   that he was ill - without giving any details of his illness - he did not disclose his whereabouts. On .. June he reported to the inhabitants' registration office that he was leaving for Kenya. Subsequently, however, he stayed in Lübeck and Travemünde, sometimes under assumed names.   On .. August he was apprehended at T. after trying to make his get-away in a private car. Following his arrest he first served the sentence of three months' imprisonment earlier imposed upon him. From .. November 1971 he was in custody on remand.   On .. May, after the applicant had absented himself from the trial, the Regional Court first separated the proceedings against him from the other proceedings. On .. May, the proceedings were again combined. The judgment was pronounced on .. June 1971, the applicant being sentenced to an aggregate sentence of 5 years' imprisonment.   On behalf of the applicant and his co-accused D. and S. defence counsel filed petitions for review on .. and .. June, respectively. On .. October the judgment was handed to the applicant who had meanwhile been arrested; the reasons filled 218 pages. Grounds for the applicant's petition for review were given in his counsel's written pleadings dated .. November 1971. On .. November 1971 the applicant lodged an appeal (Beschwerde) complaining of his detention. It was dismissed as unfounded by order of .. November. Against this order of the Court of Appeal the applicant lodged a "further appeal" (weitere Beschwerde) dated .. December 1971 which was rejected as inadmissible by order of .. December. On both occasions the files of the criminal proceedings were transmitted to the Court of Appeal through the Prosecutor General.   On .. February 1972 the Public Prosecutor in Bremen filed an answer to the petition for review. The Federal Prosecutor's applications of .. June 1972 were received by the Federal Court on the following day. By order of .. July 1972 the oral hearing of the petition for review was fixed to take place on .. August. On this day the Federal Court decided that the Regional Court's judgment on the applicant should be completely set aside. According to the reasons, it was decisive for this order only that the applicant's previous convictions, as shown by an excerpt from the register of convictions, were discussed on .. May 1971, i.e. in his absence. In respect of the accused D. and S. the Federal Court only quashed the Regional Court's sentence.   In the meantime the main files had grown to consist of 9, the supplementary files of 63 volumes. After the judgment had been drawn up, it was received with the files by the Federal Prosecutor on .. September and by the Public Prosecutor Bremen on .. September. On .. September the applicant filed a complaint against the decision of the Regional Court; on .. October he also lodged an appeal concerning his detention. On account of these two objections the files of the criminal proceedings were first transmitted to the Prosecutor General for his observations and the to the Court of Appeal for decision. When the Court of Appeal had rejected the appeal concerning his detention, which was on .. October, it next day returned the files, which were no longer needed of its further decision, in order to avoid delay in the preparation of the trial.   On .. November 1972 the president of the penal chamber of the Regional Court noted down that the applicant's new trial should start on .. January 1973. At the same time he ordered that the new trial of the co-accused D. and S. should be held on .. December. As the first judgment had become final and binding as regards the conviction of these co-accused, no new fact-finding was necessary in those proceedings. It was, therefore, deemed expedient to separate the shorter main proceedings.   On .. November 1972 the date for the applicant's new trial was finally set down, and accordingly it was begun on .. January 1973. 33 witnesses were called. In the beginning of the proceedings the applicant declared that he would make no statement. The trial was held on .., .., .., .., and .. January and on .., .., .., and .. February. The record consists of 140 pages; the written reasons for the judgment, which were drawn up later, are 92 pages long.   (c)   It follows from the observations made in sub-paragraph (b) that the proceedings were not delayed. It is the applicant's own fault that, from .. April to .. June 1970, no decision could be taken on the opening of the main proceedings because his application for judicial preliminary investigation and his immediate appeal against the order dismissing the application had to be decided first. The subsequent proceedings revealed that the application was entirely without foundation.   When it was settled that no preliminary investigation would be held, the Regional Court opened the main proceedings without delay. Inasmuch as the Public Prosecutor filed an immediate appeal against the opening order, preparations for the trial could not yet be made.   The time between the withdrawal of the immediate appeal (.. August 1970) and the appointment of a date for the trial ( .. December 1970) was not unduly long. It must be taken into consideration that the judges had to make themselves familiar with a very extensive indictment.   In the trial before the District Court there was no avoidable delay. The reference of the proceedings to the Regional Court on .. January 1971 was required,   because i.a. judgments by which prison sentences were imposed on two of the accused had meanwhile become final and binding and the inclusion of these sentences in an aggregate sentence to be formed had to be considered.   