I.   THE FACTS

The facts of the case, as presented by the parties and apparently not

in dispute between them, may be summarised as follows:

The applicant is a German citizen, born in 1942 and at present detained

in prison in Berlin. She is a lawyer (Assessorin) by profession and is

represented before the Commission by MM. Eschen and Ströbele,

barristers practising in Berlin.

The applicant was arrested in Berlin on 8 October 1970 and remanded in

prison (Untersuchungshaft) on the authority of a warrant of arrest

(Haftbefehl) issued on 9 October 1970 by the District Court

(Amtsgericht) of Tiergarten in Berlin. She was suspected of having

aided members of the so-called "Baader-Meinhof gang" to escape

punishment, in particular the former barrister Mahler who was wanted

for attempted murder, by hiding them in an apartment.

Furthermore, she was suspected of having participated in three bank

hold ups, committed on 29 September 1970 in Berlin. The Court stated

that there was danger of the applicant trying to abscond because she

was threatened with the possibility of a severe sentence of many years

of imprisonment. The Court also pointed out that the applicant was in

possession of a number of forged papers and had rented a second

apartment under a false name.

In November 1970 the Investigating Judge seized some books which had

been sent to the applicant. He stated that there was a danger that the

applicant would create a disturbance in the prison by using the

contents of the books for political propaganda and he pointed out that

the applicant had already fixed a paper on her prison cell with the

inscription "Death to capitalism and its servants" and "Solidarity with

Canadian liberation".

The investigations were first carried out by the Public Prosecutor at

the Regional Court (Staatsanwaltschaft bei dem Landgericht) in Berlin.

At the beginning of 1971 the case was taken over, because of its

importance, by the Attorney-General at the Federal Court

(Generalbundesanwaltschaft beim Bundesgerichtshof).

On 1 April 1971 the Investigating Judge (Ermittlungsricther) of the

Federal Court amended the District Court's warrant of arrest to the

effect that, insofar as the applicant had been suspected of having

aided persons who were wanted for attempted murder to escape

punishment, she was now suspected of having been a member of a criminal

organisation (Article 129 of the Criminal Code) namely the

Baader-Meinhof gang.

The judge stated that, according to the result of these investigations,

there was strong suspicion that this gang had committed several hold

ups and other crimes and that the applicant belonged to the inner

circle of the gang. She had rented an apartment in Berlin under a false

name which had served as a hiding place for the members of the gang.

In September 1970 she had rented several cars by presenting stolen or

forged documents to the hirers. The cars had then been used by the

members of the gang and had not been given back. At her arrest the

applicant was found in possession of a forged motor vehicle

registration card (Kraftfahrzeugschein). The car which was registered

under the forged card was parked nearby. Furthermore, the applicant was

carrying a loaded pistol.

The judge concluded that, in view of the applicant's close relationship

with other members of the underground organisation who had not yet been

arrested and in view of the gravity of the criminal acts of which she

was suspected, there was danger that she would try to abscond

(Fluchtgefahr). He was further of the opinion that the applicant's

conduct in prison proved her intention to suppress evidence and to

influence witnesses and her co-defendants in order to hinder the

investigation proceedings (Verdunklungsgefahr).

On 23 April 1971 the Federal Court, after having heard the

Attorney-General and the applicant's defence counsel, ordered the

applicant's further detention. The Court first rejected her counsel's

argument that it was not competent to deal with the criminal offenses

committed in Berlin. It then stated that the detention was justified

for the grounds already given in the warrant of arrest and in the

above-mentioned decision of the Federal Court' Investigating Judge. The

Court pointed out that it was likely that the applicant would, if she

were released, receive forged papers from other gang members not yet

arrested and that consequently the only way to prevent her absconding

was to keep her in prison. In the Court's opinion a detention exceeding

six months was justified because the case was extremely complex and

very difficult to investigate.

By order or 2 July 1971 the Investigating Judge stopped a letter

written by the applicant because he considered that it contained

distorted statements concerning the system of detention on remand. In

a decision of 8 July 1971 the Investigating Judge approved of certain

security measures which had been taken against the applicant by the

director of the prison in Cologne-Ochsendorf. The applicant had been

transferred to this prison and for seven days was not allowed to walk

in the open air because she had disobeyed the warders and had tried to

incite a riot.

On 29 July 1971 the Federal Court again ordered that the applicant's

detention on remand should continue. It pointed out that the reasons

stated in the previous decisions of 9 October 1970, 1 April 1971 and

23 April 1971 were still valid and added that the investigations

carried out in the meantime had strengthened the existing suspicion

against the applicant and that consequently the danger that the

applicant would try to abscond still existed. The Court stated that the

length of her detention pending trial was justified because extremely

extensive investigations had to be carried out and the applicant's

silence made these investigations even more difficult. The Court

finally stated that the length of detention was in proportion to the

severity of the charges and the sentence to be expected by her.

The Federal Court repeated these grounds in a further decision of 15

November 1971.

At the beginning of 1972 the applicant was re-transferred to a prison

in Berlin and her case was on 1 February 1972 again taken over by a

Public Prosecutor (Generalstaatsanwalt) at the Berlin Regional Court.

By decisions of 9 March, 4 April and 27 April 1972, the competent judge

stopped correspondence addressed to the applicant because the contents

were considered to be objectionable.

