CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 décembre 1987

.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 }  AS TO THE ADMISSIBILITY OF   Application No. 11703/85 by N.D. against Federal Republic of Germany           The European Commission of Human Rights sitting in private on 9 December 1987, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H.C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 8 August 1985 by N.D. against the Federal Republic of Germany and registered on 21 August 1985 under file N° 11703/85;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having regard to the observations submitted by the respondent Government on 4 February 1987;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the parties, may be summarised as follows.           The applicant is a Yugoslav citizen, born in 1949.   He is a businessman.   When introducing his application the applicant was detained on remand in a prison in Düsseldorf.   In the meanwhile he has left the Federal Republic of Germany.   Before the Commission he is represented by Mr.   Norbert Respondeck, a lawyer practising in Düsseldorf.           On 28 December 1981 the Yugoslav national D and the German national W jointly committed aggravated robbery in a private apartment in Mülheim-Ruhr.   They robbed cash, jewelry and diamonds to the value of about 40-50,000 DM.   During the investigations which commenced immediately after the robbery certain information appeared which linked the applicant to this robbery.   On 7 July 1983 the Duisburg Department of Public Prosecution therefore commenced investigations against the applicant.           Due to the outcome of the investigations against the applicant, detention on remand was ordered against him on 17 August 1983 on the basis of a warrant of arrest issued by the District Court (Amtsgericht) of Mülheim, the reasons being that he was strongly suspected of being involved in the aggravated robbery and that, in view of the severity of the sentence to be expected, he might attempt to flee.   At that time, the applicant was still serving a prison sentence for incitement to commit arson, pronounced by the Duisburg Regional Court (Landgericht) on 25 April 1983.   He was expected to be released on 7 March 1984, having served two thirds of it.   Until then, the detention on remand and the prison sentence were co-terminus (Überhaft).           On 22 December 1983 the applicant made a first request for a review of his detention pursuant to Section 117, sub-section 1 of the Code of Criminal Procedure (Strafprozessordnung - StPO).   He submitted that there was no strong suspicion of his having committed an offence. However, he withdrew his request at the hearing in the District Court of Mülheim on 5 January 1984.           On 24 January 1984 the Duisburg Department of Public Prosecution brought charges before the Grand Criminal Division of the Duisburg Regional Court (grosse Strafkammer des Landgerichts Duisburg) against the above-mentioned W and D for aggravated robbery, bodily injury and rape, and against the applicant for incitement to aggravated robbery.   The indictment was served on the applicant on 10 February 1984.           On 8 March 1984 the 14th Grand Criminal Division of the Duisburg Regional Court opened proceedings against the applicant and his co-accused.   At the same time the Court ordered that the detention on remand should continue for the reasons given in the warrant of arrest of 17 August 1983.           Proceedings against the co-accused, W, were separated from the rest of the complex on 8 March 1984.   Decisive for this step was the fact that W - at this stage of the investigation - had confessed. Consequently it was possible to conduct expedited proceedings against him.   On 12 April 1984 he was sentenced in a judgment of the Duisburg Regional Court, which has become final and binding, to an aggregate prison sentence of four years for rape and aggravated robbery.           On 9 March 1984 the applicant again requested a review of his detention pursuant to Section 117, sub-section 1 StPO.   There was, he claimed, no strong suspicion of his having committed an offence and, in particular, the incriminating statements made by the suspect who had confessed could not be relied upon.   Moreover, the applicant maintained that there was no danger of flight since he was expecting to be deported and had resigned himself to it.   In an order of 20 March 1984 the Duisburg Regional Court rejected the request, making reference to the warrant of arrest of 17 August 1983 and the indicment of 24 January 1984.           On 25 May 1984, the applicant requested his release again.   He maintained that the requirements for further detention on remand were not fulfilled.   Furthermore, he requested that his case be separated from the rest since the remaining investigation had nothing to do with the charge brought against him.           The Duisburg Regional Court decided on 29 May 1984 to prolong the detention.   The Court found that the investigations carried out so far revealed a justified reason to believe that he had committed the offence with which he was charged.   