I.   THE FACTS

The facts of the case, as submitted by the applicant and apparently not

in dispute between the Parties.

The applicant is a German citizen, born in 1935 and was living in

Bremen when lodging the application. He is at present detained in

prison in Bremen.

In 1967 the police started investigations against the applicant and

others who were suspected of having committed numerous fraudulent acts.

The applicant was for the first time interrogated by the police in

winter 1968. At the instance of the criminal police (Kriminalamt) a

photograph of the applicant and two other men was published in two

Bremen newspapers with a warning to the public. These publications

appeared on .. May 1969. According to the newspaper articles the

applicant and the other men worked as itinerant salesmen. They offered

their services to business firms and claimed commissions for orders

which they had allegedly collected. It turned out later that either the

person who was supposed to have placed an order did not exist or his

signature had been forged. According to the police the three suspects

had the order signed by their accomplices or their wives. It further

followed from the articles that the police had not yet collected enough

evidence sufficient for an indictment and that the suspected trio could

not even be arrested as they had a fixed abode. In fact the applicant

was not even arrested before .. August 1971 on the authority of a

warrant of arrest (Haftbefehl) issued on .. May 1971 on the ground that

there was strong suspicion of him having committed fraud (Tatverdacht)

and that there was, furthermore, danger that he might abscond

(Fluchtgefahr).

The indictment (Anklage) against the applicant was filed in March 1970.

On .. May 1970 the Regional Court (Landgericht) in Bremen rejected the

applicant's request to carry out preliminary court investigations

(Voruntersuchung). This decision was confirmed on .. June 1970 by the

Hanseatic Court of Appeal (Hanseatisches Oberlandesgericht) in Bremen.

Both courts stated that the evidence offered by the applicant could be

taken during the trial.

The trial against the applicant and his co-accused started in January

1971 before the District Court (erweitertes Schöffengericht) in Bremen

but the case was later remanded to the Regional Court.

The trial before the Regional Court in Bremen started in April 1971 and

on .. June 1971 the applicant was convicted of continued fraud

(fortgesetzter Betrug) and sentenced to five years' imprisonment. The

Court further ordered that for a period of five years the applicant was

not allowed to exercise the profession of an itinerant salesman.

The applicant appealed (Revision) alleging violations of certain rules

on criminal procedure.

On .. August 1972 the Federal Court (Bundesgerichtshof) quashed the

Regional Court's decision and sent the case back for a new trial. This

decision was based on the following grounds:  from .. May 1971 the

trial had been carried out in the applicant's absence who was allegedly

suffering from feverish influenza at the time.

On .. May 1971 the trial curt considered and discussed the applicant's

previous convictions. These convictions were later taken into account

in fixing the applicant's sentence. The Federal Court found that

procedural law and been violated because the applicant's previous

convictions had been discussed in his absence. The Federal Court stated

that for these reasons it did not have to deal with the applicant's

complaints as to the merits. However the court added in an obiter

dictum that the complaints were unfounded.

The Federal Court did not, however, order the applicant's release.

The applicant lodged several appeals (Beschwerden) complaining of his

detention on remand. These appeals were all rejected by the Hanseatic

Court of Appeal in decisions of .. November 1971 (a further appeal

against this decision was rejected by the same court as being

inadmissible), .. March 1972, .. April 1972, .. August 1972, ..

February 1973 and .. September 1973 on the ground that there was danger

of absconding. In the last-mentioned decision the court stated that,

according to inquiries made, the applicant was fit for detention. The

Court of Appeal referred to the reasons stated in the warrant of

arrest. In its decision of .. August 1972 it added that less stringent

measures were not indicated as they would not secure the purpose of

detention on remand.

On .. February 1973 the Regional Court again convicted the applicant

of fraud and this time sentenced him to four and a half years'

imprisonment. The court also ordered that for a period of five years

the applicant was not allowed to exercise the profession of an

itinerant salesman.

The applicant again appealed but his appeal was again rejected on ..

November 1973.