On 25 February 1972 the Berlin Court of Appeal (Kammergericht) decided

that the applicant's detention on remand should continue. The Court

stated that, according to the results so far obtained in the

investigation proceedings and contrary to the allegations of the

applicant's defence counsels, the applicant was still strongly

suspected of having been a member of a criminal organisation, of being

an accomplice to aggravated robbery, of having forged documents and of

possessing a weapon without a licence. According to the Court, these

suspicions were mainly based on the statements of a former gang members

and appeared to be credible as they were confirmed by various other

evidence. The Court was convinced that the applicant belonged,

according to the evidence so far obtained, to the inner circle of the

gang because she had been given a cover name and was equipped with a

weapon. Consequently, in the Court's opinion, she had known, and

approved, of the gang's plan to rob three banks in September 1970 and

there was strong suspicion that her part in the robbery had been to

provide the get-away cars which she had rented by fraudulent means in

West Germany and had taken to Berlin. Like the Supreme Court, the Court

of Appeal was of the opinion that there was danger that the applicant

would try to abscond because she had to expect a severe sentence. The

Court left the question open as to whether there was still danger of

suppression of evidence (Verdunklungsgefahr) by her.

The Court further stated that, even if the applicant's allegation were

true that there had been no new investigations carried out for some

time, there had been no delay in the handling of her case because it

took time to scrutinise the evidence already obtained. Finally, the

Court mentioned that it could see no reason to grant the applicant an

oral hearing before giving its decision.

On 17 April 1972 the Public Prosecutor filed the indictment

(Anklageschrift) against the applicant and other alleged gang members.

The applicant was accused of having been a member of a criminal

organisation, of armed robbery committed with others and of illegal

possession of weapons and munition.

By orders of 2 June 1972 and 6 September 1972 the Berlin Court of

Appeal decided that the applicant must remain in prison.

The trial against the applicant and several co-accused began on 24

November 1972. It is still pending but at present is in its final

phase, the prosecution having made their final plea (Anträge).

II.  COMPLAINTS

The applicant complained about the length of her detention pending

trial and alleged a violation of Article 5 (3) of the Convention.

She alleged that by the length of her detention and the measures taken

against her in prison (restriction of correspondence, of visits, of

reading material, severe disciplinary punishment, constant observation

even at night) the authorities were trying to break her resistance and

to make her admit to having committed the alleged crimes.

She stated that the first delay in the investigation proceedings was

caused by the fact that her case was taken over by the Federal Attorney

at the end of February 1971. This was done, so she alleges, because

only the Federal Attorney was competent to undertake investigations

against all the members of the Baader-Meinhof gang with the assistance

of a special commission formed for this purpose at the Federal Criminal

Office (Bundeskriminalamt). She admitted that it was probably expedient

to centralise the investigations but she was of the opinion that her

proceedings should not have been delayed for the sake of investigations

carried out against others.

In her opinion there was, at no stage in the proceedings, enough

evidence to give rise to the suspicion that she had participated in

hold-ups or had been a member of a criminal association.

She alleged that her defence counsels were before October 1971 not

allowed to examine the files concerning the investigation proceedings

and could therefore not effectively appeal against the Court decisions

prolonging her detention on remand.

She alleged that her transfer on 15 May 1971 to West Germany, where she

was, according to her statements, detained successively in several

prisons, also hindered her defence counsels considerably.

The applicant pointed out that investigation proceedings against Horst

Mahler, who was arrested at the same time as herself, had already been

terminated in July 1971 and the trial against him had started on 8

October 1972, although he had likewise refused to make any statements

concerning the charges laid against him.

The proceedings against another member of the gang, Heinz Ruhland, had

allegedly been carried out even more quickly. He had been arrested on

20 December 1970 and convicted on 15 March 1972, inter alia, of

aggravated robbery. The applicant admitted that Ruhland had accelerated

the proceedings by his own statements but she pointed out that the

charges laid against him had been much more complex that the charges

laid against herself.

The applicant alleged that Ruhland was the principal prosecution

witness in her case and that he had stated, in February 1971, that she

was a member of the gang and that, to his belief, certainly

participated in the hold-ups. The applicant concluded that consequently

the investigation proceedings could have been terminated in February

1971 and in fact, so she alleged, no further investigations had been

carried out after February 1971.

A further enormous delay was according to the applicant, caused by the

re-transfer of her case to the Berlin prosecution authorities which

were no longer familiar with the files.

The applicant alleged that the evidence obtained in the investigation

proceedings at best justified a reasonable suspicion that she had

fraudulently rented cars and illegally carried a weapon but no more.

Not even the Public Prosecutor alleged that she had directly and

actively participated in the hold-ups. This confirmed, in her opinion,

that there was no proof that she knew about the hold-ups or approved,

and assisted in, them.

The applicant further denied that there was danger of her trying to

abscond. She stated that, according to the jurisdiction of the European

Court of Human Rights, the severity of a possible sentence to be

expected cannot alone justify the supposition that an accused would try

to abscond. There were no further circumstances so she stated, which

justified her detention. On the contrary, even if eventually she were

severely sentenced, the two years which she had so far spent in prison

pending trial would be credited towards the sentence and she had

therefore no reason to abscond.

The applicant finally alleged that the complexity of a case cannot

justify the keeping of a person in prison for years. She alleged that

her case is not so complex and could have been dealt with as speedily

as that of Ruhland and Mahler.

As regards domestic remedies, the applicant stated that while her case

was being dealt with by the Berlin courts she could not appeal to the

Federal Constitutional Court.

The applicant stated that she had never been convicted and sentenced

and still had the possibility to work in her profession. The longer,

however, she was kept in prison and in isolation, the more irreparable

the damage caused to her personality would be. She therefore requested

the Commission to direct the German authorities to release her

immediately.

She also requested the Commission to give her case precedence.