Furthermore, the Court found that there was a reason to believe that the applicant, if released, would abscond and that a continuing detention would not be disproportionate, having regard to the punishment to be expected, if convicted.           On 3 July 1984 the applicant appealed against this decision to the Court of Appeal (Oberlandesgericht) of Düsseldorf which, however, upheld the decision on 16 July 1984.           In the subsequent period, further ex officio reviews of the applicant's detention were conducted in pursuance of Sections 122 and 117 StPO on 16 August 1984 (Duisburg Regional Court), on 28 September 1984 (Court of Appeal of Düsseldorf), on 3 December 1984 (Duisburg Regional Court), and on 15 January 1985 (Court of Appeal of Düsseldorf).    The courts ordered the continuation of the detention on remand for the reasons already given.           In the meantime it turned out that the investigative proceedings against the co-accused D and the applicant, who denied their parts of the offences, required obtaining evidence from abroad.   On 12 June 1984 the Duisburg Regional Court, applying the Judicial Assistance Treaty of 1 October 1971 between the Federal Republic of Germany and Yugoslavia, made a request to the Yugoslav authorities for the service of a summons on three witnesses of Yugoslav nationality living in Yugoslavia.           On 20 July 1984 the Regional Court of Duisburg fixed the dates for the main hearing to be held from 4 to 21 February 1985.   The applicant protested against this arrangement.   He referred to the allegedly disproportionate length of detention and requested again that his case be separated from the rest.   The Court, however, rejected the applicant's protest on 27 August 1984 as being inadmissible.   The applicant sought no legal redress from this decision.           The applicant's trial commenced on 4 February 1985 before the Duisburg Regional Court.   During the trial the applicant's co-accused D named nine further witnesses living in Yugoslavia who would confirm that he, D, had been in Yugoslavia at the time of the offences.   In order to serve a summons on these witnesses too, in the form of a request for judicial assistance, the Court adjourned the main hearing on 13 March 1985.   The new dates for the main hearing were set down for the period from 9 December 1985 onwards.           In view of the date set for the second main hearing involving the applicant, he again submitted, on 18 April 1985, his request for release from detention.   In addition to his previous arguments he also pointed out that the reason for the adjournment of the case had nothing to do with his case.   It would, in his view, thus be unacceptable to continue the detention.   However, on 14 March 1985 the Duisburg Regional Court nevertheless ordered the continuation of the detention on remand.   This decision was upheld on 24 April 1985 by the Court of Appeal of Düsseldorf.           On 19 May 1985 the defence counsel for the applicant brought a constitutional complaint (Verfassungsbeschwerde) before the Federal Constitutional Court (Bundesverfassungsgericht) against the decision of the Court of Appeal of Düsseldorf of 24 April 1985.   He asserted primarily that the detention on remand was unjustified as there was no basis for a suspicion of an offence.   The duration of the detention on remand was, moreover, out of proportion to the offence of which the applicant was accused and to the sentence to be expected.   The length of the detention was furthermore attributable to avoidable delays in the proceedings.   In particular, the applicant's proceedings ought to have been separated from those of the co-defendants.           On 28 May 1985 three judges of the Federal Constitutional Court dismissed the applicant's complaint as it did not offer sufficient prospects of success.   The judges found that the reasons given by the Court of Appeal for the continuation of the detention were tenable and not arbitrary.   No avoidable delays in the proceedings could be identified.   Nor was there anything to indicate at that stage that continued detention on remand could be regarded as disproportionate.           In the subsequent period further ex officio reviews of the detention on remand were conducted on 10 July 1985 (Duisburg Regional Court), on 14 August 1985 (Court of Appeal of Düsseldorf), on 11 and 22 October 1985 (Duisburg Regional Court) and on 26 November 1985 (Court of Appeal of Düsseldorf).           The courts ordered the continuation of the detention on remand on the grounds already given.   The applicant did not bring further complaints before the Federal Constitutional Court.           On 9 December 1985 the hearing recommenced before the Duisburg Regional Court.   In the course of this hearing the Yugoslav witnesses intended to clear the name of the co-accused D.   Their statements, however, were disproved.   Judgment in the case was pronounced on 8 January 1986.   The co-accused D was convicted of aggravated robbery and rape, the applicant of incitement to aggravated robbery.   The applicant received a two-year prison sentence.    Pursuant to Sections 54 and 55 of the German Penal Code (Strafgesetzbuch-StGB) the Court fixed an aggregate sentence of three years and six months, the sentence for incitement to arson mentioned above being included. After deducting the period spent in detention on remand, a residual sentence of 122 days was left.   