The applicant laid criminal charges against the police officer who had

been responsible for the newspaper article in which the applicant was

described as a fraudulent person. On .. July 1969 the Chief Public

Prosecutor (Leitender Oberstaatsanwalt) in Bremen informed the

applicant that he had discontinued the proceedings against the police

officer concerned. He stated that the only provisions of the Criminal

Code which the police officer might perhaps have violated were Article

185 et seq. (insulting remarks, slander) but it was not in the public

interest to continue the criminal proceedings ex officio. He informed

the applicant that he was free to bring an action (Privatklage) against

the police officer. But he advised him that such an action had no

prospects of success as the police officer could, at least partially,

prove that the information he gave to the press was correct and he

could argue that it was given in the public interest.

The applicant also laid criminal charges of perversion of justice

(Rechtsbeugung) against a judge. It appears that he later withdrew his

complaints but he was informed by the Public Prosecutor on .. May 1970

that in any event his accusations against the judge were unfounded.

The applicant has complained of his conviction and sentence to the

Federal Constitutional Court (Bundesverfassungsgericht) but his

complaint was not registered as a constitutional appeal as it was

partly inadmissible and for the remainder clearly ill-founded.

COMPLAINTS

The applicant complains that he was branded in a newspaper article as

a fraudulent person although he had neither been convicted nor had he

made a confession at that time.

He further complains that the court rejected his request for a

preliminary investigation (Voruntersuchung).

He also complains that the Public Prosecutor did not investigate the

true facts of his case quickly enough.

Finally, he complains that he was wrongly convicted and sentenced. He

states that, as a consequence of the above-mentioned newspaper article

published before his trial the judges were biased against him. He also

alleges that the trial court did not consider evidence offered by him.

The applicant invokes Articles 6 and 13 of the Convention.

II.  Proceedings before the Commission

In view of the fact that the applicant had not exhausted domestic

remedies when he lodged his application it was not examined by the

Commission before 1 October 1973 when the Commission decided to

communicate the application to the Federal Government for observations

on decision with regard to the applicant's complaint that he was not

brought to trial within a reasonable time within the meaning of Article

5 (3) of the Convention. The Government's observations were received

on 13 February 1974 and the applicant as then invited to reply. His

reply was received on 27 February 1974.

III. The relevant parts of the observations of the Federal Government

on admissibility submitted on 11 February 1974 (received on 11 March

1974).

(1)  As regards Article 6 (1) of the Convention it is submitted that

the length of the proceedings cannot be regarded as excessive

considering the offenses with which the applicant was charged, his own

conduct during the proceedings, and the requirements of criminal

proceedings properly conducted in a State governed by the rule of law.

(a)  The charge against the applicant was preferred on .. March 1970;

at this time the period under Article 6 (1) of the Convention began to

run. The pronouncement of the first judgment of the Regional Court

(Landgericht) Bremen on .. June 1971 might be regarded as the material

time for the end of the period because the Federal Court

(Bundesgerichtshof), when deciding the petition for review, did not

pronounce upon the merits of the charge. If this is not considered the

material time because the first judgment of the Regional Court Bremen

was not upheld, the Government of the Federal Republic of Germany

submits that the period ended with the Regional Court's second judgment

of .. February 1973. With this judgment, the merits of the charge were

definitely determined. In its order of .. November 1973 dismissing the

petition for review directed against this judgment the Federal Court

merely declared that the review of the judgment on the basis of the

grounds given for the appeal had not revealed an error of law to the

accused's detriment. Consequently, by this order no further-reaching

or varying decision is passed on the charge. The observations made as

a matter of precaution hereinafter refer to the time from .. March 1970

to .. February 1973, i.e. a period of 2 years, 10 months, and 18 days.

(b)  Having regard to the particular circumstances of the case, this

period cannot be considered unreasonably long:

In the indictment of.. March 1970 the applicant was charged in a great

number of cases with having obtained as a commission agent money under

false pretences usually together with his three co-accused. He was

accused of producing fictitious orders to various firms and receiving

or trying to receive commissions as a commission agent; it was alleged

that some of the people named as buyers did not exist, that, in other

cases, the orders were not signed by the persons named in them or

signed without intention of buying. The indictment, which ran to 50

pages, named 84 witnesses and listed 318 individual cases; in most

cases the applicant was alleged to be the offender or a joint offender.

