CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 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 presented by the parties and apparently not in dispute between them, may be summarised as follows:   The applicant is a German citizen, born in 1942 and at present detained in prison in Berlin. She is a lawyer (Assessorin) by profession and is represented before the Commission by MM. Eschen and Ströbele, barristers practising in Berlin.   The applicant was arrested in Berlin on 8 October 1970 and remanded in prison (Untersuchungshaft) on the authority of a warrant of arrest (Haftbefehl) issued on 9 October 1970 by the District Court (Amtsgericht) of Tiergarten in Berlin. She was suspected of having aided members of the so-called "Baader-Meinhof gang" to escape punishment, in particular the former barrister Mahler who was wanted for attempted murder, by hiding them in an apartment.   Furthermore, she was suspected of having participated in three bank hold ups, committed on 29 September 1970 in Berlin. The Court stated that there was danger of the applicant trying to abscond because she was threatened with the possibility of a severe sentence of many years of imprisonment. The Court also pointed out that the applicant was in possession of a number of forged papers and had rented a second apartment under a false name.   In November 1970 the Investigating Judge seized some books which had been sent to the applicant. He stated that there was a danger that the applicant would create a disturbance in the prison by using the contents of the books for political propaganda and he pointed out that the applicant had already fixed a paper on her prison cell with the inscription "Death to capitalism and its servants" and "Solidarity with Canadian liberation".   The investigations were first carried out by the Public Prosecutor at the Regional Court (Staatsanwaltschaft bei dem Landgericht) in Berlin. At the beginning of 1971 the case was taken over, because of its importance, by the Attorney-General at the Federal Court (Generalbundesanwaltschaft beim Bundesgerichtshof).   On 1 April 1971 the Investigating Judge (Ermittlungsricther) of the Federal Court amended the District Court's warrant of arrest to the effect that, insofar as the applicant had been suspected of having aided persons who were wanted for attempted murder to escape punishment, she was now suspected of having been a member of a criminal organisation (Article 129 of the Criminal Code) namely the Baader-Meinhof gang.   The judge stated that, according to the result of these investigations, there was strong suspicion that this gang had committed several hold ups and other crimes and that the applicant belonged to the inner circle of the gang. She had rented an apartment in Berlin under a false name which had served as a hiding place for the members of the gang. In September 1970 she had rented several cars by presenting stolen or forged documents to the hirers. The cars had then been used by the members of the gang and had not been given back. At her arrest the applicant was found in possession of a forged motor vehicle registration card (Kraftfahrzeugschein). The car which was registered under the forged card was parked nearby. Furthermore, the applicant was carrying a loaded pistol.   The judge concluded that, in view of the applicant's close relationship with other members of the underground organisation who had not yet been arrested and in view of the gravity of the criminal acts of which she was suspected, there was danger that she would try to abscond (Fluchtgefahr). He was further of the opinion that the applicant's conduct in prison proved her intention to suppress evidence and to influence witnesses and her co-defendants in order to hinder the investigation proceedings (Verdunklungsgefahr).   On 23 April 1971 the Federal Court, after having heard the Attorney-General and the applicant's defence counsel, ordered the applicant's further detention. The Court first rejected her counsel's argument that it was not competent to deal with the criminal offenses committed in Berlin. It then stated that the detention was justified for the grounds already given in the warrant of arrest and in the above-mentioned decision of the Federal Court' Investigating Judge. The Court pointed out that it was likely that the applicant would, if she were released, receive forged papers from other gang members not yet arrested and that consequently the only way to prevent her absconding was to keep her in prison. In the Court's opinion a detention exceeding six months was justified because the case was extremely complex and very difficult to investigate.   By order or 2 July 1971 the Investigating Judge stopped a letter written by the applicant because he considered that it contained distorted statements concerning the system of detention on remand. In a decision of 8 July 1971 the Investigating Judge approved of certain security measures which had been taken against the applicant by the director of the prison in Cologne-Ochsendorf. The applicant had been transferred to this prison and for seven days was not allowed to walk in the open air because she had disobeyed the warders and had tried to incite a riot.   On 29 July 1971 the Federal Court again ordered that the applicant's detention on remand should continue. It pointed out that the reasons stated in the previous decisions of 9 October 1970, 1 April 1971 and 23 April 1971 were still valid and added that the investigations carried out in the meantime had strengthened the existing suspicion against the applicant and that consequently the danger that the applicant would try to abscond still existed. The Court stated that the length of her detention pending trial was justified because extremely extensive investigations had to be carried out and the applicant's silence made these investigations even more difficult. The Court finally stated that the length of detention was in proportion to the severity of the charges and the sentence to be expected by her.   The Federal Court repeated these grounds in a further decision of 15 November 1971.   