It is true that the proceedings would have been shorter if the Regional Court in its opening order had complied with the Public Prosecutor's request not to open the main proceedings before the "Schöffengericht" (of the District Court). It may well be that this would have been better. However, if the proceedings had thus been conducted more speedily, it would not have been possible to combine them with the second proceedings in which the indictment was preferred on .. April 1971. In these proceedings, in which the indictment could not be preferred earlier, the trial could not have begun before April 1971 anyhow - and this is exactly what happened in the combined proceedings. Consequently, if one considers all the charges raised against the four accused in this connection, the final determination of the charges was hardly delayed by opening the first proceedings before the "Schöffengericht".   In the opinion of the Government of the Federal Republic of Germany violation of Article 6 (1), first sentence, of the Convention, cannot be held to lie just because the Regional Court, in using its powers of opening proceedings, took a course the expedience of which could later be doubted.   As regards the proceedings before the Regional Court the following remarks may be made:   the date for the trial was fixed as early as 10 days after the files had been received by the Regional Court, i.e. on .. February 1971.   In consideration of the circumstances, the setting down of a trial date still a month and a half distant was the proper course to take. In the meantime, about 80 witnesses had to be summoned. If a summons could not be served, attempts had to be made to find the witness's new address.   There were no avoidable delays, either, during the trial from .. April to .. June 1971 and in the drawing up of the judgment served on the applicant on 1 October. The time of two and a half months taken for drawing up the reasons for the judgment appears to be appropriate in view of the complexity of the case and the necessary length of the reasons (218 pages). The time up to .. November was required by applicant's counsel to state the reasons for his petition for review. From the middle of November up to the middle of December the files were needed to deal with the complaints made by the applicant.   When forming an opinion on the length of the period until the submission of the answer to the petition for review (on .. February 1972) and the making of applications by the Federal Prosecutor (on .. June 1972) it must be born in mind that the contents of the files had in the meantime grown considerably, that three different petitions for review had been filed, and that the applicant's petition contained numerous complaints. It took but little time to fix a date for the oral hearing before the Federal Court and to hold that hearing.   If it is remembered that a new separate trial had to take place in December 1972 against the co-accused D. and S. the time until the new trial against the applicant began on .. January 1973 does not appear to be long. The trial itself was speedily conducted.   In summarising, it must be stressed that the extraordinary complexity of the case, especially the great number of witnesses, made it unavoidable that the proceedings took some time. Furthermore, there was the inseparable connection with the proceedings against three other accused who acted similar to the applicant or jointly with him. The most decisive point was, however, that in accordance with the requirements of the law of criminal procedure the charges repeatedly had to be determined by new tribunals and that the allegations made against the applicant were the subject of three different oral hearings before fact-finding courts. Between the first and the second judgment of the Regional Court alone more than 1 year and 10 months elapsed.   This prolongation of proceedings was caused only because the applicant had absented himself from the first trial before the Regional Court. His subsequent conduct reveals that his allegation that he was ill cannot be believed. This is indicated especially by the fact that, as far as can be seen, he made no concrete statements about his alleged illness and produced no medical certificate. From his conduct it can only be inferred that he wanted to delay the proceedings by staying away from the trial. Almost two-thirds of the length of the proceedings must, therefore, be ascribed to the applicant's conduct which was aimed at prolonging the proceedings.   It is submitted that, under these circumstances, a violation of Article 6 (1), first sentence, of the Convention cannot be established.   (2)   Also under Article 5 (3) of the Convention, the application must be regarded as manifestly ill-founded; the material period under this provision was not unreasonably long however it may be calculated.   (a)   The following observations may be made on the computation of the period:   if it is not held that the applicant's detention in its entirety falls under Article 5 (1) (a) of the Convention, the Federal Government takes the view that the material period is the time from .. August 1972 to .. February 1973. This is a period of 5 months and 27 days. If, in addition, also the time spent under detention on remand between the Regional Court's first judgment and the Federal Court's decision of .. August 1972 is considered, the material period would be the time from .. November 1971 to .. February 1973, i.e. a period of one year, two months, and   27 days.   (b)   Neither of these periods is unreasonably long. When judging them, in addition to the facts mentioned in paragraph (1) (b), the following circumstances should be considered:   After his apprehension on .. August 1971 the applicant, as already mentioned, first served a sentence of three months' imprisonment that had earlier been imposed upon him. On .. November 1971 the Regional Court Bremen issued a new warrant of arrest against him. It was based on the consideration that the applicant was strongly suspected of fraud and forgery of instruments in 22 cases as was shown by the Regional Court's judgment of .. June 1971. The ground of arrest, namely risk of flight, was based on the fact that on .. May 1971 the applicant stayed away from the trial and absconded. The Regional Court held that, judging from his flight and the sentence of imprisonment to be expected, there was danger that he would again avoid the criminal proceedings by absconding.   After the beginning of detention on remand on .. November 1971 the applicant, as mentioned above, lodged an appeal concerning his detention on .. November and, against the order dismissing his appeal, a "further appeal" on .. December, which was rejected as inadmissible on .. December 1971. Further, he lodged an appeal concerning his detention on .. February 1972, which was dismissed as unfounded by the Court of Appeal Bremen on .. March 1972; another appeal concerning his detention, dated .. March 1972, was also held by the Court of Appeal in its order of .. April 1972 to be unfounded.   The Court each time referred to the valid reasons stated in the warrant of arrest.   When setting aside the first judgment on .. August 1972 the Federal Court saw no reason to vacate the warrant of arrest under Section 126, paragraph 3, in conjunction with Section 120 of the Code of Criminal Procedure. According to these provisions, the court dealing with the appeal ("Revision") may vacate the warrant of arrest when setting aside the impugned judgment if it plainly follows from this decision that the requisites for continued detention on remand are no longer present or that such detention would last disproportionately long.   The applicant further appealed against his detention on .. August and, as mentioned, on .. October 1972. The appeals were dismissed as unfounded by the Court of Appeal Bremen on .. August and .. October 1972, respectively. The Court observed in its orders that strong suspicion of arrest - i.e. risk of flight - continued to exist. In its order of .. October the Court of Appeal also referred to the Federal Court's judgment that had meanwhile been passed. The Court of Appeal held that the setting aside of the Regional Court's first judgment on account of a procedural error provided no reason for taking a different view of the suspicion that the applicant had committed the deeds. In both the orders the Appeal Court declared that the purpose of detention on remand could not be fulfilled by less stringent measures under Section 116 of the Code of Criminal Procedure.   (c)   It follows from the above observations that the warrant of arrest had to be sustained from .. November 1971 to .. February 1973. The judgment of the Regional Court Bremen of .. June 1971 established the strong suspicion in respect of the deeds that were the subject of the conviction. Insofar the Federal Court's judgment of .. August 1972 did not change the situation for the procedural error leading to the setting aside of the Regional Court's judgment was not seen to lie in the finding of the offender's guilt, but in the discussion of his previous convictions in his absence.   The ground of detention - i.e. risk of flight - continued to exist during this period. It was based on his staying away from the trial before the Regional Court, his reporting to be leaving for Kenya, his using assumed names, and, finally, his attempted flight at T. when he was arrested. As a result of the expectation of a sentence of about five years' imprisonment the risk of flight increased. The length of the detention on remand was not disproportionate to the punishment that was to be expected.   Therefore, it does not appear   that the applicant's rights were violated by court decisions dealing with detention.   As regards the length of the proceedings reference may be made to the observations set out above in paragraph   (1) (c). Neither the period from .. November 1971 to .. February 1973 nor that from .. August 1972 to .. February 1973 can be regarded as disproportionately long in respect of the applicant's detention. Detention on remand would have been unnecessary altogether if the applicant had not absented himself from the trial before the Regional Court and absconded. Consequently, Article 5 (3), second half of the first sentence, of the Convention has not been violated, either.   IV.   The relevant parts of the applicant's reply of 23 February 1974 (received on 27 February 1974) to the Regional Court's observations of 11 February 1974.   1)    It is true that I applied for a judicial preliminary examination. But this was only because it was stated in the indictment that certain clients who had made orders were non-existent although they in fact resided at the address given. For the prosecution had made inadequate enquiries. A careful investigation in fact revealed that the names specified in the indictment actually existed.   