On .. April 1970, after the indictment had been preferred, the

applicant applied for judicial preliminary investigation, i.a. on the

ground that so far he had not yet had sufficient opportunity to confer

with his defence counsel. He also declared above all that a more

thorough investigation would show that he had not rendered himself

liable to punishment. On .. May the Public Prosecutor opposed the

application, which was rejected by order of the Regional Court on ..

May. Against this order of the Regional Court the applicant then filed

an immediate appeal (sofortige Beschwerde) dated .. May. After the

Prosecutor General had made his observations thereof, the Court of

Appeal (Oberlandesgericht), by order of .. June, dismissed the

immediate appeal as unfounded.

On .. July 1970 the Regional Court ordered the opening of the main

proceedings against the four accused. In doing so, it directed that the

trial should be held in the District Court (Amtsgericht) Bremen sitting

as an "Erweitertes Schöffengericht", i.e. with two professional judges

(instead of one judge). Against this order the Public Prosecutor filed

an immediate appeal dated .. July applying for the proceedings to be

held before the Regional Court Bremen. On .. August this immediate

appeal was withdrawn. Thereupon papers were sent to the District Court

Bremen where they were received on .. August.

In that same month of August the District Court began preparing the

trial, as appears from the files; i.a. other files had to be obtained.

On .. September a warrant of the arrest of the co-accused D. was issued

on account of the danger that he might abscond. By letter of ..

November the District Court informed counsel for the accused of its

intention to begin with the trial in January 1971. On .. December it

decided that the trial should begin on .. January 1971, and it ordered

the formal summonses to be issued. The trial was held on .., .., ..,

and .. January 1971.

On the first day of the trial the applicant challenged the president

of the court alleging that he might be biased. The challenge was

rejected as inadmissible. The applicant declared that he would make no

statement as to the facts. On .. January the Public Prosecutor applied

for a reference of the proceedings to the Regional Court Bremen. The

Court granted the application on the same day. In the reasons for its

order it referred to its limited powers of imposing sentences, since,

under Section 24, paragraph 2, of the German Judicature Act

(Gerichtsverfassungsgesetz), District Courts may impose no severer

punishment than three years' imprisonment. The District Court Bremen

pointed out that on .. December 1970, by a judgment that had become

final and binding, the accused B. was sentenced to two years and seven

months' imprisonment; in the proceedings at bar the formation of a new

aggregate sentence had to be considered. Moreover, the District Court

took into account that in January 1971 the applicant was sentenced to

three months' imprisonment, which brought the number of his previous

convictions up to 17. To elucidate the facts of the case it was

necessary that the proceedings should be continued against all four

co-accused jointly.

On .. February 1971, after receiving the files, the Regional Court

Bremen decided that the new trial should take place on .. April 1971.

On .. April a further indictment was preferred against the four accused

in new proceedings; they were charged with rather similar offenses. The

cases concerned had not come to light before the conclusion of the

investigations in the earlier proceedings. Some of the charges related

to offenses that had been committed as late as at or after the

conclusion of the investigations in those proceedings. The new

indictment included 93 individual offenses, naming 37 witnesses. On ..

April the Regional Court decided to combine both proceedings.

The trial before the Regional Court was held on 14 days between ..

April and .. June 1971. 45 witnesses were heard in the course of the

proceedings; the record of the trial comprises 246 pages. In the

beginning of the trial the applicant declared that he was prepared to

answer questions regarding the charges. On .. May, however, he failed

to appear. On the same day a warrant was issued for his arrest. In a

letter of .. May, in which he informed the court  that he was ill -

without giving any details of his illness - he did not disclose his

whereabouts. On .. June he reported to the inhabitants' registration

office that he was leaving for Kenya. Subsequently, however, he stayed

in Lübeck and Travemünde, sometimes under assumed names.

On .. August he was apprehended at T. after trying to make his get-away

in a private car. Following his arrest he first served the sentence of

three months' imprisonment earlier imposed upon him. From .. November

1971 he was in custody on remand.

On .. May, after the applicant had absented himself from the trial, the

Regional Court first separated the proceedings against him from the

other proceedings. On .. May, the proceedings were again combined. The

judgment was pronounced on .. June 1971, the applicant being sentenced

to an aggregate sentence of 5 years' imprisonment.