At the beginning of 1972 the applicant was re-transferred to a prison in Berlin and her case was on 1 February 1972 again taken over by a Public Prosecutor (Generalstaatsanwalt) at the Berlin Regional Court.   By decisions of 9 March, 4 April and 27 April 1972, the competent judge stopped correspondence addressed to the applicant because the contents were considered to be objectionable.   On 25 February 1972 the Berlin Court of Appeal (Kammergericht) decided that the applicant's detention on remand should continue. The Court stated that, according to the results so far obtained in the investigation proceedings and contrary to the allegations of the applicant's defence counsels, the applicant was still strongly suspected of having been a member of a criminal organisation, of being an accomplice to aggravated robbery, of having forged documents and of possessing a weapon without a licence. According to the Court, these suspicions were mainly based on the statements of a former gang members and appeared to be credible as they were confirmed by various other evidence. The Court was convinced that the applicant belonged, according to the evidence so far obtained, to the inner circle of the gang because she had been given a cover name and was equipped with a weapon. Consequently, in the Court's opinion, she had known, and approved, of the gang's plan to rob three banks in September 1970 and there was strong suspicion that her part in the robbery had been to provide the get-away cars which she had rented by fraudulent means in West Germany and had taken to Berlin. Like the Supreme Court, the Court of Appeal was of the opinion that there was danger that the applicant would try to abscond because she had to expect a severe sentence. The Court left the question open as to whether there was still danger of suppression of evidence (Verdunklungsgefahr) by her.   The Court further stated that, even if the applicant's allegation were true that there had been no new investigations carried out for some time, there had been no delay in the handling of her case because it took time to scrutinise the evidence already obtained. Finally, the Court mentioned that it could see no reason to grant the applicant an oral hearing before giving its decision.   On 17 April 1972 the Public Prosecutor filed the indictment (Anklageschrift) against the applicant and other alleged gang members. The applicant was accused of having been a member of a criminal organisation, of armed robbery committed with others and of illegal possession of weapons and munition.   By orders of 2 June 1972 and 6 September 1972 the Berlin Court of Appeal decided that the applicant must remain in prison.   The trial against the applicant and several co-accused began on 24 November 1972. It is still pending but at present is in its final phase, the prosecution having made their final plea (Anträge).   II.   COMPLAINTS   The applicant complained about the length of her detention pending trial and alleged a violation of Article 5 (3) of the Convention.   She alleged that by the length of her detention and the measures taken against her in prison (restriction of correspondence, of visits, of reading material, severe disciplinary punishment, constant observation even at night) the authorities were trying to break her resistance and to make her admit to having committed the alleged crimes.   She stated that the first delay in the investigation proceedings was caused by the fact that her case was taken over by the Federal Attorney at the end of February 1971. This was done, so she alleges, because only the Federal Attorney was competent to undertake investigations against all the members of the Baader-Meinhof gang with the assistance of a special commission formed for this purpose at the Federal Criminal Office (Bundeskriminalamt). She admitted that it was probably expedient to centralise the investigations but she was of the opinion that her proceedings should not have been delayed for the sake of investigations carried out against others.   In her opinion there was, at no stage in the proceedings, enough evidence to give rise to the suspicion that she had participated in hold-ups or had been a member of a criminal association.   She alleged that her defence counsels were before October 1971 not allowed to examine the files concerning the investigation proceedings and could therefore not effectively appeal against the Court decisions prolonging her detention on remand.   She alleged that her transfer on 15 May 1971 to West Germany, where she was, according to her statements, detained successively in several prisons, also hindered her defence counsels considerably.   The applicant pointed out that investigation proceedings against Horst Mahler, who was arrested at the same time as herself, had already been terminated in July 1971 and the trial against him had started on 8 October 1972, although he had likewise refused to make any statements concerning the charges laid against him. The proceedings against another member of the gang, Heinz Ruhland, had allegedly been carried out even more quickly. He had been arrested on 20 December 1970 and convicted on 15 March 1972, inter alia, of aggravated robbery. The applicant admitted that Ruhland had accelerated the proceedings by his own statements but she pointed out that the charges laid against him had been much more complex that the charges laid against herself.   The applicant alleged that Ruhland was the principal prosecution witness in her case and that he had stated, in February 1971, that she was a member of the gang and that, to his belief, certainly participated in the hold-ups. The applicant concluded that consequently the investigation proceedings could have been terminated in February 1971 and in fact, so she alleged, no further investigations had been carried out after February 1971.   A further enormous delay was according to the applicant, caused by the re-transfer of her case to the Berlin prosecution authorities which were no longer familiar with the files.   