Nonetheless, on the day on which judgment was pronounced, the warrant of arrest was withdrawn and the applicant released.           The applicant appealed against the judgment on points of law. However, on 30 July 1986 the appeal (Revision) was dismissed as ill-founded by the Federal Court of Justice (Bundesgerichtshof).           On 3 February 1986 the applicant informed the authorities that he was returning to Yugoslavia.   On 12 February 1986 detention on remand on suspicion of tax evasion concerning more than 1,400,000 DM was ordered against the applicant in the form of a warrant of arrest issued by the Duisburg Regional Court.   As his place of residence is unknown, he has been declared a wanted person.       COMPLAINTS           The applicant complains that his detention on remand was unlawful since the requirements for such detention were not fulfilled. He refers in this respect to Article 5 para. 1 (c) of the Convention. Furthermore, he invokes Article 5 para. 3 of the Convention alleging that he was not brought to trial within a reasonable time.       PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 8 August 1985 and registered on 21 August 1985.           After a preliminary examination by the Rapporteur, the Commission decided on 13 October 1986 to bring the application to the notice of the respondent Government and to invite them to submit written observations on the admissibility and merits of the application, limited to the question whether the applicant was brought to trial within a reasonable time.           After an extension of the time-limit, the Government's observations were submitted on 4 February 1987.           The time-limit for the submission of the applicant's observations in reply expired on 7 April 1987 but no observations were received.   Neither did the applicant request an extension of the time-limit.           The Commission's Secretary's reminders of 24 April and 1 June 1987 remained unanswered.   In reply to the Commission's Secretary's third reminder of 22 July 1987 the applicant's representative informed the Commission on behalf of the applicant that he intended to pursue the application.   This point of view was maintained in the applicant's representative's letter of 25 August 1987 in which he referred to his submissions made prior to the registration of the application.   No other submissions in reply to the observations of the Government have been received.       SUBMISSIONS OF THE PARTIES           The Government           As to the admissibility           The applicant did, it is true, bring a constitutional complaint against the detention review order of the Düsseldorf Court of Appeal of 24 April 1985.   Following this constitutional complaint, however, he did not continue to exhaust domestic remedies.   Making an application does not mean that he no longer has to make use of all possible legal remedies (cf.   Eur.   Court H.R., Matznetter judgment of 10 November 1969, Series A no. 10 p. 33 para. 10).           The German courts must be given the opportunity of examining a possible violation of the Convention within the system of legal remedies they themselves offer and thus, where possible, of avoiding any such violation, particularly as the Convention is directly applicable law in the Federal Republic of Germany and the applicant can complain at any time before the German courts of its violation.           The applicant did not continue to exhaust domestic remedies after introducing his application.   He failed to bring another constitutional complaint before the Federal Constitutional Court against the decisions of the Düsseldorf Court of Appeal of 14 August and 26 November 1985 ordering the continuation of detention on remand. There was, however, good reason to do so.   The applicant cannot argue here that the remedy in question would have been doomed to failure right from the start.   On the contrary:   the Federal Constitutional Court, in its decision of 28 May 1985, explicitly stated that at the point in time when the decision was taken, there was nothing to indicate that the continuation of the detention on remand would be disproportionate.           This shows that the Federal Constitutional Court was reserving the right to examine again at a later date the proportionality of the detention on remand and, if necessary, to arrive at a different assessment.   This applies all the more as, under Section 117 sub- section 5 and Section 122 sub-section 4 StPO, there must be a further review by a court of the detention on remand every 3 months at the latest.   This means that the applicant ought to have taken recourse to the Federal Constitutional Court again at the latest on the expiry of a 3 month period, in other words, after the decision of the Düsseldorf Court of Appeal of 14 August 1985.   Thus, as regards the detention on remand from that point in time onwards, he failed to exhaust all domestic remedies.           As to the merits           The relevant date as regards the commencement of the period spent in detention is not the day of issue of the warrant of arrest - 17 August 1983 - but rather 8 March 1984, the day on which the applicant's prison sentence for incitement to arson was suspended on probation and the detention on remand in the present proceedings first became effective.   