On behalf of the applicant and his co-accused D. and S. defence counsel

filed petitions for review on .. and .. June, respectively. On ..

October the judgment was handed to the applicant who had meanwhile been

arrested; the reasons filled 218 pages. Grounds for the applicant's

petition for review were given in his counsel's written pleadings dated

.. November 1971. On .. November 1971 the applicant lodged an appeal

(Beschwerde) complaining of his detention. It was dismissed as

unfounded by order of .. November. Against this order of the Court of

Appeal the applicant lodged a "further appeal" (weitere Beschwerde)

dated .. December 1971 which was rejected as inadmissible by order of

.. December. On both occasions the files of the criminal proceedings

were transmitted to the Court of Appeal through the Prosecutor General.

On .. February 1972 the Public Prosecutor in Bremen filed an answer to

the petition for review. The Federal Prosecutor's applications of ..

June 1972 were received by the Federal Court on the following day. By

order of .. July 1972 the oral hearing of the petition for review was

fixed to take place on .. August. On this day the Federal Court decided

that the Regional Court's judgment on the applicant should be

completely set aside. According to the reasons, it was decisive for

this order only that the applicant's previous convictions, as shown by

an excerpt from the register of convictions, were discussed on .. May

1971, i.e. in his absence. In respect of the accused D. and S. the

Federal Court only quashed the Regional Court's sentence.

In the meantime the main files had grown to consist of 9, the

supplementary files of 63 volumes. After the judgment had been drawn

up, it was received with the files by the Federal Prosecutor on ..

September and by the Public Prosecutor Bremen on .. September. On ..

September the applicant filed a complaint against the decision of the

Regional Court; on .. October he also lodged an appeal concerning his

detention. On account of these two objections the files of the criminal

proceedings were first transmitted to the Prosecutor General for his

observations and the to the Court of Appeal for decision. When the

Court of Appeal had rejected the appeal concerning his detention, which

was on .. October, it next day returned the files, which were no longer

needed of its further decision, in order to avoid delay in the

preparation of the trial.

On .. November 1972 the president of the penal chamber of the Regional

Court noted down that the applicant's new trial should start on ..

January 1973. At the same time he ordered that the new trial of the

co-accused D. and S. should be held on .. December. As the first

judgment had become final and binding as regards the conviction of

these co-accused, no new fact-finding was necessary in those

proceedings. It was, therefore, deemed expedient to separate the

shorter main proceedings.

On .. November 1972 the date for the applicant's new trial was finally

set down, and accordingly it was begun on .. January 1973. 33 witnesses

were called. In the beginning of the proceedings the applicant declared

that he would make no statement. The trial was held on .., .., .., ..,

and .. January and on .., .., .., and .. February. The record consists

of 140 pages; the written reasons for the judgment, which were drawn

up later, are 92 pages long.

(c)  It follows from the observations made in sub-paragraph (b) that

the proceedings were not delayed. It is the applicant's own fault that,

from .. April to .. June 1970, no decision could be taken on the

opening of the main proceedings because his application for judicial

preliminary investigation and his immediate appeal against the order

dismissing the application had to be decided first. The subsequent

proceedings revealed that the application was entirely without

foundation.

When it was settled that no preliminary investigation would be held,

the Regional Court opened the main proceedings without delay. Inasmuch

as the Public Prosecutor filed an immediate appeal against the opening

order, preparations for the trial could not yet be made.

The time between the withdrawal of the immediate appeal (.. August

1970) and the appointment of a date for the trial ( .. December 1970)

was not unduly long. It must be taken into consideration that the

judges had to make themselves familiar with a very extensive

indictment.

In the trial before the District Court there was no avoidable delay.

The reference of the proceedings to the Regional Court on .. January

1971 was required,  because i.a. judgments by which prison sentences

were imposed on two of the accused had meanwhile become final and

binding and the inclusion of these sentences in an aggregate sentence

to be formed had to be considered.

