CEDH · CASELAW;REPORTS;ENG — 5 juillet 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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                                FIRST CHAMBER                          Application No. 18999/91                                  J.I. P.                                   against                                   Germany                          REPORT OF THE COMMISSION                          (adopted on 5 July 1994)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1 - 6). . . . . . . . . . . . . . . . . . . . . . . . 1   II.    ESTABLISHMENT OF THE FACTS       (paras. 7 - 28) . . . . . . . . . . . . . . . . . . . . . . . 2   III.   OPINION OF THE COMMISSION       (paras. 29 - 49). . . . . . . . . . . . . . . . . . . . . . . 5         A.    Complaints declared admissible            (para. 29) . . . . . . . . . . . . . . . . . . . . . . . 5         B.    Points at issue            (para. 30) . . . . . . . . . . . . . . . . . . . . . . . 5         C.    The alleged violation of Article 5 para. 3            of the Convention            (paras. 31 - 40) . . . . . . . . . . . . . . . . . . . . 5              CONCLUSION            (para. 41) . . . . . . . . . . . . . . . . . . . . . . . 7         D.    The alleged violation of Article 6 para. 1            of the Convention            (paras. 42 - 46) . . . . . . . . . . . . . . . . . . . . 7              CONCLUSION            (para. 47) . . . . . . . . . . . . . . . . . . . . . . . 8         E.    Recapitulation            (para. 48 - 49). . . . . . . . . . . . . . . . . . . . . 8   APPENDIX : DECISION ON THE ADMISSIBILITY OF THE APPLICATION . . . . 9   I.     INTRODUCTION   1.     The present Report concerns Application No. 18999/91 by J.I. P. against the Federal Republic of Germany, introduced on 9 October and registered on 25 October 1991.   2.     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.         The Federal Republic of Germany are represented by their Agent, Mr. J. Meyer-Ladewig, Ministerialdirigent, of the Federal Ministry of Justice.   3.     On 2 April 1992 the Commission communicated the applicant's complaint about the length of his detention on remand and of the criminal proceedings against him.   Following an exchange of memorials, the complaint relating to the length of his detention on remand (Article 5 para. 3 of the Convention) and to the length of the proceedings (Article 6 para. 1 of the Convention) were declared admissible on 12 January 1994.   The decision on admissibility is appended to this Report.   4.     Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 5 July 1994 in accordance with Article 31 para. 1 of the Convention, the following members being present:              MM.    A. WEITZEL, President of the First Chamber                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV   5.     In this report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by the German Government.   6.     The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   II.    ESTABLISHMENT OF THE FACTS   7.     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 a considerable quantity of heroin, 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.   8.     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 ensuing proceedings he was represented by defence counsel.   9.     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.   10.    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.   11.    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.   12.    On 6 September 1988 the proceedings against the applicant were provisionally discontinued in view of his absence.   13.    On 13 January 1989 the Darmstadt Regional Court, following a reminder of the Public Prosecutor's Office, committed the applicant for trial.   14.    On 27 March 1990 the applicant was arrested in Belgium and extradited to Germany on 8 May 1990, and taken into detention on remand.   15.    On 10 July 1990 the Darmstadt Regional Court ordered the applicant's further detention on remand.   16.    On 23 August 1990 the Frankfurt Court of Appeal (Oberlandes- gericht) ordered the applicant's continued detention.   The Frankfurt Court of Appeal found that, having regard to the indictment against the applicant and the evidence referred therein, there was a reasonable suspicion that he had committed the drugs offences in question. Moreover, there was a risk of the applicant's absconding as he had his place of residence in the Netherlands and had to face possibly an important prison sentence.   17.    The next hearing before the Darmstadt Regional Court to review the applicant's detention was scheduled for 23 September 1990, but, due to repeated requests by the applicant's representative for postponement, could only take place in November 1990.   18.    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.   19.    On 9 November 1990 the Regional Court again committed the applicant for trial.   20.    On 8 January 1991 the Frankfurt Court of Appeal ordered the applicant's continued detention on remand.   The Court of Appeal referred to its earlier findings as to the reasons for the applicant's detention on remand.   It also noted that there had been further investigations as to the applicant's statements on his alibi.   