The applicant alleged that the evidence obtained in the investigation proceedings at best justified a reasonable suspicion that she had fraudulently rented cars and illegally carried a weapon but no more. Not even the Public Prosecutor alleged that she had directly and actively participated in the hold-ups. This confirmed, in her opinion, that there was no proof that she knew about the hold-ups or approved, and assisted in, them.   The applicant further denied that there was danger of her trying to abscond. She stated that, according to the jurisdiction of the European Court of Human Rights, the severity of a possible sentence to be expected cannot alone justify the supposition that an accused would try to abscond. There were no further circumstances so she stated, which justified her detention. On the contrary, even if eventually she were severely sentenced, the two years which she had so far spent in prison pending trial would be credited towards the sentence and she had therefore no reason to abscond.   The applicant finally alleged that the complexity of a case cannot justify the keeping of a person in prison for years. She alleged that her case is not so complex and could have been dealt with as speedily as that of Ruhland and Mahler.   As regards domestic remedies, the applicant stated that while her case was being dealt with by the Berlin courts she could not appeal to the Federal Constitutional Court.   The applicant stated that she had never been convicted and sentenced and still had the possibility to work in her profession. The longer, however, she was kept in prison and in isolation, the more irreparable the damage caused to her personality would be. She therefore requested the Commission to direct the German authorities to release her immediately.   She also requested the Commission to give her case precedence.   III. PROCEEDINGS BEFORE THE COMMISSION   On 9 February 1973 a group of three members of the Commission made a preliminary examination of the applicant's complaints in accordance with Rules 34 and 35 of the Commission's Rules of Procedure (former version). The group's report was considered by the Commission on 11 July 1973 and the Commission decided that, in accordance with Rule 46, 2b of the Rules of Procedure, notice should be given to the Government of the Federal Republic of Germany of the application and that the Government should be invited to submit their observations in writing on the admissibility of the application.   The Government's observations dated 11 October 1973, were received on 15 October 1973. The applicant's reply dated 26 October 1973 was received on 30 October 1973.   The Commission again examined the application on 4 April 1974 and found that the information contained in the case-file was still not sufficient for it to reach a decision on admissibility. It therefore decided, in accordance with Rule 46, 2 of the Rules of Procedure, to invite the parties to make oral explanations on the admissibility at a hearing which took place on 28 and 29 May 1974.   IV.   SUMMARY OF SUBMISSIONS OF THE PARTIES   1.    For a better understanding of the applicant's case the respondent Government first gave an outline of the development and the criminal activities of the Baader-Meinhof group of which the applicant is, according to the indictment, a member.   After the disintegration of the anti-authoritarian student movement of 1967-68, some of their participants in the Federal Republic of Germany thought they could bring about social changes by terror and violence alone. On 2 April 1968 Andreas Baader, Gudrun Ensslin and two others set fire to a department store in Frankfurt. On 31 October 1968 they were sentenced for this offence to three years' imprisonment. In May 1970 Baader was liberated by armed force. In summer 1970 Baader, Ulrike Meinhof, Horst Mahler and others went to Jordan in order to undergo a training in a guerilla camp. They were instructed in the use of firearms, close combat with knives and bayonets, as well as the chemistry and techniques of explosives, as the Berlin Court of Appeal found in its judgment of 26 February 1973 against Mahler.   In August 1970 the group, which had returned to Germany, began forming an armed underground organisation, later called "Rote Armee Fraktion (RAF)" (Red Army Fraction). The applicant is charged with having participated in founding this organisation. Its aim, accepted by all members, was to fight, like South American town guerrillas, with every means against the social conditions in the Federal Republic of Germany. The "Mini Manual of the Town Guerrilla" written by the Brazilian guerrilla leader Carlos Marighella served as a guide for the formation and equipment of the group. The author propagates a "merciless fight" against the "ruling class" and give examples of town guerrilla attacks on banks and other financial institutions, commercial and industrial enterprises, as well as the kidnapping of well-known persons, sabotage and terrorism, etc.   The actions and plans of the group conform to these ideas and proposals. All the measures indicate the establishment of a dangerous, secret organisation with criminal aspirations. This applies particularly to the renting of secret accommodation where the members could meet without danger. Further, the members' identities had to be disguised. For this purpose code names and falsified identification documents were used. In order to be able to carry out quick operation the group obtained cars by stealing or fraudulently renting them. In a workshop belonging to the Automechanic Grusdat - one of the applicant's co-defendants - these cars were changed in appearance. On 29 September 1970 the group robbed simultaneously three banks and got away with more than two hundred thousand German Marks.   On 8 October 1970 Horst Mahler, the applicant, and group members charged jointly with her, namely Birgit Asdonk, Irene Goergens and Ingrid Schubert, were arrested in a flat in Berlin which had been rented by Ulrike Meinhof under a false name.   