It is true that the proceedings would have been shorter if the Regional

Court in its opening order had complied with the Public Prosecutor's

request not to open the main proceedings before the "Schöffengericht"

(of the District Court). It may well be that this would have been

better. However, if the proceedings had thus been conducted more

speedily, it would not have been possible to combine them with the

second proceedings in which the indictment was preferred on .. April

1971. In these proceedings, in which the indictment could not be

preferred earlier, the trial could not have begun before April 1971

anyhow - and this is exactly what happened in the combined proceedings.

Consequently, if one considers all the charges raised against the four

accused in this connection, the final determination of the charges was

hardly delayed by opening the first proceedings before the

"Schöffengericht".

In the opinion of the Government of the Federal Republic of Germany

violation of Article 6 (1), first sentence, of the Convention, cannot

be held to lie just because the Regional Court, in using its powers of

opening proceedings, took a course the expedience of which could later

be doubted.

As regards the proceedings before the Regional Court the following

remarks may be made:  the date for the trial was fixed as early as 10

days after the files had been received by the Regional Court, i.e. on

.. February 1971.

In consideration of the circumstances, the setting down of a trial date

still a month and a half distant was the proper course to take. In the

meantime, about 80 witnesses had to be summoned. If a summons could not

be served, attempts had to be made to find the witness's new address.

There were no avoidable delays, either, during the trial from .. April

to .. June 1971 and in the drawing up of the judgment served on the

applicant on 1 October. The time of two and a half months taken for

drawing up the reasons for the judgment appears to be appropriate in

view of the complexity of the case and the necessary length of the

reasons (218 pages). The time up to .. November was required by

applicant's counsel to state the reasons for his petition for review.

From the middle of November up to the middle of December the files were

needed to deal with the complaints made by the applicant.

When forming an opinion on the length of the period until the

submission of the answer to the petition for review (on .. February

1972) and the making of applications by the Federal Prosecutor (on ..

June 1972) it must be born in mind that the contents of the files had

in the meantime grown considerably, that three different petitions for

review had been filed, and that the applicant's petition contained

numerous complaints. It took but little time to fix a date for the oral

hearing before the Federal Court and to hold that hearing.

If it is remembered that a new separate trial had to take place in

December 1972 against the co-accused D. and S. the time until the new

trial against the applicant began on .. January 1973 does not appear

to be long. The trial itself was speedily conducted.

In summarising, it must be stressed that the extraordinary complexity

of the case, especially the great number of witnesses, made it

unavoidable that the proceedings took some time. Furthermore, there was

the inseparable connection with the proceedings against three other

accused who acted similar to the applicant or jointly with him. The

most decisive point was, however, that in accordance with the

requirements of the law of criminal procedure the charges repeatedly

had to be determined by new tribunals and that the allegations made

against the applicant were the subject of three different oral hearings

before fact-finding courts. Between the first and the second judgment

of the Regional Court alone more than 1 year and 10 months elapsed.

This prolongation of proceedings was caused only because the applicant

had absented himself from the first trial before the Regional Court.

His subsequent conduct reveals that his allegation that he was ill

cannot be believed. This is indicated especially by the fact that, as

far as can be seen, he made no concrete statements about his alleged

illness and produced no medical certificate. From his conduct it can

only be inferred that he wanted to delay the proceedings by staying

away from the trial. Almost two-thirds of the length of the proceedings

must, therefore, be ascribed to the applicant's conduct which was aimed

at prolonging the proceedings.

It is submitted that, under these circumstances, a violation of Article

6 (1), first sentence, of the Convention cannot be established.

(2)  Also under Article 5 (3) of the Convention, the application must

be regarded as manifestly ill-founded; the material period under this

provision was not unreasonably long however it may be calculated.

(a)  The following observations may be made on the computation of the

period:  if it is not held that the applicant's detention in its

entirety falls under Article 5 (1) (a) of the Convention, the Federal

Government takes the view that the material period is the time from ..

August 1972 to .. February 1973. This is a period of 5 months and 27

days. If, in addition, also the time spent under detention on remand

between the Regional Court's first judgment and the Federal Court's

decision of .. August 1972 is considered, the material period would be

the time from .. November 1971 to .. February 1973, i.e. a period of

one year, two months, and  27 days.