III. PROCEEDINGS BEFORE THE COMMISSION

On 9 February 1973 a group of three members of the Commission made a

preliminary examination of the applicant's complaints in accordance

with Rules 34 and 35 of the Commission's Rules of Procedure (former

version). The group's report was considered by the Commission on 11

July 1973 and the Commission decided that, in accordance with Rule 46,

2b of the Rules of Procedure, notice should be given to the Government

of the Federal Republic of Germany of the application and that the

Government should be invited to submit their observations in writing

on the admissibility of the application.

The Government's observations dated 11 October 1973, were received on

15 October 1973. The applicant's reply dated 26 October 1973 was

received on 30 October 1973.

The Commission again examined the application on 4 April 1974 and found

that the information contained in the case-file was still not

sufficient for it to reach a decision on admissibility. It therefore

decided, in accordance with Rule 46, 2 of the Rules of Procedure, to

invite the parties to make oral explanations on the admissibility at

a hearing which took place on 28 and 29 May 1974.

IV.  SUMMARY OF SUBMISSIONS OF THE PARTIES

1.   For a better understanding of the applicant's case the respondent

Government first gave an outline of the development and the criminal

activities of the Baader-Meinhof group of which the applicant is,

according to the indictment, a member.

After the disintegration of the anti-authoritarian student movement of

1967-68, some of their participants in the Federal Republic of Germany

thought they could bring about social changes by terror and violence

alone. On 2 April 1968 Andreas Baader, Gudrun Ensslin and two others

set fire to a department store in Frankfurt. On 31 October 1968 they

were sentenced for this offence to three years' imprisonment. In May

1970 Baader was liberated by armed force. In summer 1970 Baader, Ulrike

Meinhof, Horst Mahler and others went to Jordan in order to undergo a

training in a guerilla camp. They were instructed in the use of

firearms, close combat with knives and bayonets, as well as the

chemistry and techniques of explosives, as the Berlin Court of Appeal

found in its judgment of 26 February 1973 against Mahler.

In August 1970 the group, which had returned to Germany, began forming

an armed underground organisation, later called "Rote Armee Fraktion

(RAF)" (Red Army Fraction). The applicant is charged with having

participated in founding this organisation. Its aim, accepted by all

members, was to fight, like South American town guerrillas, with every

means against the social conditions in the Federal Republic of Germany.

The "Mini Manual of the Town Guerrilla" written by the Brazilian

guerrilla leader Carlos Marighella served as a guide for the formation

and equipment of the group. The author propagates a "merciless fight"

against the "ruling class" and give examples of town guerrilla attacks

on banks and other financial institutions, commercial and industrial

enterprises, as well as the kidnapping of well-known persons, sabotage

and terrorism, etc.

The actions and plans of the group conform to these ideas and

proposals. All the measures indicate the establishment of a dangerous,

secret organisation with criminal aspirations. This applies

particularly to the renting of secret accommodation where the members

could meet without danger. Further, the members' identities had to be

disguised. For this purpose code names and falsified identification

documents were used. In order to be able to carry out quick operation

the group obtained cars by stealing or fraudulently renting them. In

a workshop belonging to the Automechanic Grusdat - one of the

applicant's co-defendants - these cars were changed in appearance. On

29 September 1970 the group robbed simultaneously three banks and got

away with more than two hundred thousand German Marks.

On 8 October 1970 Horst Mahler, the applicant, and group members

charged jointly with her, namely Birgit Asdonk, Irene Goergens and

Ingrid Schubert, were arrested in a flat in Berlin which had been

rented by Ulrike Meinhof under a false name.

The group members, who had not been arrested, continued the group's

activities. Plans were made to liberate Mahler and the female members

of the group. For Mahler's liberation Grusdat planned to construct a

helicopter seating two persons. He did some preliminary work on the

project.

Precise preparations were made for breaking into a weapons depot of the

Federal armed forces. On 16 November 1970 and 21 November  1970

rubber-stamps, identity cards and passports were stolen from two

town-halls.

Also in 1971 and 1972 the group continued their activities, especially

by exploding bombs which resulted in deaths. In Hamburg, on 22 October

1971 a policeman, when arresting members of the group, and, on 3 March

1970, a CID officer were shot. In May 1970 six bombings are also

attributed to the group. It is not impossible that remaining members

of the group are still active today.

2.   The respondent Government, in their written observations on

admissibility and at the hearing before the Commission then submitted

their reasons why the application should be declared inadmissible. They

first argued that the applicant had not exhausted domestic remedies.

It was admitted that the applicant had no remedy against the order of

the Berlin Court of Appeal. However, it was pointed out by the

Government that the applicant had failed to lodge appeals against,

inter alia, the warrant of arrest issued by the District Court of

Tiergarten on 9 October 1970 and the orders of the investigating judge

of the Federal Court. It was further pointed out that the applicant had

the possibility of lodging a constitutional appeal against the orders

of the Federal Court.

The Government argued that consequently the applicant had to a

considerable extent failed to file such domestic remedies as could

reasonably be expected of her and therefore had not exhausted all

domestic remedies in the sense of Article 26 of the Convention.

3.   The Government also submitted that the application constituted

an abuse of the right to petition. It was stated in this respect that

the applicant's submissions were inconsistent with her behaviour during

the trial proceedings. If she was really concerned about speedy

proceedings, she would not during the trial, both inside and outside

the court-room, continuously and persistently have disturbed and

delayed the proceedings. The applicant showed that she intended to

upset the criminal proceedings in any way she possibly could. It was

apparently for this purpose that she introduced her application before

the European Court of Human Rights, namely in order to achieve her

unjustified release and thus to evade justice. The present application

therefore served the purpose of frustrating criminal proceedings

directed against her.