The group members, who had not been arrested, continued the group's activities. Plans were made to liberate Mahler and the female members of the group. For Mahler's liberation Grusdat planned to construct a helicopter seating two persons. He did some preliminary work on the project.   Precise preparations were made for breaking into a weapons depot of the Federal armed forces. On 16 November 1970 and 21 November   1970 rubber-stamps, identity cards and passports were stolen from two town-halls.   Also in 1971 and 1972 the group continued their activities, especially by exploding bombs which resulted in deaths. In Hamburg, on 22 October 1971 a policeman, when arresting members of the group, and, on 3 March 1970, a CID officer were shot. In May 1970 six bombings are also attributed to the group. It is not impossible that remaining members of the group are still active today.   2.    The respondent Government, in their written observations on admissibility and at the hearing before the Commission then submitted their reasons why the application should be declared inadmissible. They first argued that the applicant had not exhausted domestic remedies. It was admitted that the applicant had no remedy against the order of the Berlin Court of Appeal. However, it was pointed out by the Government that the applicant had failed to lodge appeals against, inter alia, the warrant of arrest issued by the District Court of Tiergarten on 9 October 1970 and the orders of the investigating judge of the Federal Court. It was further pointed out that the applicant had the possibility of lodging a constitutional appeal against the orders of the Federal Court.   The Government argued that consequently the applicant had to a considerable extent failed to file such domestic remedies as could reasonably be expected of her and therefore had not exhausted all domestic remedies in the sense of Article 26 of the Convention.   3.    The Government also submitted that the application constituted an abuse of the right to petition. It was stated in this respect that the applicant's submissions were inconsistent with her behaviour during the trial proceedings. If she was really concerned about speedy proceedings, she would not during the trial, both inside and outside the court-room, continuously and persistently have disturbed and delayed the proceedings. The applicant showed that she intended to upset the criminal proceedings in any way she possibly could. It was apparently for this purpose that she introduced her application before the European Court of Human Rights, namely in order to achieve her unjustified release and thus to evade justice. The present application therefore served the purpose of frustrating criminal proceedings directed against her.   It was further pointed out in this respect that the applicant is accused of being a member of a fanatic group aiming to change the present social system by force, which first necessitated, according to a statement made by Ulrike Meinhof, the destruction of state, economic and social institutions. It was, however, not denied that the protection provided by Articles 5 and 6 of the Convention applied regardless of the crimes allegedly committed by any applicant invoking these provisions.   4.    The Government finally asked the Commission to reject the application as being manifestly ill-founded. It denied that there had been any unreasonable delay of the investigations against the applicant or of her trial.   In this connection the Government made the following detailed submissions:   (a)   Strong suspicion of the applicant having committed the crimes of which she was accused arose - if from nothing else - from the circumstances of her arrest:   whoever is arrested carrying arms and found in the hide-out of a criminal organisation is strongly suspected of having participated in the offenses committed by that organisation, particularly the bank hold-ups. This applied all the more as a piece of paper with the addresses of savings banks was found in the applicant's handbag. Furthermore, she carried a loaded pistol which had been fired when Baader was liberated. She also carried 50 DM bills in packets as is usual with banks.   In the course of the proceedings the strong suspicion has not disappeared but increased. The danger of the applicant's absconding if she were released still existed up to the present day. Before her arrest, the applicant may have lived in Berlin at an address she had registered with the authorities and may have worked in the office of the barrister who was now representing her in the proceedings. However, this was only a cover for her activities as a member of the group. When she was arrested she had false identity papers and keys to secret accommodation of the group. As the group remained active even after her arrest, going as far as considering plans for her liberation, it would not have been justified to release her. Considering her ideology, which is hostile to the law, as clearly appears from her conduct during the trial, she would not have kept herself at the disposal of the police for the trial but would have gone underground to continue her fight against the "capitalist class".   (b)   After the applicant's arrest the enquiries and investigations were properly conducted.   The proceedings were not delayed except by the applicant herself who refused to make any statement as to her identity and the charges laid against her.   The investigation of the offenses was difficult because they were cleverly planned and executed and because so many group members took part in them. Extensive enquiries had to be made in Berlin and North-Rhine-Westphalia.   It is true that on 20 December 1970 Ruhland was arrested and made a comprehensive confession which to a certain extent facilitated the investigations against the whole group. However, it is not correct that, in the spring of 1971 after Ruhland's interrogation, the investigations against the applicant could have been terminated.   