CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 janvier 1994

.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. 18999/91                       by J.I. P.                       against Germany         The European Commission of Human Rights (First Chamber) sitting in private on 12 January 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 9 October 1991 by J.I. P. against Germany and registered on 25 October 1991 under file No. 18999/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to :   -      the Commission's decision of 2 April 1992 to communicate the       application;   -      the observations submitted by the respondent Government, after an       extension of the time-limit, on 15 July 1992 and the observations       in reply submitted by the applicant on 27 July 1992 as well as his       further submissions of 9 August 1993;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as submitted by the parties, may be summarised as follows.         The applicant, born in 1955, is a Dutch national of Bulgarian origin.   He is resident in The Hague, Netherlands.   Before the Commission he is represented by Mr. H.-O. Sieg, a lawyer practising in Frankfurt.         On 29 October 1987 the Darmstadt District Court (Amtsgericht), in the course of criminal proceedings against another accused W., issued a warrant of arrest against the applicant.   The District Court considered that there was a reasonable suspicion that in 1985 the applicant had dealt in heroin of a considerable quantity, in that, on two occasions, he had arranged deals for the other accused W. in the Netherlands; the heroin was later imported into the Federal Republic of Germany.   The District Court, in this respect, relied on the statements of the other accused W.   It further assumed a danger of absconding on the ground that the applicant lived in the Netherlands.         The applicant was arrested on 26 January 1988, and informed about the arrest warrant by the Geldern District Court on 27 January 1988.   The applicant stated that, at the relevant time, he had been on holidays in Greece.   The applicant remained in detention on remand.   In the following proceedings he was represented by defence counsel.         On 14 April 1988 the Darmstadt Public Prosecutor's Office (Staatsanwaltschaft) preferred the indictment (Anklageerhebung) against the applicant on the charge of having dealt in drugs of a considerable quantity.         On 11 May 1988, in the course of appeal proceedings concerning the applicant's continued detention on remand, the Darmstadt Regional Court (Landgericht) quashed the arrest warrant.   The Regional Court found that, having regard to the applicant's alleged alibi, there was no longer a strong suspicion that he had committed the offences in question.   The applicant left for the Netherlands.         On 26 July 1988 the Darmstadt Regional Court, following further investigations concerning the applicant's alibi, quashed its decision of 11 May 1988 and reinstated the arrest warrant.   The arrest warrant was amended on 18 August 1988.         On 6 September 1988 the proceedings against the applicant were provisionally discontinued in view of his absence.         On 13 January 1989 the Darmstadt Regional Court, following a reminder of the Public Prosecutor's Office, committed the applicant for trial.         On 27 March 1990 the applicant was arrested in Belgium and extradited to the Federal Republic of Germany on 8 May 1990, and taken into detention on remand.         On 10 July 1990 the Darmstadt Regional Court ordered the applicant's further detention on remand.   On 23 August 1990 the Frankfurt Court of Appeal (Oberlandesgericht) ordered the applicant's continued detention.         On 6 November 1990 the Darmstadt Regional Court, upon a hearing, ordered the applicant's continued detention on remand.   The Court, having regard to the statements of W., who had meanwhile been convicted, and W.'s son, found a reasonable suspicion that the applicant had been involved in the drug deals in question.   His attempt to prove his alibi had failed.   In this respect, the Regional Court referred in detail to the result of inquiries at a German travel agency and the statements of witnesses named by the applicant.         On 9 November 1990 the Regional Court again committed the applicant for trial.         On 8 January 1991 the Frankfurt Court of Appeal ordered the applicant's continued detention on remand.         Furthermore, in January 1991 the Presiding Judge at the Darmstadt Regional Court inquired in how far two foreign witnesses were prepared to appear at the trial.   On 5 March 1991 the Regional Court decided to hear a Greek witness on the question of the applicant's alibi in proceedings on letters rogatory.         On 2 April 1991 the Regional Court, and on 13 May 1991 the Court of Appeal, prolonged the applicant's detention on remand.         The letters rogatory concerning the hearing of the Greek witness were translated into Greek on 2 April and sent on 23 May 1991.         On 18 July 1991 the Federal Constitutional Court (Bundesver- fassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) concerning the Court of Appeal's decision of 13 May 1991 on the ground that it offered no prospect of success.   