Until that point in time, the applicant's detention was justified by Article 5 para. 1 (a) of the Convention in that the applicant was serving a prison sentence following the final and binding judgment of the Duisburg Regional Court of 25 April 1983.   The detention on remand additionally ordered as a pure formality (Überhaft) did not constitute any further detriment pursuant to the regulation of detention on remand set out in Section 119 StPO.   Nor has he made a concrete submission as to any such additional grievance. For the period up to 8 March 1984, therefore, there are no grounds for invoking the protection offered by Article 5 para. 3 of the Convention.           The detention on remand ended on 8 January 1986 - the day of the judgment of the Duisburg Regional Court - with the withdrawal of the warrant of arrest and the release of the applicant.   The total duration of the detention on remand was thus 1 year and 10 months. The last 5 months of this period should not be considered here, however, due to failure to exhaust all domestic remedies.           According to the case-law of the European Court of Human Rights the factors to be examined concerning the question whether the time spent in detention was reasonable, are   -        whether the grounds for the domestic decisions justify the continuation of the detention on remand when one takes into account the opposing grounds of the applicant; and   -        whether the investigation and the criminal proceedings were conducted without avoidable delays.           The grounds for the detention orders were the strong suspicion of the commission of a crime and the danger of flight.   They are set out in detail in the orders of the Düsseldorf Court of Appeal of 16 July and 28 September 1984, to which reference is also made by the order of 24 April 1985.           Directed at the issue of a strong suspicion were firstly and primarily the objections lodged by the applicant against his detention.   There was, however, a strong suspicion of his having committed an offence.   The applicant was incriminated by the statements of the co-perpetrator W, and a witness, the one largely corroborating the other.   He was unable to adduce any plausible reasons as to why they should both want to incriminate him falsely. The suspicion against him was then finally confirmed by his final and binding conviction.           As to the danger of flight, the orders of the Düsseldorf Court of Appeal rightly pointed out that the applicant had to expect a sizeable prison sentence, in relation to which the length of the period spent in detention on remand was not disproportionate.   Robbery (pursuant to Section 249 StGB), particularly in the form of aggravated (armed) robbery, is reckoned under German law among the most serious of crimes and is punished by a term of imprisonment of not less than 5 years, and even in less serious cases pursuant to Section 250 sub-section 2 StGB, by a prison sentence of between 1 and 5 years. The incitement committed by the applicant is, under Section 25 StGB, punished on principle in exactly the same way as the offence itself. Accordingly, for incitement to aggravated robbery, the applicant was also sentenced to 2 years' imprisonment.           This penalty, which formed part of an aggregate penalty of 3 years and 6 months, had not been served in its entirety at the time of his release on 8 January 1986.   It was rather the case that a residual penalty of 4 months still remained.   Furthermore, at the point in time when the orders were made concerning the continuation of detention, and as long as the judgment on the applicant for incitement to robbery had not been passed, there was every reason to expect that the applicant would be punished even more severely.   The detention orders made by the Düsseldorf Court of Appeal are convincingly reasoned as regards the issue of the seriousness of the crime and the sentence to be expected, if one takes into account the circumstances which were then already known and also those which were foreseeable.   This is true, even if consideration is also given to the fact that the danger of flight decreases with the length of time already spent in detention on remand.           A continuation of detention on remand was also called for by the applicant's personal circumstances, in particular by the fact that he is a foreigner.   Given the circumstances as they were, the applicant had no good reason to expose himself to the risk of even a small residual penalty:   even if he did have ties with Germany, he was, on his own admission, still fully expecting to be deported very quickly, with the result that he had already broken off psychologically any ties he may still have had.   His determination to throw off any ties he still had was finally confirmed by his departure from the Federal Republic of Germany immediately after his release, without waiting for the result of the appeal on points of law against the judgment of the Duisburg Regional Court of 8 January 1986.           