Since the applicant herself made no statements, extensive, difficult and time-consuming investigations were necessary, such as interrogations of witnesses and the obtaining of expert opinions. Besides the interrogation of Ruhland was in no way completed in February 1971. As late as in October 1971 he was questioned about motor-cars alleged to have been hired by the applicant.   Moreover, as regards Ruhland's credibility, it was important to await the outcome of the criminal proceedings against him. He was convicted by the Court of Appeal in Düsseldorf on 15 March 1972 inter alia of aggravated robbery and participation in an criminal organisation.   Ruhland's confession and the results so far obtained in the investigations had revealed that the activities of the group were very dangerous and covered many parts of the Federal Republic of Germany. The applicant's case, as well as the cases of other group members, were therefore considered to be of special importance and had consequently in accordance with Section 74 a (2) of the German Judicature Act (GVG), obligatorily to be taken over by the Federal Attorney-General. The German Government pointed out in this context that they had obtained a written statement by the Federal Attorney-General denying the applicant's allegation that it had from the beginning been the intention to transfer her case back to the Public Prosecutor in Berlin. This retransfer, as the Government emphasised, was only effected after it had turned out in the course of the investigations that the applicant's case was of lesser importance. Therefore, the proceedings had to be retransferred in accordance with Section 42 a (4) of the German Judicature Act.   The transfer of the applicant herself successively to several West German prisons was explained to have been both in the interest of the investigation and for the security of her detention.   The Government denied that the transfer to the Federal Attorney-General and the retransfer of the applicant's case caused any delay. They pointed out that, after the retransfer of the applicant's case, the Senator for Justice assigned two prosecutors to deal with the case. Although   the results of the investigations now filled several files, the indictment was already filed on 17 April 1972.   It consisted of a main part of 128 pages and an appendix of 55 pages. It named 322 witnesses and 19 experts; besides this, numerous identity cards, motor-vehicle registration cards, registration plates, rent contracts for apartments and cars, keys, weapons and other items are listed as evidence.   The Government concluded that about one and a half years of investigations was not unreasonably long in view of the complexity and difficulty of the case.   (c)   It was also pointed out that, in order to speed up the proceedings the prosecution dropped several charges, such as eight counts of fraud, attempted fraud and forging of documents.   After the filing of the indictment the applicant had, in accordance with Section 201 of the Code of Criminal Procedure, to be given the opportunity to comment on the indictment. The delay for these comments having expired, the Regional Court in Berlin admitted the indictment by order of 30 June 1972, a decision which can only be considered to have been taken quickly. After all, under Section 201 of the Code of Criminal Procedure, the Regional Court of Berlin had to examine whether the six accused were sufficiently suspected of having committed the offenses with which they were charged.   (d)   The trial which started on 24 April 1972 needed careful preparation and, especially in view of the dangerousness of the defendant and group members still at liberty, special security measures had to be provided and structural work had to be carried out. The trial was held in a specially protected court-room which had first been prepared for the Mahler trial. For the trial against the applicant and her five co-accused the glass protection of the dock had to be altered because the proceedings involved not one but six defendants. The Government pointed out that this was the only specially protected court-room in Berlin.   It was first expected that the trial would last about nine months and the administrative authorities provided two supplementary judges and six supplementary lay judges in order to avoid possible delays, for example in case of the sickness of a judge sitting at the trial. The Government pointed out that the trial, which had now lasted eighteen months, caused an unusual stress for judges and for the prosecution who could take no leave during this time. Their families were constantly under police protection. Their children had to be taken to school under police protection. These inconveniences would have certainly been avoided by the officials concerned had they had the possibility of terminating the trial earlier.   All these necessary preparations explained why the trial could not start before 24 November 1972.   (e)   The trial itself had been conducted as speedily as possible. On an average the court sits on two days a week.   It was, according to the Government, irrelevant   that the trials of Ruhland and Mahler began before that of the applicant. When prosecuting a dangerous group consisting of many members, it was justified to proceed first against a member who had confessed and then against one of the group's leaders.   