CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 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 }                              SUR LA RECEVABILITÉ                         Application No. 23673/94                       by Hans-Joachim BRAUCKS                       against Germany         The European Commission of Human Rights (First Chamber) sitting in private on 6 September 1994, the following members being present:              MM.    A. WEITZEL, President                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  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 19 August 1993 by Hans-Joachim BRAUCKS against Germany and registered on 14 March 1994 under file No. 23673/94;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:     THE FACTS         The applicant is a German citizen, born in 1964 and presently detained on remand in prison at Osnabrück.         It follows from his statements and the documents submitted that on 1 February 1993 the applicant was arrested in Rotenburg.   A warrant of arrest was issued on the following day by the District Court (Amtsgericht) Rotenburg Wümme.   The applicant has been detained on remand since then on suspicion of having committed six aggravated thefts.         On 23 February 1993 the case was transferred to the District Court Osnabrück which considered that the detention on remand should continue.         On 17 June 1993 the Osnabrück Regional Court (Landgericht) rejected the applicant's complaint against the warrant of arrest. According to the grounds given in the decision there was strong suspicion against the applicant not only because he was incriminated by a co-accused, W., but also because a car, rented by the applicant had at the relevant time been seen near the place of the offence and burglary tools were later found in that car.   Similar tools and loot were likewise found in an apartment rented by the applicant.         The court considered that there was danger of absconding in view of the heavy sentence the applicant had to expect.   In addition it is pointed out that he had during his interrogations before the police in March 1993 confessed to some 50 thefts.   His present allegation that his confessions had been obtained by unlawful interrogation methods was contradicted by the records of these interrogations which the applicant had signed and which state that the applicant had made the confessions after consultation with, and on the advice of, his defence counsel. This had been confirmed by the counsel.         In respect of danger of absconding the court also stated that the applicant did not have any family links and also no place of work and fixed abode.   An apartment rented by him was admittedly used as a sham address and deposit for loot but the rent had not been paid.   Before his arrest he had spent the nights in hotel rooms or in the car in which he and his co-accused had been travelling around.         On 20 July 1993 the Public Prosecutor at the District Court Osnabrück requested to extend the warrant of arrest to a further 87 criminal offences, mostly thefts.         On 6 August 1993 the Oldenburg Court of Appeal (Oberlandesgericht) ordered that detention on remand should continue. The court states in the decision that the applicant only admitted to having committed certain of the offences in question.   There was nevertheless strong suspicion with regard to all the charges as his co-accused, W., had given evidence against the applicant.   Furthermore the court considered that there was a danger of absconding in view of the heavy sentence which the applicant had to face and also in view of his previous convictions for similar offences.   His living conditions did not disclose any circumstances likely to be an obstacle to his absconding.         Moreover the court considered that the investigations were complex and difficult.   An expert opinion was still outstanding.   In all these circumstances and in view of the serious charges at issue the length of the detention on remand was not disproportionate.         On 21 September 1993 the Osnabrück Regional Court decided that detention on remand should continue.   The court pointed out that in the meantime an indictment had been submitted by the Public Prosecution. The applicant had partly admitted the charges made against him and as to the remainder he was strongly suspected in view of the statements of the co-accused, W.   Furthermore the court considered that there was a danger of absconding there being no personal circumstances likely to prevent the applicant from doing so.         On 6 October 1993 the applicant's constitutional appeal was rejected by a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht).         On 26 October 1993, the Regional Court admitted the indictment and opened the main proceedings.   Furthermore it decided to keep the applicant in detention on remand.         On request the applicant informed the Commission's Secretariat on 18 August 1994 that on 22 December 1993 he had been convicted and sentenced to three years and nine months imprisonment.   An appeal on points of law (Revision) is apparently still pending.   COMPLAINTS         The applicant considers that he is still in detention on remand and that it exceeds a reasonable time and therefore violates Article 5 para. 3 of the Convention   THE LAW         The applicant complains about the length of his detention on remand and invokes Article 5 para. 3 (Art. 5-3) of the Convention which provides insofar as relevant:         "Everyone arrested or detained in accordance with the provisions       of para. 1.c of this Article .... shall be entitled to trial       within a reasonable time or to release pending trial."         The Commission notes that the applicant was arrested on 1 February 1993 and was convicted in first instance on 22 December 1993.   As he was imposed a three years   and nine months prison sentence he is now serving the sentence and detained in accordance with Article 5 para. 1 (a) (Art. 5-1-a) of the Convention (cf. Eur. Court H.R., Letellier judgment of 26 June 1991, series A No. 207, p. 17 para. 34). Consequently the period under consideration lasted from 1 February 1993 until 22 December 1993, i.e. ten months and 21 days.         The Commission recalls that it falls in the first place to the national judicial authorities to ensure that, in a given case, the pretrial detention of an accused person does not exceed a reasonable time and 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 applications for 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 decide whether or not there has been a violation of Article 5 para. 3 (Art. 5-3) of the Convention (See, the most recent authority, Eur. Court H.R., W. v. Switzerland, judgment of 26 January 1993, Series A No 254, p. 32, p. 15 para. 30).         In the present case the applicant was arrested on suspicion of having committed several aggravated thefts.   On 6 August 1993 the Oldenburg Court of Appeal ordered that the detention on remand should continue on the ground that the applicant had admitted having committed certain of the offences in question while as to the remainder he was implicated by statements made by a co-accused.   The court considered that in view of the heavy sentence which the applicant had to expect and in view of his living conditions there was a danger of absconding. Furthermore the court considered that the principle of proportionality was not violated in view of the complexity and difficulty of the case and the serious charges at issue.         On 21 September 1993 the Osnabrück Regional Court decided that detention on remand should continue and pointed out that in the meantime an indictment had been submitted.         The indictment was admitted on 26 October 1993 while a constitutional complaint on the length of the detention on remand was rejected by the Federal Constitutional Court on 11 August 1993.         The Commission cannot find that the domestic courts based their decisions on the applicant's continued detention on arbitrary reasons or disregarded vital arguments submitted by the applicant.   It can furthermore not be found that the conduct of the proceedings to date was objectionable in that the judicial authorities could be considered to have caused substantial delays.         The applicant, for his part, has, neither in his submissions to the domestic courts, nor in his present application, stated any facts or developed any arguments likely to contradict the findings and the reasoning of the domestic courts.   The Commission therefore finds that the length of the detention at issue is satisfactorily explained and justified by the unrefuted reasons stated in the various decisions given on the issue by the domestic courts.   It follows that there is no appearance of a violation of Article 5 para. 3 (Art. 5-3) of the Convention and the application therefore has to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)