And I was in a position to produce this evidence of the inadequate investigation by the prosecution to the court or the registry of obtaining certificates from the registration authorities so far as my own orders were concerned. It should be remembered that I was in detention when the indictment was served and was only able to make investigations to clear myself after my release. The evidence in my favour deposited with the registry of the Criminal Court in Bremen could not be found at the time of the hearing (the President of the Court said "I am not surprised that documents are missing in this court, a lot disappears here") (Non-literal quotation). In addition I also applied for a preliminary investigation in order that an expert might be appointed to conduct careful enquiry into whether the orders in question were in fact mine; I mean because the principal accused had at the time forged my signature to certain contracts.   When the case came on for trial before the District Court on .. January 1971, I challenged the President on the grounds of bias. The reason was that he had been a judge in the case of XXX and sentenced me to sixteen months'imprisonment. This sentence was reduced from sixteen to ten months on appeal. I have served these ten months and received indictment while serving sentence. Officially appointed defence counsel did not visit me and I was therefore unable to prepare my defence to the proceedings and asked for a preliminary investigation.   When the District Court was about to refer the proceedings to the Regional Court, I made an application for the proceedings against me to be separated and continued in the lower court. This application was refused.   This however shows clearly that I certainly did not wish to delay the proceedings but was always guided by the desire to obtain their speedy continuation.   For the rest I did not remain silent during the trial before the District Court. I adopted a position on the matter (see the record of the hearing). The Federal Government's account is incorrect!   It so happened that in the case of the principal accused B., who was serving a number of sentences imposed under final judgments with effect from .. January 1970, a consolidated sentence (Gesamtstrafe) would have to be imposed. The President of the District Court knew as early as 1970 (when THE CASE was referred to the District Court) that the conditions requiring the imposition of a consolidated sentence applied in B.'s case and that the jurisdiction of the Regional Court was not sufficient for this purpose. In spite of this the case was sent to the District Court.   Further, it is indeed worthy of note that the President of the District Court dealing with our case had himself previously sentenced B. (to nine months for fraud on .. December 1968; to one year on .. December 1969, etc.). He was accordingly aware that B. was already serving various sentences and that a consolidated sentence was possible. The prosecution was also aware of the position.   Another point must be corrected:   the second indictment was admitted by the Regional Court in my absence.   The trial before the Regional Court was held on two days in each week (1971). On the days when there was no hearing I worked in order to cover my essential needs. In May 1971 I was on a business trip for two days and was unable to appear at the hearing on account of a sudden illness. I immediately informed the court of my illness and added that I would make myself available for the proceedings as soon as I was better. Further, when I was able to get up I telephoned to the court President and asked for his comprehension. It is impossible that when, tied to my bed with a high fever, I nevertheless managed to write to the court excusing my absence that I sent the letter without endorsing my name and address. An acquaintance took the letter to the post for me and rang up the Regional Court registry.   It is contrary to plain logic for an accused who wishes to escape answering for his conduct in a criminal trial nevertheless to write to the court asking to be excused because he is ill. I should like once again to state very definitely that I never dreamt of attempting to evade the criminal authorities. On the contrary:   my first interest was and is to be rehabilitated; for it is beyond question that I have been convicted for offenses which I have not committed.   The allegation that I was living in Lübeck or Travemünde under a false name is not correct. I categorically deny this accusation!   I assume that the Attorney General's department in Bremen passed this false information to the Federal Government in order to cover up their failure in this matter.   It is true that I was arrested at T. on .. August 1971 but there can be no question of an attempt to abscond. I categorically deny any such imputation!   I am also not unaware that the officer in charge of the case in Bremen may have manipulated B.'s evidence in order to sacrifice me at the trial in January 1973. The same prosecuting officer has recently refused me leave from detention although the necessary requirements are satisfied. This is the result of an application for a disciplinary enquiry.   A reply to my notice of appeal by the Attorney General's department in Bremen dated .. February 1972 was not on me.   When the judgment was set aside by the Federal Court it was not necessary for it to consider other grounds since the one ground was sufficient for the purpose.   After the appeal judgment was set aside (.. August 1972) I applied to the Regional Court to fix a date for trial as early as possible. I also wrote to the President of the Regional Court for this purpose (see the letter of the President of the Regional Court).   About thirty witnesses were summoned to the trial in January 1973 but only about 25 of them were heard. The owners of only 6 of the 22 businesses involved in the case were examined. All the other - ostensibly - injured parties were not examined with a view to better clarifying the matter.   