(b)  Neither of these periods is unreasonably long. When judging them,

in addition to the facts mentioned in paragraph (1) (b), the following

circumstances should be considered:

After his apprehension on .. August 1971 the applicant, as already

mentioned, first served a sentence of three months' imprisonment that

had earlier been imposed upon him. On .. November 1971 the Regional

Court Bremen issued a new warrant of arrest against him. It was based

on the consideration that the applicant was strongly suspected of fraud

and forgery of instruments in 22 cases as was shown by the Regional

Court's judgment of .. June 1971. The ground of arrest, namely risk of

flight, was based on the fact that on .. May 1971 the applicant stayed

away from the trial and absconded. The Regional Court held that,

judging from his flight and the sentence of imprisonment to be

expected, there was danger that he would again avoid the criminal

proceedings by absconding.

After the beginning of detention on remand on .. November 1971 the

applicant, as mentioned above, lodged an appeal concerning his

detention on .. November and, against the order dismissing his appeal,

a "further appeal" on .. December, which was rejected as inadmissible

on .. December 1971. Further, he lodged an appeal concerning his

detention on .. February 1972, which was dismissed as unfounded by the

Court of Appeal Bremen on .. March 1972; another appeal concerning his

detention, dated .. March 1972, was also held by the Court of Appeal

in its order of .. April 1972 to be unfounded.

The Court each time referred to the valid reasons stated in the warrant

of arrest.

When setting aside the first judgment on .. August 1972 the Federal

Court saw no reason to vacate the warrant of arrest under Section 126,

paragraph 3, in conjunction with Section 120 of the Code of Criminal

Procedure. According to these provisions, the court dealing with the

appeal ("Revision") may vacate the warrant of arrest when setting aside

the impugned judgment if it plainly follows from this decision that the

requisites for continued detention on remand are no longer present or

that such detention would last disproportionately long.

The applicant further appealed against his detention on .. August and,

as mentioned, on .. October 1972. The appeals were dismissed as

unfounded by the Court of Appeal Bremen on .. August and .. October

1972, respectively. The Court observed in its orders that strong

suspicion of arrest - i.e. risk of flight - continued to exist. In its

order of .. October the Court of Appeal also referred to the Federal

Court's judgment that had meanwhile been passed. The Court of Appeal

held that the setting aside of the Regional Court's first judgment on

account of a procedural error provided no reason for taking a different

view of the suspicion that the applicant had committed the deeds. In

both the orders the Appeal Court declared that the purpose of detention

on remand could not be fulfilled by less stringent measures under

Section 116 of the Code of Criminal Procedure.

(c)  It follows from the above observations that the warrant of arrest

had to be sustained from .. November 1971 to .. February 1973. The

judgment of the Regional Court Bremen of .. June 1971 established the

strong suspicion in respect of the deeds that were the subject of the

conviction. Insofar the Federal Court's judgment of .. August 1972 did

not change the situation for the procedural error leading to the

setting aside of the Regional Court's judgment was not seen to lie in

the finding of the offender's guilt, but in the discussion of his

previous convictions in his absence.

The ground of detention - i.e. risk of flight - continued to exist

during this period. It was based on his staying away from the trial

before the Regional Court, his reporting to be leaving for Kenya, his

using assumed names, and, finally, his attempted flight at T. when he

was arrested. As a result of the expectation of a sentence of about

five years' imprisonment the risk of flight increased. The length of

the detention on remand was not disproportionate to the punishment that

was to be expected.

Therefore, it does not appear  that the applicant's rights were

violated by court decisions dealing with detention.

As regards the length of the proceedings reference may be made to the

observations set out above in paragraph  (1) (c). Neither the period

from .. November 1971 to .. February 1973 nor that from .. August 1972

to .. February 1973 can be regarded as disproportionately long in

respect of the applicant's detention. Detention on remand would have

been unnecessary altogether if the applicant had not absented himself

from the trial before the Regional Court and absconded. Consequently,

Article 5 (3), second half of the first sentence, of the Convention has

not been violated, either.

IV.  The relevant parts of the applicant's reply of 23 February 1974

(received on 27 February 1974) to the Regional Court's observations of

11 February 1974.

1)   It is true that I applied for a judicial preliminary examination.