In examining the way in which the proceedings were conducted, the following criteria are the relevant ones according to the case-law of the European Court of Human Rights:   -        how difficult the proceedings are;   -        the kind of treatment accorded to the case, whereby there is on the one hand a particular imperative existing, especially in cases of detention on remand, to deal with the matter as quickly as possible, and on the other hand, a continuing duty to clear up the case carefully, in particular in favour of the accused;   -        the applicant's behaviour.           The difficulty of the present case does not lie in its complexity, but rather in the fact that a number of witnesses from abroad had to be heard, requiring their summoning through the time-consuming process of international judicial assistance.   If their statements had confirmed the alibi of the co-defendant D, they would also have made a decisive contribution to clearing the applicant's name, since his incrimination by the co-perpetrator W would no longer have been credible.   They were therefore indispensable to the proceedings.           The investigation proceedings conducted by the Department of Public Prosecution lasted approximately 5 months.   In view of the great number of interrogations to be carried out, visits to certain places and face-to-face meetings of persons involved, this is not excessive. Nor was the length here the subject of any complaint by the applicant.   On the contrary: he withdrew his request for a review of detention on 5 January 1984.           There was no delay in the main proceedings either.   It was not appropriate to sever the applicant's proceedings from the rest of the complex, as he himself wished, since the alibi witnesses named by D would indirectly have cleared the applicant's name too, and therefore needed to be heard as a measure in his favour.   The case of the co-perpetrator W was of a decisively different nature in this respect, since he had confessed.   The summoning of witnesses from Yugoslavia was inevitably time-consuming.   It was necessary here to prepare the summons, translate the request for the serving of the summons, and establish the competent Yugoslav authorities.   This required the use of official channels on both the German and the Yugoslav side.   Nor should one underestimate the time taken for postal delivery in Yugoslavia.   Lastly, it was also necessary to arrange an advance of travel expenses and allow sufficient time such that the journey to the Federal Republic of Germany might be both possible and reasonably expected of the Yugoslav witnesses.   Given these difficulties, the dates set down by the Duisburg Regional Court for the two main hearings were not unduly late.   A further speeding up of things was not possible.           In regard to the applicant's behaviour, it should not be overlooked that, through his persistent denials, he himself caused the delay.   Whilst he does enjoy, as an accused person, the uncontested right to make a denial, he must at the same time be aware of and accept the consequences of this to a certain degree.   In the present case, he had at all times in his own hand the possibility of achieving, through a confession, the immediate severance of his proceedings from those of the others and a swift judgment.             The Applicant           The applicant did not reply to the Government's observations (cf. PROCEEDINGS BEFORE THE COMMISSION).   The following is a summary of the applicant's submissions made on 8 August 1985, prior to the registration of the application.           As to the admissibility           The applicant has exhausted the domestic remedies available. He complained of his detention on remand and of its length to the Federal Constitutional Court which, however, rejected his complaints on 28 May 1985.   The application to the Commission was submitted on 8 August 1985 which is within a period of six months.   Accordingly the requirements under Article 26 of the Convention have been fulfilled.           As to the merits           According to Article 5 para. 3 of the Convention, everyone detained on remand is entitled to a trial within a reasonable time or to release pending trial.   Moreover, as in the case when a person is arrested, also the continuing detention requires a reasonable suspicion under Article 5 para. 1 (c) of the Convention.   It is already questionable whether the decisions of the courts fulfil this requirement.   According to the investigations carried out there was no reasonable suspicion that the applicant had committed the offences with which he is charged.   In any event a reasonable suspicion which could justify the continuing detention of the applicant was not at hand.           The length of detention exceeded what could be considered reasonable within the meaning of Article 5 para. 3 of the Convention. The period in question started on the day of the issuing of the arrest warrant, which was 17 August 1983.   It is true that the applicant at that time was in prison serving another prison sentence.   However, in such circumstances a prisoner is subjected to all restrictions which follow from detention on remand.   Accordingly 17 August 1983 should be considered as the starting point.           On 8 August 1985 (date of the present submissions) the applicant had thus been detained on remand for a period of almost 2 years (the applicant was subsequently released on 8 January 1986).           