It was further pointed out in this respect that the applicant is

accused of being a member of a fanatic group aiming to change the

present social system by force, which first necessitated, according to

a statement made by Ulrike Meinhof, the destruction of state, economic

and social institutions. It was, however, not denied that the

protection provided by Articles 5 and 6 of the Convention applied

regardless of the crimes allegedly committed by any applicant invoking

these provisions.

4.   The Government finally asked the Commission to reject the

application as being manifestly ill-founded. It denied that there had

been any unreasonable delay of the investigations against the applicant

or of her trial.

In this connection the Government made the following detailed

submissions:

(a)  Strong suspicion of the applicant having committed the crimes of

which she was accused arose - if from nothing else - from the

circumstances of her arrest:  whoever is arrested carrying arms and

found in the hide-out of a criminal organisation is strongly suspected

of having participated in the offenses committed by that organisation,

particularly the bank hold-ups. This applied all the more as a piece

of paper with the addresses of savings banks was found in the

applicant's handbag. Furthermore, she carried a loaded pistol which had

been fired when Baader was liberated. She also carried 50 DM bills in

packets as is usual with banks.

In the course of the proceedings the strong suspicion has not

disappeared but increased. The danger of the applicant's absconding if

she were released still existed up to the present day. Before her

arrest, the applicant may have lived in Berlin at an address she had

registered with the authorities and may have worked in the office of

the barrister who was now representing her in the proceedings. However,

this was only a cover for her activities as a member of the group. When

she was arrested she had false identity papers and keys to secret

accommodation of the group. As the group remained active even after her

arrest, going as far as considering plans for her liberation, it would

not have been justified to release her. Considering her ideology, which

is hostile to the law, as clearly appears from her conduct during the

trial, she would not have kept herself at the disposal of the police

for the trial but would have gone underground to continue her fight

against the "capitalist class".

(b)  After the applicant's arrest the enquiries and investigations

were properly conducted.

The proceedings were not delayed except by the applicant herself who

refused to make any statement as to her identity and the charges laid

against her.

The investigation of the offenses was difficult because they were

cleverly planned and executed and because so many group members took

part in them. Extensive enquiries had to be made in Berlin and

North-Rhine-Westphalia.

It is true that on 20 December 1970 Ruhland was arrested and made a

comprehensive confession which to a certain extent facilitated the

investigations against the whole group. However, it is not correct

that, in the spring of 1971 after Ruhland's interrogation, the

investigations against the applicant could have been terminated.

Since the applicant herself made no statements, extensive, difficult

and time-consuming investigations were necessary, such as

interrogations of witnesses and the obtaining of expert opinions.

Besides the interrogation of Ruhland was in no way completed in

February 1971. As late as in October 1971 he was questioned about

motor-cars alleged to have been hired by the applicant.

Moreover, as regards Ruhland's credibility, it was important to await

the outcome of the criminal proceedings against him. He was convicted

by the Court of Appeal in Düsseldorf on 15 March 1972 inter alia of

aggravated robbery and participation in an criminal organisation.

Ruhland's confession and the results so far obtained in the

investigations had revealed that the activities of the group were very

dangerous and covered many parts of the Federal Republic of Germany.

The applicant's case, as well as the cases of other group members, were

therefore considered to be of special importance and had consequently

in accordance with Section 74 a (2) of the German Judicature Act (GVG),

obligatorily to be taken over by the Federal Attorney-General. The

German Government pointed out in this context that they had obtained

a written statement by the Federal Attorney-General denying the

applicant's allegation that it had from the beginning been the

intention to transfer her case back to the Public Prosecutor in Berlin.

This retransfer, as the Government emphasised, was only effected after

it had turned out in the course of the investigations that the

applicant's case was of lesser importance. Therefore, the proceedings

had to be retransferred in accordance with Section 42 a (4) of the

German Judicature Act.

The transfer of the applicant herself successively to several West

German prisons was explained to have been both in the interest of the

investigation and for the security of her detention.

The Government denied that the transfer to the Federal Attorney-General

and the retransfer of the applicant's case caused any delay. They

pointed out that, after the retransfer of the applicant's case, the

Senator for Justice assigned two prosecutors to deal with the case.

Although  the results of the investigations now filled several files,

the indictment was already filed on 17 April 1972.

It consisted of a main part of 128 pages and an appendix of 55 pages.

It named 322 witnesses and 19 experts; besides this, numerous identity

cards, motor-vehicle registration cards, registration plates, rent

contracts for apartments and cars, keys, weapons and other items are

listed as evidence.

The Government concluded that about one and a half years of

investigations was not unreasonably long in view of the complexity and

difficulty of the case.

(c)  It was also pointed out that, in order to speed up the

proceedings the prosecution dropped several charges, such as eight

counts of fraud, attempted fraud and forging of documents.

After the filing of the indictment the applicant had, in accordance

with Section 201 of the Code of Criminal Procedure, to be given the

opportunity to comment on the indictment. The delay for these comments

having expired, the Regional Court in Berlin admitted the indictment

by order of 30 June 1972, a decision which can only be considered to

have been taken quickly. After all, under Section 201 of the Code of

Criminal Procedure, the Regional Court of Berlin had to examine whether

the six accused were sufficiently suspected of having committed the

offenses with which they were charged.

(d)  The trial which started on 24 April 1972 needed careful

preparation and, especially in view of the dangerousness of the

defendant and group members still at liberty, special security measures

had to be provided and structural work had to be carried out. The trial

was held in a specially protected court-room which had first been

prepared for the Mahler trial. For the trial against the applicant and

her five co-accused the glass protection of the dock had to be altered

because the proceedings involved not one but six defendants. The

Government pointed out that this was the only specially protected

court-room in Berlin.