The trial was, according to the Government, on various occasions disturbed and delayed by the applicant's own conduct as well as by the conduct of her co-defendants:   e.g. all the defendants had to be identified by four witnesses because they even refused to identify themselves; on 5 January 1973, the defendants - including the applicant - disturbed the proceedings by making loud noises and shouting. They were, therefore, removed from the court-room in accordance with Section 247 (2) of the Code of Criminal Procedure (StPO). On 19 January 1973 the four female defendants wanted to leave the court-room. Together they knocked on the table and abused the Public Prosecutor. They were therefore again removed from the court-room. On 9 February 1973 evidence could not be taken because the accused had to be examined by an expert to see whether they were fit for trial in view of their hunger strike. On 6 March 1973 the defendant Schubert made a declaration manifesting all the defendants' approval of an armed attack by the terrorist organisation, Black September, against an embassy in Khartoum. The applicant also shouted "solidarity with the comrades of Black September". On 16 March 1973 the applicant and the other defendants again insulted the public prosecutors in the court-room and threw cheese at them. On another occasion they made a ball-point pen explode which they had stuffed with the sulphur taken from matches. From 8 May 1973 to 28 June 1973 the applicant again participated in a hunger strike. As a result the court sat only in the morning for two or three hours because it was feared that the defendant would not be fit to attend the trial during the whole day. On 22 June 1973 the applicant again refused to attend the trial. She had therefore to be taken handcuffed to the court-room. There she insulted the presiding judge saying:   "There is that swine again. We don't want this shit-show any longer...". She was then excluded from the trial during the taking of evidence.   Until 28 May 1974 the court say on 126 days during which 276 witnesses and 22 experts were heard, of whom some were heard several times. In order to speed up to the trial the prosecution renounced the hearing of a hundred further witnesses. On 9 April 1974 the taking of evidence was, with the agreement of the defence, terminated. The prosecution then put their case and requested a sentence of 12 years' imprisonment for the applicant. Thereupon the defence requested the trial court to hear further 49 witnesses and one expert. Two of these witnesses were heard. On 21 May 1974 the defence counsel began their pleadings and it was expected, according to the Government, that a decision will be given soon.   Apart from the conduct of the defendant, the original time-table of the trial court was also dislocated for the reason that many witnesses did not, for various reasons, appear on the dates fixed for their hearing. The defence counsel also caused delays. For example, they challenged (Ablehnungsanträge) judges or lay judges on eight occasions. All eight motions were rejected as being unfounded although this had necessitated time-wasting deliberations by the trial court. Five experts were likewise challenged but only one of these motions was successful. It also happened that defence counsel had to leave the proceedings earlier than had been arranged, thus obliging the trial court to suspend the proceedings. Furthermore, defense counsel made various other motions and lengthy declarations which delayed the proceedings, e.g. they requested a medical examination of their clients in order to find out whether they were still fit to attend the trial.   The costs of the trial amounted, so far, to two million German Marks.   5.    The applicant in her reply to the Government's written observations and submissions at the oral hearing first repudiated the respondent Government's argument that the conditions of Article 26 of the Convention had not been satisfied by her. She pointed out that detention pending investigation can be perfectly justified for a period of six months or even one year. During this time there was no cause for the detainee to exhaust all the remedies available to him against such detention. Such remedies would obviously have little chance of success and could therefore not be considered to be in the interest of a proper administration of justice. If the period of remand in custody was prolonged, however, it might cease to be compatible with the Code of Criminal Procedure. In such a case the detainee was entitled to have recourse to any effective legal remedy against the detention orders concerning him. Once the domestic remedies had been exhausted, it should then be possible to lodge an individual application.   6.    The applicant then denied that she had done anything to justify her being blamed for the protection of the proceedings against her. She alleged that she had merely made use of her right not to make any statements on the charge. The respondent Government's remaining factual statements amounted in her opinion to unfair abuse.   In this respect she pointed out that it could be of no relevance to her case that in the years 1971 and 1972 several people lost their lives as the result of actions ascribed to the "Red Army Fraction". For one thing, there was no proof that she was in any way connected with the persons thought to be responsible for those actions. Further, account should be given to the fact that, when those incidents took place, she had already been in prison for more than one or even more than two years.   The fact that at the time of her arrest she was in possession of a slip of paper bearing the addresses of two savings banks' branch offices in Berlin in no way proved that she participated in the planning and execution of bank robberies. In fact the two addresses were of saving banks where she had herself accounts.   She admitted that her conduct during the proceedings could not perhaps be said to have been inspired by a positive attitude towards the law but, considering what she had endured over the last three years, this was in her opinion hardly surprising.   The applicant denied that there was at any time in the proceedings strong suspicion of her having participated in the bank robberies. She pointed out that the indictment was in this respect only based on the alleged fact that, several months before her arrest, she had fraudulently rented several cars two of which were allegedly used at the bank robberies. There was, however, no evidence that she drove either of these cars or that she was in any other way directly involved in the bank robberies.   