Furthermore, the Regional Court considered all the defence witnesses unworthy of belief. What is more, further applications for witnesses to be examined were refused by the court (see the record of the trial).   The judgment is based on B.'s evidence.   2)    From what has been said it follows that the proceedings were delayed by actions on the part of the court and the prosecution. The investigations by the prosecution proved inadequate so that the Regional Court had to separate the cases for their better clarification.   The second indictment scarcely affects me particularly in view of the fact that it was in any case introduced into the trial before the Regional Court in my absence (1971). The counts in this indictment are outside my knowledge, i.e. I know the indictment from hearsay only. Moreover, it did not form the subject-matter of the last trial unless of course I was convicted on counts in the second indictment despite the fact it was not introduced in my presence.   If it is being suggested that I delayed or obstructed the proceedings I must categorically reject the allegation. Moreover, it is completely illogical to believe such an allegation by the Federal Government because the Federal Court would not have set aside the Regional Court's judgment if the judges had believed that I deliberately remained absent from the trial.   3)    The Bremen Court of Appeal has found that the detention on remand commenced to run from .. August 1971 (decision of the Hanseatic Court of Appeal, Bremen of .. April 1973).   Again the Hanseatic Court of Appeal states in its decision of .. September 1973:   "The appellant has in fact been in detention on remand since .. August 1971".   (Ref. XXX.)   The Government's observations thus contradict the opinion of the Hanseatic Court of Appeal in Bremen.   It must further be objected that my rights were violated in respect of the long period of detention on remand. As early as May 1973 the doctor of the Bremen Prison certified that I was unfit for detention on account of liver and bowel disease. A copy was sent to the Regional Court. There, however, it fell on deaf ears and the certificate of unfitness for detention was ignored.   The principle of proportionality applies also to the question whether detention on remand should be ordered at all or continued.   The allegation of a violation of Article 5 of the Convention on Human Rights is based on the following grounds:   In my opinion I was not lawfully held in detention on remand. Firstly, it must be assumed that I did not attempt to abscond but failed to appear at the trial on account of illness.   a)    In my opinion there was no valid arrest warrant. The arrest warrant is based on the Bremen Regional Court's judgment of .. June 1971. In this case, however, the judgment, which with all the findings on which it was based was set aside by the Federal Court's judgment of .. August 1972, was NOT valid!   In other words, a judgment which according to a decision of the Federal Court is incorrect can provide a sound basis for the validity and execution of a warrant; for the general rule is that a warrant must state the facts on which it is based, but the warrant in question merely refers to the judgment of .. June 1971.   b)    The Regional Court's decision of .. February 1973 which "ordered the continuance of detention on remand and should provide justification therefor" is without any legal foundation, because the court obviously - and incorrectly - based itself on the "incorrect grounds" (which it purported to justify by using the word "correct") of the arrest warrant which in turn are merely based on the judgment of .. June 1971.   For the rest the position in fact and law has changed since the first judgment was set aside and it is not enough for the Regional Court to refer in its decision to the grounds of a judgment which are non-existent in order thereby to justify the continuance of the detention on remand.   The Bremen Regional Court's decision of .. February 1973 concerning the continuation of detention on remand must accordingly, in particular in view of the renewed conviction, be regarded as a violation of Article 5 (and also Article 6) of the Convention on Human Rights and Fundamental Freedoms; indeed the ordering of my detention (and continued detention) for danger of absconding on .. February 1973 does not comply with the form prescribed in paragraph 2 No. 2 of Article 112 of the Code of Criminal Procedure which is itself covered by the Constitution and Article 5 of the Convention on Human Rights. It follows from this that it is possible that the decisions of the Hanseatic Court of Appeal are also without legal foundation, seeing that the requirements of a valid warrant were not satisfied.   It may be observed that the beginning of the (alleged) time of committing the offense stated in the warrant and also the amount of damage with which I was charged were now no longer mentioned at the trial or in the new version of the reasons for the judgment; to this extent the facts in the warrant were not correct.   Insofar as the grounds of detention and suspicion are based on the non-existent judgment of .. June 1971, the continued execution of the detention on remand is unlawful.   4)    My unfitness for detention was brought to the knowledge of the Regional Court by a photocopy - sent by the Prison doctor. This was in May 1973 and was due to a liver and a bowel complaint, confirmed by the fact that a bed was reserved in the F. hospital.   I was even refused an oral review of my detention for which I applied on several occasions during my long detention on remand.   