21.    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.   22.    On 2 April 1991 the Regional Court, and on 13 May 1991 the Court of Appeal, prolonged the applicant's detention on remand. The Court of Appeal again referred to its earlier findings and noted that the proceedings had been furthered, in particular with regard to the proceedings under letters rogatory.   Some delay had been due to the illness of the Judge, who was rapporteur in this case, this could not be regarded as grave mistake of the judicial authorities.   The applicant had to bear the delays caused by the proceedings under letters rogatory.   23.    The letters rogatory concerning the hearing of the Greek witness were translated into Greek on 2 April and sent on 23 May 1991.   24.    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. 25.    On 20 September 1991 the Frankfurt Court of Appeal ordered again the applicant's continued detention on remand.   The Court of Appeal noted that meanwhile the letters rogatory had been sent to the Greek authorities.   26.    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.   27.    On 18 September 1992, in the proceedings under letters rogatory, the witness concerned was questioned in Greece.   28.    According to the Government, the Darmstadt Regional Court may hold an oral hearing in the applicant's case before the end of 1994.   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   29.    The Commission has declared admissible the applicant's complaints     -      that the length of his detention on remand exceeded a reasonable       time;   -      that his case was not heard within a reasonable time.   B.     Points at issue   30.    The points at issue are   -      whether there has been a violation of Article 5 para. 3       (Art. 5-3) of the Convention;   -      whether there has been a violation of Article 6 para. 1       (Art. 6-1) of the Convention.   C.     The alleged violation of Article 5 para. 3 (Art. 5-3)       of the Convention   31.    The applicant complains under Article 5 para. 3 (Art. 5-3) of the Convention about the length of his detention on remand.         Article 5 para. 3 (Art. 5-3), so far as relevant, provides as follows:         "Everyone arrested or detained in accordance with the provisions       of paragraph 1 (c) of this Article ... shall be entitled to trial       within a reasonable time or to release pending trial."   32.    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. Moreover, some delay in autumn 1990 was due to the applicant's request to postpone the date for the hearing to review his detention on remand. They submit that some periods of inactivity on the part of the judicial authorities were excusable or may have had good reasons. However, they accept that the Court of Appeal's decision of 20 September 1991, confirming the applicant's detention on remand at that time, was questionable.   33.    The Commission notes that the applicant was subjected to two periods of detention on remand, the first from 26 January until 11 May 1988, lasting three and a half months, and the second from 8 May 1990 until 20 December 1991, lasting nineteen and a half months. The first period of detention would, if considered alone, fall outside the scope of the Commission's considerations for failure to comply with the six- month time-limit laid down in Article 26 (Art. 26) of the Convention. Nevertheless, these three and a half months must be taken into account in assessing the reasonableness of the period of his detention on remand (cf. Eur. Court H.R., Neumeister judgment of 27 June 1968, Series A no. 7, p. 37, para. 6; Ringeisen judgment of 16 July 1971, Series A no. 13, pp. 41-42, para. 101).   34.    The Commission recalls that it is in the first place for the national authorities to ensure that, in a given case, pre-trial detention of an accused person does not exceed a reasonable time.   To this end, they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the question of release.   It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Convention organs are called upon to review the reasonableness of the length of detention (cf. Eur. Court H.R., Letellier judgment of 26 June 1991, Series A no. 207, p. 18, para. 35; W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A, p. 15, para. 30).   35.    The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer suffices; the Convention organs must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty, and whether the domestic authorities displayed special diligence in the conduct of the proceedings (cf. Eur. Court H.R., Letellier judgment, loc. cit.; W. v. Switzerland judgment, loc. cit.).   36.    The applicant was detained on remand on the suspicion of having dealt in a considerable quantity of heroin, and because there was a risk of his absconding.   The Frankfurt Court of Appeal, in its decision of 23 August 1990, found that, having regard to the indictment against the applicant and the evidence referred therein, there was a reasonable suspicion that he had committed the drugs offences in question. Moreover, having regard to the applicant's place of residence in the Netherlands and the possibly important prison sentence, there was a risk of his absconding.   