Lexploria

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)

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J.I.P. v. GERMANY

J.I.P. v. GERMANY

LEXI