The Constitutional Court noted the Court of Appeal's finding that the proceedings had been furthered and that delays had not been caused by grave mistakes of the judicial authorities, but had been due to the illness of the Rapporteur at the Regional Court.         On 20 September 1991 the Frankfurt Court of Appeal ordered again the applicant's continued detention on remand.         On 20 December 1991 the Frankfurt Court of Appeal quashed the arrest warrant of the Darmstadt Regional Court of 18 August 1988.   The Court of Appeal considered that the interference with the applicant's right to liberty was no longer proportionate.   It noted in particular that the charges against the applicant related to facts which had occurred a long time ago.   Furthermore, the applicant, having his family in the Netherlands, suffered particular hardship due to his detention in the Federal Republic of Germany.   Moreover, the date of his trial was uncertain, and it could not be assumed that, if he were convicted, his sentence would exceed the period of his detention on remand, which would have to be taken into account.   The applicant was released on the same day.         On 18 September 1992, in the proceedings under letters rogatory, the witness concerned was questioned in Greece.   COMPLAINTS         The applicant complains about the length of the criminal proceedings and his detention on remand.   He invokes Article 6 para. 1 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 9 October 1991 and registered on 25 October 1991.         On 2 April 1992 the Commission decided to communicate the application to the respondent Government for observations on the admissibility and merits.         On 15 July 1992 the Government submitted their observations after an extension of the time-limit.   The observations in reply by the applicant were submitted on 27 July 1992.   The applicant filed further submissions on 9 August 1993.   THE LAW         The applicant complains about the length of his detention on remand and also about the length of the criminal proceedings against him.         The Government submit that the application is inadmissible for non- exhaustion of domestic remedies on the ground that the applicant only lodged a constitutional complaint with the Federal Constitutional Court as regards the third of altogether four decisions prolonging his detention on remand, namely the Court of Appeal's decision of 13 May 1991.   He should have again lodged a constitutional complaint about the subsequent decision taken by the Court of Appeal on 20 September 1991.         The Commission notes that the applicant unsuccessfully complained with the Federal Constitutional Court about the third decision of the Frankfurt Court of Appeal to prolong his detention on remand, which had at that stage already lasted altogether more than thirteen months.   The Commission finds that the applicant was not required to bring the question of the reasonableness of the length of his detention on remand again before the Federal Constitutional Court (cf. no. 10965/84, Dec. 6.7.88, D.R. 56 p. 62; No. 11703/85, Dec. 9.12.87, D.R. 54 p. 116).   The application may not, therefore, be rejected for non-exhaustion of domestic remedies within the meaning of Article 26 (Art. 26) of the Convention.         Article 6 para. 1 (Art. 6-1), so far as relevant, provides that "in the determination ... of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time".         The applicant's complaint about the length of his detention on remand falls within the scope of Article 5 para. 3 (Art. 5-3), which provides that "everyone arrested or detained in accordance with the provisions of paragraph 1 (c) (Art. 5-1-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".         The Government, referring to the case-law of the Convention organs, argue that one problem of the case was to verify the applicant's alibi which involved the hearing of a witness abroad, that some delay in autumn 1990 was due to the applicant's request to postpone the date for hearing to review his detention on remand.   They submit that some periods of inactivity on the part of the judicial authorities was excusable or could have had good reasons, however, they accept that the Court of Appeal's decision of 20 September 1991, confirming the proportionality of the applicant's detention on remand at that time, was questionable. As regards the applicant's complaint about the length of the criminal proceedings, the Government also submit that experience showed that, in proceedings under letters rogatory with Greek authorities, it was not uncommon for more than one year to elapse until their termination.         The Commission finds that the applicant's complaints raise difficult issues of fact and of law which are of such complexity that their determination should depend upon a full examination of the merits.   These complaints cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring them inadmissible has been established.         For these reasons, the Commission, unanimously         DECLARES THE APPLICATION ADMISSIBLE,       without prejudging the merits of the case.   Secretary to the First Chamber        President of the First Chamber         (M.F. BUQUICCHIO)                       (A. WEITZEL)