I here recall that I was without question and by far the prisoner with the longest period of detention on remand in Bremen, i.e. up to .. December 1973. The principle of proportionality is therefore particularly significant; for this PROHIBITION OF THE UNREASONABLE places a limit on the admissibility of otherwise permissible measures, as expressly stated in Article 5 of the Convention on Human Rights.   It is thus obvious that my rights were violated by the court decision on my detention.   When one considers that in May 1969 press reports appeared at the instigation of the Bremen investigation authorities (with my name and photograph) branding me as a swindler although no charge had been brought, not to speak of a date for the trial fixed, it is impossible to avoid the impression that the legal authorities in Bremen were intentionally and deliberately riding roughshod over the principles of law and justice. I make this charge at any rate against the investigating authorities. The proceedings are marked by serious defects. The investigations were not carried out with the necessary care and expedition and the judgment is based on presumptions only. Accordingly it may be DOUBTED whether the proceedings and the very long detention on remand are in accordance with the rule of law.   As stated in my constitutional appeal of .. December 1973 I consider that Articles 3, 5 and 6 of the Convention on Human Rights have been violated.   THE LAW   I.    The applicant has first complained that the police gave information to the press and that he was consequently branded in newspaper articles as being a fraudulent person. However, under Article 26 (Art. 26) of the Convention, the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.   In the present case the applicant failed to show that he brought a criminal action (Privatklage) or a civil action for damages against the responsible police officer and can, therefore, not be considered to have exhausted the remedies available to him under German law. Moreover, an examination of the case as it has been submitted, including an examination made ex officio does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.   It follows that the applicant has not complied with the condition as the exhaustion of domestic remedies and his application must in this respect be rejected under Article 27, paragraph (3) (Art. 27-3), of the Convention.   II.   1) The applicant has next complained of the length of the criminal proceedings and his detention pending his appeal.   The Commission has first considered this complaint under Article 5 (3) (Art. 5-3) of the Convention. The period with which this provision is concerned starts with a person's arrest and ends with the day on which the charge levelled against him is determined by a court of first instance (European Court of Human Rights, "Wemhoff" case, Judgment of 27 June 1968, p. 23).   The particularity of this case is that the applicant, after his arrest, first had to serve a three months' prison sentence while his detention on remand did not start before .. November 1971, that is after his conviction of .. June 1971 which was later quashed by the Federal Court on .. August 1972.   The Commission does not consider it necessary to decide whether, in view of these circumstances, the applicant's whole period of detention on remand falls under Article 5 (1) (a) (Art. 5-1-a) of the Convention and can therefore - as the Government suggest - not be judged under Article 5 (3) (Art. 5-3), or whether Article 5 (3) (Art. 5-3) is applicable at least in regard to the period from .. August 1972 to .. February 1973.   The Commission is assuming in the applicant's favour that the period concerned under Article 5 (3) (Art. 5-3) lasted from .. November 1971 to .. February 1973, which would be the longest possible period running from the beginning of the applicant's detention on remand until his second conviction pronounced by the trial court. The Commission, even on this assumption, does not however consider that this period was unreasonably long taking into account the complexity of the case and the gravity of the charges against the applicant. It is important to note that the Federal Court had already in its decision of .. August 1972 indicated that the applicant's appeal was unfounded insofar as he alleged that he had been wrongly convicted. The Commission could furthermore not find that the reasons given by the German judicial authorities, when prolonging the applicant's detention on remand, were invalidated by the applicant's submissions.   For these reasons the Commission is of the opinion that there is no appearance of a violation of Article 5 (3) (Art. 5-3).   2) As regards the alleged violation of Article 6 (1) (Art. 6-1) of the Convention, the period to be taken into consideration begins, according to the case-law of the European Court of Human Rights (see the "Wemhoff", "Neumeister" and "Ringeisen" cases, judgments of 27 June 1968 and of 16 July 1971), with the date on which a person is charged and, in determining that date, regard must be given to the particular circumstances of the case concerned.   The Commission in resolving this problem held in previous decisions that "the relevant stage is that at which a person concerned has been substantially affected as a result of a suspicion against him" (see Commission's Report in European Court of Human Rights, Series B, "Neumeister" case, p. 81, and the Report concerning application No. 4517/70, Huber v. Austria, p. 30). In the cases just cited the Commission has found that the interrogation of the applicant or of witnesses alone is not sufficient to hold that the applicant is faced with a criminal charge