It was first expected that the trial would last about nine months and

the administrative authorities provided two supplementary judges and

six supplementary lay judges in order to avoid possible delays, for

example in case of the sickness of a judge sitting at the trial. The

Government pointed out that the trial, which had now lasted eighteen

months, caused an unusual stress for judges and for the prosecution who

could take no leave during this time. Their families were constantly

under police protection. Their children had to be taken to school under

police protection. These inconveniences would have certainly been

avoided by the officials concerned had they had the possibility of

terminating the trial earlier.

All these necessary preparations explained why the trial could not

start before 24 November 1972.

(e)  The trial itself had been conducted as speedily as possible. On

an average the court sits on two days a week.

It was, according to the Government, irrelevant  that the trials of

Ruhland and Mahler began before that of the applicant. When prosecuting

a dangerous group consisting of many members, it was justified to

proceed first against a member who had confessed and then against one

of the group's leaders.

The trial was, according to the Government, on various occasions

disturbed and delayed by the applicant's own conduct as well as by the

conduct of her co-defendants:  e.g. all the defendants had to be

identified by four witnesses because they even refused to identify

themselves; on 5 January 1973, the defendants - including the applicant

- disturbed the proceedings by making loud noises and shouting. They

were, therefore, removed from the court-room in accordance with Section

247 (2) of the Code of Criminal Procedure (StPO). On 19 January 1973

the four female defendants wanted to leave the court-room. Together

they knocked on the table and abused the Public Prosecutor. They were

therefore again removed from the court-room. On 9 February 1973

evidence could not be taken because the accused had to be examined by

an expert to see whether they were fit for trial in view of their

hunger strike. On 6 March 1973 the defendant Schubert made a

declaration manifesting all the defendants' approval of an armed attack

by the terrorist organisation, Black September, against an embassy in

Khartoum. The applicant also shouted "solidarity with the comrades of

Black September". On 16 March 1973 the applicant and the other

defendants again insulted the public prosecutors in the court-room and

threw cheese at them. On another occasion they made a ball-point pen

explode which they had stuffed with the sulphur taken from matches.

From 8 May 1973 to 28 June 1973 the applicant again participated in a

hunger strike. As a result the court sat only in the morning for two

or three hours because it was feared that the defendant would not be

fit to attend the trial during the whole day. On 22 June 1973 the

applicant again refused to attend the trial. She had therefore to be

taken handcuffed to the court-room. There she insulted the presiding

judge saying:  "There is that swine again. We don't want this shit-show

any longer...". She was then excluded from the trial during the taking

of evidence.

Until 28 May 1974 the court say on 126 days during which 276 witnesses

and 22 experts were heard, of whom some were heard several times. In

order to speed up to the trial the prosecution renounced the hearing

of a hundred further witnesses. On 9 April 1974 the taking of evidence

was, with the agreement of the defence, terminated. The prosecution

then put their case and requested a sentence of 12 years' imprisonment

for the applicant. Thereupon the defence requested the trial court to

hear further 49 witnesses and one expert. Two of these witnesses were

heard. On 21 May 1974 the defence counsel began their pleadings and it

was expected, according to the Government, that a decision will be

given soon.

Apart from the conduct of the defendant, the original time-table of the

trial court was also dislocated for the reason that many witnesses did

not, for various reasons, appear on the dates fixed for their hearing.

The defence counsel also caused delays. For example, they challenged

(Ablehnungsanträge) judges or lay judges on eight occasions. All eight

motions were rejected as being unfounded although this had necessitated

time-wasting deliberations by the trial court. Five experts were

likewise challenged but only one of these motions was successful. It

also happened that defence counsel had to leave the proceedings earlier

than had been arranged, thus obliging the trial court to suspend the

proceedings. Furthermore, defense counsel made various other motions

and lengthy declarations which delayed the proceedings, e.g. they

requested a medical examination of their clients in order to find out

whether they were still fit to attend the trial.

The costs of the trial amounted, so far, to two million German Marks.

5.   The applicant in her reply to the Government's written

observations and submissions at the oral hearing first repudiated the

respondent Government's argument that the conditions of Article 26 of

the Convention had not been satisfied by her. She pointed out that

detention pending investigation can be perfectly justified for a period

of six months or even one year. During this time there was no cause for

the detainee to exhaust all the remedies available to him against such

detention. Such remedies would obviously have little chance of success

and could therefore not be considered to be in the interest of a proper

administration of justice. If the period of remand in custody was

prolonged, however, it might cease to be compatible with the Code of

Criminal Procedure. In such a case the detainee was entitled to have

recourse to any effective legal remedy against the detention orders

concerning him. Once the domestic remedies had been exhausted, it

should then be possible to lodge an individual application.

6.   The applicant then denied that she had done anything to justify

her being blamed for the protection of the proceedings against her. She

alleged that she had merely made use of her right not to make any

statements on the charge. The respondent Government's remaining factual

statements amounted in her opinion to unfair abuse.

In this respect she pointed out that it could be of no relevance to her

case that in the years 1971 and 1972 several people lost their lives

as the result of actions ascribed to the "Red Army Fraction". For one

thing, there was no proof that she was in any way connected with the

persons thought to be responsible for those actions. Further, account

should be given to the fact that, when those incidents took place, she

had already been in prison for more than one or even more than two

years.

The fact that at the time of her arrest she was in possession of a slip

of paper bearing the addresses of two savings banks' branch offices in

Berlin in no way proved that she participated in the planning and

execution of bank robberies. In fact the two addresses were of saving

banks where she had herself accounts.