The Darmstadt Regional Court, in its decision of 6 November 1990, ordered the applicant's continued detention on remand on the ground that the further investigations had confirmed the reasonable suspicion against the applicant.   The Frankfurt Court of Appeal, in its further decisions, referred to these earlier findings. In these circumstances, the Commission, having regard to the nature of the charges against the applicant and the lack of family ties or other links in the country in which he is being prosecuted, is satisfied that the applicant's continued detention was based on sufficient and relevant grounds.   37.    As regards the conduct of the proceedings by the domestic authorities during the second period of the applicant's detention on remand, the Commission notes that the proceedings against the applicant concern charges of having - on two occasions - dealt in a considerable quantity of heroin.   The alleged accomplice of and main witness against the applicant was convicted in the meantime.   Some difficulties were related to the applicant's alleged alibi, which necessitated proceedings under letters rogatory.   38.    The Commission finds that the applicant did not cause considerable delays.   In particular, the delay in respect of the review proceedings regarding his detention on remand, i.e. a period one and a half months, cannot be seen as delaying the main course of the criminal proceedings.   39.    The German Courts, when ordering the applicant's continued detention on remand, considered that the investigations had been duly furthered and that no delays had been caused by grave mistakes of the judicial authorities.   This reasoning was confirmed by the Federal Constitutional Court.   40.    The Commission notes in particular that, following the applicant's extradition to Germany in May 1990, it took the Regional Court until November 1990 to commit him again for trial.   Some supplementary investigations continued as regards the applicant's statements in defence.   When in March 1991 proceedings under letters rogatory were eventually decided with a view to having a witness heard by the Greek authorities, it took more than two months to send these letters rogatory.   The applicant continued to remain in detention on remand, though the German court proceedings as such did not progress pending the lengthy proceedings under letters rogatory which were beyond the influence of the German authorities.   Only in December 1991, while the proceedings under letters rogatory were still pending, the applicant was released.   In these circumstances, the Commission cannot regard as reasonable within the meaning of Article 5 para. 3 (Art. 5-3) the length of the applicant's detention on remand.   CONCLUSION   41.    The Commission concludes unanimously that there has been a violation of Article 5 para. 3 (Art. 5-3) of the Convention.   D.     The alleged violation of Article 6 para. 1 (Art. 6-1)       of the Convention   42.    Article 6 para. 1 (Art. 6-1) of the Convention includes the following provision:         "In the determination of ... any criminal charge against him,       everyone is entitled to a ... hearing within a reasonable time       by (a) ... tribunal ..."   43.    The applicant submits that the criminal proceedings against him have exceeded a reasonable length. The Government refer mainly to their submissions under Article 5 para. 3 (Art. 5-3) of the Convention. They also submit that experience showed that proceedings under letters rogatory with Greek authorities were not unlikely to last more than one year.   44.    The period to be taken into consideration started on 29 October 1987 when an arrest warrant was issued against the applicant.   The proceedings have not yet terminated, i.e. after six years and eight months.   45.    The Commission recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the complexity of the case, the conduct of the parties and the conduct of the authorities dealing with the case.   In this instance the circumstances call for an overall assessment (see Eur. Court H.R., Ficara judgment of 19 February 1991, Series A no. 196-A, p. 9, para. 17).   46.    The Commission, referring to its above findings as to the complexity of the case and the limited contribution of the applicant to the length of the proceedings finds that the Government have not, in the light of all circumstances in the present case, sufficiently explained the length of the investigations against the applicant and the fact that no trial has yet taken place at first instance.   The charges against the applicant have not, therefore, been determined within a reasonable time.   CONCLUSION   47.    The Commission concludes unanimously that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   E.     Recapitulation   48.    The Commission concludes unanimously that there has been a violation of Article 5 para. 3 (Art. 5-3) of the Convention (para. 41);   49.    The Commission concludes unanimously that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 47).           Secretary                               President    to the First Chamber                    of the First Chamber         (M.F. BUQUICCHIO)                        (A. WEITZEL)