The applicant maintained that the investigation against her could have been terminated in summer 1971, as it followed from the files that all evidence which was later listed in the indictment had been collected by then. She further pointed out that, in a report to the Federal Court made in July 1971, the Federal Attorney-General stated that the investigation would be terminated soon. Furthermore, she pointed out that Ruhland's trial had already started on 18 January 1972 although he was not only accused of the same offenses as herself, but of further offenses committed after her arrest. The fact that his trial started many months before her own trial could therefore, in her opinion, not only be explained by Ruhland's confession. Also Mahler, who like herself refused to make any statement, was brought to trial much earlier, although he was arrested on the same day as she had been. The applicant alleged in this respect that the indictment against Mahler was 95% the same as her indictment. This proved that no further investigation had been necessary against her than had been undertaken in the case of Mahler.   The applicant denied that there had been any necessity to transfer her case to the Federal Attorney-General. She pointed out that Mahler himself had not been taken to West a German prison. She had been given special treatment in West German prisons, as she was completely isolated although she was never needed for the investigations which were supposed to have been carried out in West Germany. The applicant alleged that the transfer of her case and other cases to the Federal Attorney-General was only effected because, in January 1971, bank robberies took place in West Germany. Because of these robberies the investigations of the police were centralised in the Federal criminal office. These robberies and another incident, which took place later in Frankfurt, were the true reason for the transfer of the cases to the Federal Attorney-General as it was supposed that the Red Army Fraction was involved. In her opinion, this did not, however, justify her transfer because she was already in prison when these offenses were committed. As regards the security measures which necessitated a special preparation of the court-room, the applicant pointed out that the court-room had already been prepared for the Mahler trial and was ready long before her trial began. In addition, she stated that such preparations could not justify a prolongation of her own detention.   As regards the trial proceedings, the applicant alleged that the summoning of many witnesses was superfluous as it was known beforehand that certain witnesses would not make any relevant statements, for example, those witnesses who had already been summoned to appear at the Mahler trial when they refused to answer questions from the court. The applicant did not deny that she made objectionable remarks which led to her exclusion from the trial. But she denied that this caused any considerable delay and she stated, furthermore, that her behaviour was provoked by the judicial authorities. For example, she stated that on one occasion the president of the Trial Court ordered that all female defendants should undergo a gynaecological examination before being permitted to the court-room simply because they had once thrown cheese at the members of the court. She alleged that the only factor which could be attributed to her as having caused a delay was her state of health which had deteriorated in consequence of her strict isolation in the West German prisons. The applicant stated, however, that she did not complain to the Commission about the conditions in the prison as these conditions had in the meanwhile been improved and she saw no longer any reason to raise this point as a separate complaint before the Commission.   The applicant further denied that she caused delay by making unnecessary and obviously unfounded motions. She pointed out that such motions could be rejected by the court on the basis of the Code of Criminal Procedure on the sole ground that they were obviously only serving the purpose of prolonging the proceedings. However, the court, as actually happened, took considerable time to deliberate on these motions and this only proved that these motions were not obviously unfounded.   V.    THE LAW   The applicant's sole complaint is that the period of her detention on remand constituted a violation of Article 5 (3) (Art. 5-3) of the Convention which provides that:   "Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (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. Release may be conditioned by guarantee to appear for trial."   1.    The Commission has first considered the question whether the applicant has exhausted all domestic remedies as is required by Article 26 (Art. 26) of the Convention.   The term "all remedies" in the text of this provision refers to the case where the domestic law provides against some measure or decision a single series of remedies at various levels, such as appeal to a court of appeal, further appeal to a supreme court and, possibly, a constitutional appeal. In such a case where there is a single remedy it should be pursued up to the highest level. The position is not so certain where the domestic law provides a number of different remedies. In such cases the Commission tends to admit that Article 26 (Art. 26) has been complied with if the applicant exhausts only the remedy or remedies which are reasonably likely to prove effective (see e.g. the decision on admissibility of application o. 2686/65, Yearbook, Vol. X, page 495).   