She admitted that her conduct during the proceedings could not perhaps

be said to have been inspired by a positive attitude towards the law

but, considering what she had endured over the last three years, this

was in her opinion hardly surprising.

The applicant denied that there was at any time in the proceedings

strong suspicion of her having participated in the bank robberies. She

pointed out that the indictment was in this respect only based on the

alleged fact that, several months before her arrest, she had

fraudulently rented several cars two of which were allegedly used at

the bank robberies. There was, however, no evidence that she drove

either of these cars or that she was in any other way directly involved

in the bank robberies.

The applicant maintained that the investigation against her could have

been terminated in summer 1971, as it followed from the files that all

evidence which was later listed in the indictment had been collected

by then. She further pointed out that, in a report to the Federal Court

made in July 1971, the Federal Attorney-General stated that the

investigation would be terminated soon. Furthermore, she pointed out

that Ruhland's trial had already started on 18 January 1972 although

he was not only accused of the same offenses as herself, but of further

offenses committed after her arrest. The fact that his trial started

many months before her own trial could therefore, in her opinion, not

only be explained by Ruhland's confession. Also Mahler, who like

herself refused to make any statement, was brought to trial much

earlier, although he was arrested on the same day as she had been. The

applicant alleged in this respect that the indictment against Mahler

was 95% the same as her indictment. This proved that no further

investigation had been necessary against her than had been undertaken

in the case of Mahler.

The applicant denied that there had been any necessity to transfer her

case to the Federal Attorney-General. She pointed out that Mahler

himself had not been taken to West a German prison. She had been given

special treatment in West German prisons, as she was completely

isolated although she was never needed for the investigations which

were supposed to have been carried out in West Germany. The applicant

alleged that the transfer of her case and other cases to the Federal

Attorney-General was only effected because, in January 1971, bank

robberies took place in West Germany. Because of these robberies the

investigations of the police were centralised in the Federal criminal

office. These robberies and another incident, which took place later

in Frankfurt, were the true reason for the transfer of the cases to the

Federal Attorney-General as it was supposed that the Red Army Fraction

was involved. In her opinion, this did not, however, justify her

transfer because she was already in prison when these offenses were

committed. As regards the security measures which necessitated a

special preparation of the court-room, the applicant pointed out that

the court-room had already been prepared for the Mahler trial and was

ready long before her trial began. In addition, she stated that such

preparations could not justify a prolongation of her own detention.

As regards the trial proceedings, the applicant alleged that the

summoning of many witnesses was superfluous as it was known beforehand

that certain witnesses would not make any relevant statements, for

example, those witnesses who had already been summoned to appear at the

Mahler trial when they refused to answer questions from the court. The

applicant did not deny that she made objectionable remarks which led

to her exclusion from the trial. But she denied that this caused any

considerable delay and she stated, furthermore, that her behaviour was

provoked by the judicial authorities. For example, she stated that on

one occasion the president of the Trial Court ordered that all female

defendants should undergo a gynaecological examination before being

permitted to the court-room simply because they had once thrown cheese

at the members of the court. She alleged that the only factor which

could be attributed to her as having caused a delay was her state of

health which had deteriorated in consequence of her strict isolation

in the West German prisons. The applicant stated, however, that she did

not complain to the Commission about the conditions in the prison as

these conditions had in the meanwhile been improved and she saw no

longer any reason to raise this point as a separate complaint before

the Commission.

The applicant further denied that she caused delay by making

unnecessary and obviously unfounded motions. She pointed out that such

motions could be rejected by the court on the basis of the Code of

Criminal Procedure on the sole ground that they were obviously only

serving the purpose of prolonging the proceedings. However, the court,

as actually happened, took considerable time to deliberate on these

motions and this only proved that these motions were not obviously

unfounded.

V.   THE LAW

The applicant's sole complaint is that the period of her detention on

remand constituted a violation of Article 5 (3) (Art. 5-3) of the

Convention which provides that:

"Everyone arrested or detained in accordance with the provisions of

paragraph 1 (c) of this Article (Art. 5-1-c) 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 guarantee to

appear for trial."

1.   The Commission has first considered the question whether the

applicant has exhausted all domestic remedies as is required by Article

26 (Art. 26) of the Convention.

The term "all remedies" in the text of this provision refers to the

case where the domestic law provides against some measure or decision

a single series of remedies at various levels, such as appeal to a

court of appeal, further appeal to a supreme court and, possibly, a

constitutional appeal. In such a case where there is a single remedy

it should be pursued up to the highest level. The position is not so

certain where the domestic law provides a number of different remedies.

In such cases the Commission tends to admit that Article 26 (Art. 26)

has been complied with if the applicant exhausts only the remedy or

remedies which are reasonably likely to prove effective (see e.g. the

decision on admissibility of application o. 2686/65, Yearbook, Vol. X,

page 495).

On the other hand, Article 26 (Art. 26) does not have the scope

attributed to it by the respondent Government in cases where the

domestic law provides a single remedy against a particular measure, but

allows the person in question to make use of this remedy as often as

he feels inclined and at intervals left entirely, or to a great extent,

to his discretion throughout the time the measure in question remains

in force. Such, in fact, is the position in the present case. Under the

rules of criminal procedure in the Federal Republic of Germany persons

in detention on remand may at any time apply for provisional release

(see Section 117 (1) of the Code of Criminal Procedure - StPO). The

Code of Criminal Procedure imposes no restrictions on the exercise of

this remedy. Nor, on the other hand, does it require the detained

person to make a minimum use of the remedy. Furthermore, the competent

six months, decide ex officio and at regular intervals whether that

detention should continue. There is no possibility of an appeal or a

constitutional appeal against such decision if, as in the present case,

it is given by the Berlin Court of Appeal. It follows that the

Commission cannot accept the respondent Government's submission that

the conditions of Article 26 (Art. 26) of the Convention are not met

simply because the applicant has not appealed against this or that

particular decision ordering her detention on remand or the

continuation of such detention. Nor can the Government rely on the fact

that the applicant has not taken advantage of the possibility

temporarily open to her of bringing the matter before the

Constitutional Court. In fact she was later deprived of this

possibility by the retransfer of her case to the West Berlin

prosecuting authorities.