Whether this period of time is reasonable cannot be examined in abstracto.   However, as a considerable burden is placed on a person in detention on remand while his case is dealt with, it appears that a period of detention exceeding six months would be in conflict also with Article 6 para. 2 of the Convention.   It should also be noted that the respondent State as a general rule considers six months as a maximum period of detention.   An extension should only be allowed when special difficulties make this necessary.   An extension would not violate the Convention as such.   However, in cases of an exceptional extension the interpretation of Article 5 para. 3 should be very strict.           Detention on remand should only be allowed where proportionate and justified by the general interest.   An important element in this respect is first of all the objective difficulties of the investigations.   The applicant was a suspect only due to very questionable statements by his co-accused.   He had, however, always denied all charges.   The facts of the case were accordingly clear, which also follows from the fact that the case of the co-accused W was separated and determined quickly.           The applicant's requests for a separation of his case, however, were refused because he denied all charges and because more witnesses from Yugoslavia should be heard.   It should be noted in this respect, however, that these witnesses were called to clarify the situation of the co-accused D whereas they could not make any statements as to the alleged complicity of the applicant.           On the other hand the applicant had constantly requested that his case should proceed.   He did not in this respect do anything which could possibly extend the length of the proceedings.   Having regard therefore to the right to   be presumed innocent he had a right to demand that his case should be dealt with quickly.   On the other hand if this is not done and if the delays are caused by the authorities, then the applicant cannot be expected to accept his detention on remand.   This is even more obvious in a procedural system like that of the Federal Republic of Germany where it is possible, by separating a part of the case, to avoid an unreasonable length of the proceedings.           As a reason for the continuing detention of the applicant the risk of absconding has been invoked.   This fear originated from an anonymous letter in which this was indicated.   However, no attempts to escape have been made, and from anonymous letters it will not be possible to establish any reasons which could justify the detention on remand.   Furthermore, a risk of absconding has been assumed due to the fact that the applicant is a foreigner and that the punishment to be expected, if convicted, would be considerable.   The applicant, however, has lived in the Federal Republic of Germany since 1972 where he cohabited with a woman by whom he has a child.   As regards the expected punishment, it should be considered that the time spent in detention is counted towards the actual sentence and the reason to abscond therefore becomes less as time passes.   The applicant saw no reason to abscond due to any possible prison sentence, since the time he had already spent in detention would more or less outweigh it.           Furthermore it was possible to use less strict measures than detention on remand in order to prevent his escape.   This, however, has not been explored.           In these circumstances, the applicant is of the opinion that his right to a trial within a reasonable time has not been respected, in particular due to the fact that the competent authority has failed to proceed with the case with reasonable speed.       THE LAW   1.       The applicant has first complained that his detention was unjustified. The Commission has considered this complaint under Article 5 (Art. 5) of the Convention which secures everyone's rights to liberty and security of person and which allows a deprivation of liberty only in accordance with a procedure prescribed by law in the cases enumerated in paragraph 1 of this Article. These include inter alia the lawful detention of a person after conviction by a competent court (sub-paragraph a), and the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so (sub-paragaraph c).           The applicant's detention prior to the issuing of the arrest warrant on 17 August 1983 was based on his conviction of incitement to arson by the Duisburg Regional Court on 25 April 1983.   His detention on this basis ended on 7 March 1984 when he had served two thirds of his sentence.           The applicant has not complained of this title for his detention, and a complaint in this respect would in any event be inadmissible due to the six months rule in Article 26 (Art. 26) of the Convention as the applicant lodged his present application with the Commission only on 8 August 1985, that is, more than six months after the end of the above period of detention.   The Commission accepts that his deprivation of liberty during this period was covered by the terms of Article 5 para. 1 sub-para. a (Art. 5-1-a).           