On the other hand, Article 26 (Art. 26) does not have the scope attributed to it by the respondent Government in cases where the domestic law provides a single remedy against a particular measure, but allows the person in question to make use of this remedy as often as he feels inclined and at intervals left entirely, or to a great extent, to his discretion throughout the time the measure in question remains in force. Such, in fact, is the position in the present case. Under the rules of criminal procedure in the Federal Republic of Germany persons in detention on remand may at any time apply for provisional release (see Section 117 (1) of the Code of Criminal Procedure - StPO). The Code of Criminal Procedure imposes no restrictions on the exercise of this remedy. Nor, on the other hand, does it require the detained person to make a minimum use of the remedy. Furthermore, the competent six months, decide ex officio and at regular intervals whether that detention should continue. There is no possibility of an appeal or a constitutional appeal against such decision if, as in the present case, it is given by the Berlin Court of Appeal. It follows that the Commission cannot accept the respondent Government's submission that the conditions of Article 26 (Art. 26) of the Convention are not met simply because the applicant has not appealed against this or that particular decision ordering her detention on remand or the continuation of such detention. Nor can the Government rely on the fact that the applicant has not taken advantage of the possibility temporarily open to her of bringing the matter before the Constitutional Court. In fact she was later deprived of this possibility by the retransfer of her case to the West Berlin prosecuting authorities.   It was sufficient for the purpose of Article 26 (Art. 26) of the Convention that the applicant exhausted at any time she though fit the domestic remedies existing at that time. This requirement is entirely satisfied. Prior to the lodging of the present application with the Commission on 9 October 1972, the Berlin Court of Appeal had, in three decisions not subject to appeal, refused to order the applicant's provisional release. The last of those decisions as taken on 6 September 1972.   2.    The Commission next considered the respondent Government's submission that the application was inadmissible under Article 27, paragraph (2) (Art. 27-2), of the Convention as being an abuse of the right of petition. The Commission does not accept this submission. According to the Commission's case-law an abuse can be seen in the use by the applicant of, e.g.:   - insulting remarks (see decision on admissibility of application No.   2625/65, Collection of Decisions, Vol. 28, page 26, 41); - completely specious arguments (see decision on admissibility of   application No. 3141/67, Collection of Decisions, Vol. 27, page 117); - false statements intended to mislead the Commission (see decision on   admissibility of application No. 2364/64 and others Collection of   Decisions, Vol. 22, page 103, 109); - completely unfounded allegations whose purpose was to escape   consequences of a conviction (see decision on admissibility of   application No. 1270/61, Collection of Decisions, Vol. 8, page 97).   None of these grounds appear in the present case. It is true that the applicant has, according to the undisputed statements made at the oral hearing by the representatives of the respondent Government, behaved in an objectionable manner at her trial. However, her submissions to the Commission were not objectionable and her behaviour before the Trial Court cannot be considered to constitute an element of abuse in the context of her complaint, under Article 5 (3) (Art. 5-3) of the Convention, that she was not brought to trial within a reasonable time.   The respondent Government also argued that the applicant was attempting by every means to frustrate the prosecution directed against her and that it was apparently for this purpose that she lodged an application with the Commission, her intention being to obtain an unjustified release as a means of escaping prosecution.   It is obvious that the danger of the prisoner absconding is one of the principal justifications for her detention on remand. Nevertheless, the existence of such a danger cannot justify the continuation of detention beyond the reasonable time mentioned in Article 5 (3) (Art. 5-3) of the Convention. Therefore, the applicant was not abusing her right of petition in asking the Commission to examine the question whether the period of her detention pending trial was reasonable within the meaning of this provision.   The Commission finds therefore that the application cannot be declared inadmissible as being an abuse of the right of petition under Article 27 paragraph (2) (Art. 27-2), of the Convention.   3.    According to the case-law of the European Court of Human Rights (see Wemhoff case, judgment of 27 June 1968, page 23), the period with which Article 5 (3) (Art. 5-3) of the Convention 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. According to the respondent Government, the trial court's decision in the applicant's case will be given in the near future, the taking of evidence having been concluded and the prosecution having made their final plea (Antrag).   The period in question consequently amounts to a little more than three years and seven months. This is undoubtedly an exceptionally long period of detention on remand. However, the length of detention on remand is not by itself decisive in the context of Article 5 (3) (Art. 5-3) of the Convention because the concept of a "reasonable time" cannot be translated into a fixed number of months or years (see European Court of Human Rights, Stögmüller case, judgment of 10 November 1969, page 40). The reasonableness of an accused person's continued detention must rather be assessed in each case according to its special features (Wemhoff case, ibid, page 24) and the Commission has to judge whether the reasons given by the national authorities to justify the applicant's continued detention were relevant and sufficient to show that detention was not unreasonably prolonged (see European Court of Human Rights, Neumeister case, judgment of 27 June 1968, page 37).   The German courts based their decisions, ordering the applicant's original arrest and subsequently her detention, on the ground that there was a danger of her absconding if she were left at liberty. They pointed out in this respect that the applicant might expect a heavy sentence and that, at her arrest, she was in possession of forged papers and had rented an apartment under a false name. The latter findings were not contested by the applicant before the Commission. At the oral hearing it was furthermore mentioned by the Agent of the responde