It was sufficient for the purpose of Article 26 (Art. 26) of the

Convention that the applicant exhausted at any time she though fit the

domestic remedies existing at that time. This requirement is entirely

satisfied. Prior to the lodging of the present application with the

Commission on 9 October 1972, the Berlin Court of Appeal had, in three

decisions not subject to appeal, refused to order the applicant's

provisional release. The last of those decisions as taken on 6

September 1972.

2.   The Commission next considered the respondent Government's

submission that the application was inadmissible under Article 27,

paragraph (2) (Art. 27-2), of the Convention as being an abuse of the

right of petition. The Commission does not accept this submission.

According to the Commission's case-law an abuse can be seen in the use

by the applicant of, e.g.:

- insulting remarks (see decision on admissibility of application No.

  2625/65, Collection of Decisions, Vol. 28, page 26, 41);

- completely specious arguments (see decision on admissibility of

  application No. 3141/67, Collection of Decisions, Vol. 27, page 117);

- false statements intended to mislead the Commission (see decision on

  admissibility of application No. 2364/64 and others Collection of

  Decisions, Vol. 22, page 103, 109);

- completely unfounded allegations whose purpose was to escape

  consequences of a conviction (see decision on admissibility of

  application No. 1270/61, Collection of Decisions, Vol. 8, page 97).

None of these grounds appear in the present case. It is true that the

applicant has, according to the undisputed statements made at the oral

hearing by the representatives of the respondent Government, behaved

in an objectionable manner at her trial. However, her submissions to

the Commission were not objectionable and her behaviour before the

Trial Court cannot be considered to constitute an element of abuse in

the context of her complaint, under Article 5 (3) (Art. 5-3) of the

Convention, that she was not brought to trial within a reasonable time.

The respondent Government also argued that the applicant was attempting

by every means to frustrate the prosecution directed against her and

that it was apparently for this purpose that she lodged an application

with the Commission, her intention being to obtain an unjustified

release as a means of escaping prosecution.

It is obvious that the danger of the prisoner absconding is one of the

principal justifications for her detention on remand. Nevertheless, the

existence of such a danger cannot justify the continuation of detention

beyond the reasonable time mentioned in Article 5 (3) (Art. 5-3) of the

Convention. Therefore, the applicant was not abusing her right of

petition in asking the Commission to examine the question whether the

period of her detention pending trial was reasonable within the meaning

of this provision.

The Commission finds therefore that the application cannot be declared

inadmissible as being an abuse of the right of petition under Article

27 paragraph (2) (Art. 27-2), of the Convention.

3.   According to the case-law of the European Court of Human Rights

(see Wemhoff case, judgment of 27 June 1968, page 23), the period with

which Article 5 (3) (Art. 5-3) of the Convention is concerned starts

with a person's arrest and ends with the day on which the charge

levelled against him is determined by a court of first instance.

According to the respondent Government, the trial court's decision in

the applicant's case will be given in the near future, the taking of

evidence having been concluded and the prosecution having made their

final plea (Antrag).

The period in question consequently amounts to a little more than three

years and seven months. This is undoubtedly an exceptionally long

period of detention on remand. However, the length of detention on

remand is not by itself decisive in the context of Article 5 (3)

(Art. 5-3) of the Convention because the concept of a "reasonable time"

cannot be translated into a fixed number of months or years (see

European Court of Human Rights, Stögmüller case, judgment of 10

November 1969, page 40). The reasonableness of an accused person's

continued detention must rather be assessed in each case according to

its special features (Wemhoff case, ibid, page 24) and the Commission

has to judge whether the reasons given by the national authorities to

justify the applicant's continued detention were relevant and

sufficient to show that detention was not unreasonably prolonged (see

European Court of Human Rights, Neumeister case, judgment of 27 June

1968, page 37).

The German courts based their decisions, ordering the applicant's

original arrest and subsequently her detention, on the ground that

there was a danger of her absconding if she were left at liberty. They

pointed out in this respect that the applicant might expect a heavy

sentence and that, at her arrest, she was in possession of forged

papers and had rented an apartment under a false name. The latter

findings were not contested by the applicant before the Commission. At

the oral hearing it was furthermore mentioned by the Agent of the

respondent Government that other alleged members of the so-called

Baader-Meinhof group had succeeded in being released pending their

trial and had taken advantage of this opportunity to abscond. It was

further pointed out in this connection that Baader himself had already

once been liberated in 1970 by way of armed attack. These statements

were likewise not contested by the applicant's representatives who

denied, however, that there was danger of her absconding. It was

alleged that there was not enough evidence to convict the applicant of

the crimes of which she was charged and that consequently her sentence

would be in no relation to the length of her detention. Furthermore,

it was pointed out by the applicant that she had a profession and a

fixed residence.

The Commission does not find that the reasons given by the German

judicial authorities were invalidated by the applicant's submissions.

The Commission notes in this context that, when the applicant was

arrested together with other group members, she undisputedly carried

a loaded pistol and possessed forged papers. During her trial she

manifested her solidarity with the group, approved criminal acts of

other group members and also manifested her sympathy with a terrorist

organisation which had attacked an embassy. This attitude confirmed the

statements of the German judicial authorities and the Commission is of

the opinion that it was not possible for the German authorities to

obtain from the applicant valid guarantees which would have ensured her

appearance at the trial if she had been released. It holds therefore

that the arrest and detention were valid under Article 5 (1) (c)

(Art. 5-1-c) of the Convention.