There remains the question of justification of the applicant's subsequent detention which was based on the warrant of arrest of 17 August 1983 and which was upheld throughout the various stages of the proceedings by numerous decisions by the courts, including the Federal Constitutional Court, until the applicant's release on 8 January 1986.           The Commission has considered this complaint under Article 5 para. 1, sub-para. c (Art. 5-1-c) of the Convention but it has found nothing suggesting that the applicant's detention could not have been justified under this provision.   The Commission therefore concludes that the applicant's complaints regarding the justification of his detention, insofar as they can be considered under Article 5 para. 1 (Art. 5-1), are manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant has furthermore complained of the length of his detention and has in this respect referred to Article 5 para. 3 (Art. 5-3) of the Convention which reads:      ...   "3.       Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article 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 guarantees to appear for trial. "      ...           As regards the period of time, the applicant has maintained that the starting point should be 17 August 1983 - the day of the issuing of the arrest warrant.   He was also serving prison sentence until 7 March 1984 but detention on remand is stricter than detention whilst serving a prison sentence and he was affected by that.           The Commission notes in this respect that the applicant has not submitted any information as to what extent restrictions were placed on him due to the arrest warrant of 17 August 1983.   Furthermore the Commission recalls that insofar as restrictions are imposed on a person already deprived of his liberty, they do not require additional justification under Article 5 para. 1 (Art. 5-1) of the Convention (cf. 7754/77, Dec. 9.5.77, D.R. 11 p. 216).           Article 5 para. 3 (Art. 5-3) of the Convention guarantees to everyone detained under Article 5 para. 1 sub-para. c (Art. 5-1-c) the right to trial within a reasonable time.   The provision is accordingly only applicable as long as the applicant's detention is exclusively based on Article 5 para. 1 sub-para. c (Art. 5-1-c).   The Commission recalls that the applicant was serving a prison sentence when the arrest warrant was issued and this ended on 7 March 1984.   Therefore Article 5 para. 3 (Art. 5-3) does not apply to the applicant's detention prior to that date as it was not effectively based on the arrest warrant but covered by the judgment of the Duisburg Regional Court pronounced on 25 April 1983.   The Commission therefore finds that the starting point of the applicant's detention on remand, to be considered under Article 5 para. 3 (Art. 5-3) of the Convention, is 8 March 1984.   However, to establish what time can still be considered as reasonable, it should be taken into account that the investigation could also take place during the detention based on Article 5 para. 1 (a) (Art. 5-1-a).           The applicant's detention on remand ended on 8 January 1986 when he was released from prison.   The respondent Government have, however, submitted that the time spent in detention on remand after 14 August 1985 should not be taken into consideration since the applicant did not, in regard to this period, exhaust the domestic remedies available to him.           As regards the period after 14 August 1985 and until he was released on 8 January 1986, it is true that the applicant did not submit further complaints to the Federal Constitutional Court. However, the Commission recalls that the applicant had on several occasions appealed against the decisions as to his continuing detention and, after 13 March 1985 when the dates for the continuation of the main hearing had been announced, protested against these dates.   When the Federal Constitutional Court thus rejected the applicant's complaint concerning the length of the detention on 28 May 1985 it was an ascertainable fact that the applicant's trial would not recommence until 9 December 1985.   In these circumstances the Commission finds that the applicant was not required to continue constantly to bring this question before the Federal Constitutional Court.   The Commission therefore considers that also the period from 14 August 1985 to 8 January 1986 is sufficiently covered by his complaint to the Federal Constitutional Court and its decision of 28 May 1985.   Therefore the Commission finds that it may proceed to examine the applicant's complaint covering the period until 8 January 1986.           It follows from the above considerations that the applicant's detention, to be considered under Article 5 para. 3 (Art. 5-3) of the Convention, lasted from 8 March 1984 until 8 January 1986;   that is a total of 1 year and 10 months.           The Commission and the European Court of Human Rights have on several occasions been called upon to interpret the above provision (e.g.   Eur.   Court H.R., Wemhoff judgment of 27 June 1968, Series A no. 7; Neumeister judgment of 27 June 1968, Series A no. 8; Stögmüller judgment of 10 November 1969, Series A no. 9; Matznetter judgment of 10 November 1969, Series A no. 10; Bonnechaux v.   Switzerland, Comm. Report 5.12.79, D.R. 18 p. 100 and Schertenleib v.   Switzerland, Comm. Report 11.12.80, D.R. 23 p. 137).           In the light of the case-law mentioned above, the Commission points out in the first place that, in determining in a given case whether or not the detention of an accused person exceeds a reasonable limit, it is for the national judicial authorities to seek all the facts arguing for or against the existence of a genuine requirement of public interest justifying a departure from the rule of respect for individual liberty.   The reasonableness of the duration of detention pending trial can thus not be judged in the abstract and it is essentially on the basis of the reasons given in the decisions on applications for release pending trial that the question whether or not there has been a violation of the Convention has to be determined.           Furthermore, even if the grounds relating to the public interest cited by the national judicial authorities are pertinent and sufficient to justify keeping a person in detention pending trial, that does not free the authorities from their obligations under the Convention if they themselves are seen to have prolonged the detention unreasonably.           In the present case the Commission recalls that the judicial authorities, in addition to the suspicion of his having committed an offence, relied mainly on the risk of absconding when justifying the continuing detention of the applicant.           In this respect the Commission refers to the above case-law according to which it is necessary to examine a whole set of circumstances - in particular the expectation of a heavy sentence in the case of conviction or the lack of well-established ties in the country, giving reason to suppose that the consequences and hazards of absconding will seem to him a lesser evil than continued imprisonment - in order to determine whether in a given case there is a risk of a person absconding.           In this case the Commission recalls that the applicant is a foreigner.   Although he had certain ties with the Federal Republic of Germany, he did not expect that he could remain there after having served his sentence and he had resigned himself to this.   Furthermore, according to the prosecution's case, the applicant's alleged offence made him liable to a severe sentence of imprisonment under the German Penal Code.   It is hardly possible in such circumstances to rule out the risk that a person will abscond.   In view of the various considerations set out above the Commission is satisfied that the judicial authorities had sufficient reason to fear that the applicant, once at large, would escape in order to evade justice.           It thus remains to be examined whether the German authorities displayed the special diligence required by the Convention in the case of a detained person.           The Commission recalls that the proceedings against the applicant and the co-accused opened on 8 March 1984, which is also the starting point of the period to be taken into consideration under Article 5 para. 3 (Art. 5-3) of the Convention.   It turned out that it would be necessary to summon witnesses from abroad for which reason appropriate requests were made on 12 June 1984.   The trial commenced on 4 February 1985 but was adjourned in March 1985 in order to summon further witnesses from abroad.   Having done this, the Regional Court recommenced the trial in December 1985 and gave judgment on 8 January 1986.           The Commission acknowledges that, in any criminal case, time must be allowed for all the routine work that the authorities carry out and which the documents only reflect indirectly.   The Commission has noted, however, that the applicant's trial did not start until 11 months after the proceedings opened in the Duisburg Regional Court. The Commission has furthermore noted that approximately 9 months passed from the day the trial was adjourned in March until it recommenced in December 1985.           The respondent Government have submitted that these delays were not caused by the complexity of the case but rather by the fact that a number of witnesses from abroad had to be heard, requiring their summoning through a time-consuming process of international judicial assistance.   It was necessary to prepare summonses, translate the request for the serving of the summons and establish the competent Yugoslav authorities through official channels.   It was also necessary to arrange an advance of travel expenses and allow sufficient time in order to enable the witnesses to appear.           The applicant has not disputed these facts nor has he maintained that the time spent for this purpose was excessive as such.   He alleges, however, that the statements of the witnesses in question were irrelevant in regard to his alleged acts for which reason his case could and should have been separated and finished quickly.           In this respect the respondent Government have submitted that it would not have been appropriate to separate the applicant's case from that of the co-accused since the statements of the witnesses to be heard would also be material to the outcome of the case brought against the applicant.           The Commission finds that a concern for speed cannot dispense the authorities responsible for the investigation or t