The Commission could, furthermore, not find that the exceptional length

of the investigation and the trial was caused by the an objectionable

conduct of the case on the part of the German judicial authorities.

The Commission first notes in this respect that the investigation and

the trial did not only concern the applicant but also several

co-accused whose carefully planned activities were not restricted to

West Berlin but covered also different parts of Western Germany. The

result of the investigation filled several files. Originally the

prosecution had named more than 300 witnesses and more than 20 experts

to be heard by the trial court. There can therefore be no doubt that

the applicant's case was of an exceptional complexity, and that the

investigations from 8 October 1970 until the filing of the indictment

on 17 April 1972. These investigations may have been facilitated to a

certain extent by the confession of Ruhland but, on the other hand, the

prosecution could not base its indictment solely on the evidence given

by a single group member but had to find out whether Ruhland's

statements, which incriminated other group members including the

applicant, were correct.

The Commission also does not find that the transfer of the applicant's

case to the Federal Attorney-General caused any substantial delay. This

transfer was not an arbitrary act designed in any way to delay the

investigation. It was, on the contrary, necessitated by the Federal

system which splits up competencies of investigation and prosecution

between Federal authorities, on the one hand, and authorities of the

Provinces (Lander) on the other hand. The Federal Attorney-General was

bound to take over the applicant's case when, at the beginning of the

investigations, it appeared that her case was of special importance.

It also seems to be obvious that it only helped to speed up the

investigations that they were centralised in West Germany and carried

out by a Federal authority. This was justified because the activities

of the group covered several parts of West Germany, including West

Berlin. The retransfer of the applicant's case to the prosecution

authorities in West Berlin also in the opinion of the Commission, did

not cause any substantial delay when account is taken of the fact that

the indictment against the applicant was filed on 17 April 1972. This

was only two and a half months after the case had again been taken over

by the Berlin prosecution authorities on 1 February 1972. It is true

that the indictment against Horst Mahler was already filed on 24

January 1972 and the Ruhland case took even less time, but the

difference up to the filing of the indictment in the Mahler case was

slight and due to the different jurisdictions dealing with the case.

The subsequent difference between the length of the respective

proceedings is due, as is explained below, to the conduct of the

present applicant and her co-defendants. It was also to be noted that

Mahler and Ruhland played other roles than the applicant in the

carrying out of the criminal activities of the group and that it might

have been easier to collect evidence against them. Furthermore, Ruhland

made a confession while the applicant refused to make any statement

with regard to the charges laid against her.

The length of the period between the filing of the indictment on 17

April 1972 and the beginning of the trial, 24 November 1972, is also

sufficiently explained. First, the applicant had, according to German

law, to be given a certain time to file her comments concerning the

indictment and to decide whether it was to be admitted, which in fact

it was on 30 June 1972. Furthermore, the trial court had to prepare the

trial proceedings and the administrative authorities had to prepare

security measures as concerned the court-room, access to the court-room

by the defendants and the public, etc. These security measures were

taken in the applicant's own interest as well as in the interest of all

other persons attending the trial. The Commission is convinced that

such measures were in fact necessary in view of bombing plots which

undisputedly occurred in 1971 and 1972 causing the death of several

people and which where attributed to members of the Baader-Meinhof

group. In this context it has again to be noted that the group member

Baader had in 1970 been liberated by way of an armed attack.

As to the trial itself the applicant's counsels admitted themselves

that it was of such complexity as to make it nearly impossible for

someone not having participated in it to find out what caused the

delays in this trial. The applicants' counsels even argued that it was

legitimate for the defendants to disturb the proceedings in order to

be excluded from it as the court would otherwise not have respected

their desire not to attend the trial.

It has in fact to be noted that the applicant and her co-accused

contributed a great deal to the delay of the proceedings by refusing

to answer questions, behaving improperly, throwing objects at judges

or the representatives of the prosecution, making insulting remarks,

going on a hunger strike, and even provoking an explosion of a

ball-point pen filled with sulphur taken from matches.

The defence also caused a delay in the proceedings. For example, eight

motions (Ablehnungsanträge) to replace judges or lay judges (Schöffen)

necessitated interruptions of the trial before being rejected as being

unfounded. Although the taking of evidence had been terminated and the

trial had come to its final phase, i.e. the conclusions of the

prosecution and the defence, the defence requested the trial court in

April 1974 to hear 49 further witnesses and one expert.

On the other hand, it has to be noted that the prosecution dropped

several charges against the applicant and renounced the hearings of

about 100 witnesses in order to speed up the proceedings. The

administrative authorities provided at the beginning of the trial two

supplementary judges and six supplementary lay judges in case the

judges or lay judges sitting at the trial had to be replaced. This

measure also proves the intention of the Berlin authorities to carry

on the trial without unnecessary delay. The trial court obviously took

every precaution to offer the applicant and the other defendants a fair

trial and this necessarily resulted in a delay of the proceedings as

all motions of the defence had to be carefully considered. In addition

many witnesses, as well as other evidence, had to be heard or to be

considered in order to decide whether the applicant was guilty or not.

In the light of all these circumstances the Commission finds that there

is no appearance of a violation of Article 5 (3) (Art. 5-3) of the

Convention.

It follows that the application is manifestly ill-founded within the

meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.

For these reasons, the Commission therefore DECLARES THIS APPLICATION

INADMISSIBLE