But this was only because it was stated in the indictment that certain

clients who had made orders were non-existent although they in fact

resided at the address given. For the prosecution had made inadequate

enquiries. A careful investigation in fact revealed that the names

specified in the indictment actually existed.

And I was in a position to produce this evidence of the inadequate

investigation by the prosecution to the court or the registry of

obtaining certificates from the registration authorities so far as my

own orders were concerned. It should be remembered that I was in

detention when the indictment was served and was only able to make

investigations to clear myself after my release. The evidence in my

favour deposited with the registry of the Criminal Court in Bremen

could not be found at the time of the hearing (the President of the

Court said "I am not surprised that documents are missing in this

court, a lot disappears here") (Non-literal quotation). In addition I

also applied for a preliminary investigation in order that an expert

might be appointed to conduct careful enquiry into whether the orders

in question were in fact mine; I mean because the principal accused had

at the time forged my signature to certain contracts.

When the case came on for trial before the District Court on .. January

1971, I challenged the President on the grounds of bias. The reason was

that he had been a judge in the case of XXX and sentenced me to sixteen

months'imprisonment. This sentence was reduced from sixteen to ten

months on appeal. I have served these ten months and received

indictment while serving sentence. Officially appointed defence counsel

did not visit me and I was therefore unable to prepare my defence to

the proceedings and asked for a preliminary investigation.

When the District Court was about to refer the proceedings to the

Regional Court, I made an application for the proceedings against me

to be separated and continued in the lower court. This application was

refused.

This however shows clearly that I certainly did not wish to delay the

proceedings but was always guided by the desire to obtain their speedy

continuation.

For the rest I did not remain silent during the trial before the

District Court. I adopted a position on the matter (see the record of

the hearing). The Federal Government's account is incorrect!

It so happened that in the case of the principal accused B., who was

serving a number of sentences imposed under final judgments with effect

from .. January 1970, a consolidated sentence (Gesamtstrafe) would have

to be imposed. The President of the District Court knew as early as

1970 (when THE CASE was referred to the District Court) that the

conditions requiring the imposition of a consolidated sentence applied

in B.'s case and that the jurisdiction of the Regional Court was not

sufficient for this purpose. In spite of this the case was sent to the

District Court.

Further, it is indeed worthy of note that the President of the District

Court dealing with our case had himself previously sentenced B. (to

nine months for fraud on .. December 1968; to one year on .. December

1969, etc.). He was accordingly aware that B. was already serving

various sentences and that a consolidated sentence was possible. The

prosecution was also aware of the position.

Another point must be corrected:  the second indictment was admitted

by the Regional Court in my absence.

The trial before the Regional Court was held on two days in each week

(1971). On the days when there was no hearing I worked in order to

cover my essential needs. In May 1971 I was on a business trip for two

days and was unable to appear at the hearing on account of a sudden

illness. I immediately informed the court of my illness and added that

I would make myself available for the proceedings as soon as I was

better. Further, when I was able to get up I telephoned to the court

President and asked for his comprehension. It is impossible that when,

tied to my bed with a high fever, I nevertheless managed to write to

the court excusing my absence that I sent the letter without endorsing

my name and address. An acquaintance took the letter to the post for

me and rang up the Regional Court registry.

It is contrary to plain logic for an accused who wishes to escape

answering for his conduct in a criminal trial nevertheless to write to

the court asking to be excused because he is ill. I should like once

again to state very definitely that I never dreamt of attempting to

evade the criminal authorities. On the contrary:  my first interest was

and is to be rehabilitated; for it is beyond question that I have been

convicted for offenses which I have not committed.

The allegation that I was living in Lübeck or Travemünde under a false

name is not correct. I categorically deny this accusation!

I assume that the Attorney General's department in Bremen passed this

false information to the Federal Government in order to cover up their

failure in this matter.

It is true that I was arrested at T. on .. August 1971 but there can

be no question of an attempt to abscond. I categorically deny any such

imputation!

I am also not unaware that the officer in charge of the case in Bremen

may have manipulated B.'s evidence in order to sacrifice me at the

trial in January 1973. The same prosecuting officer has recently

refused me leave from detention although the necessary requirements are

satisfied. This is the result of an application for a disciplinary

enquiry.

A reply to my notice of appeal by the Attorney General's department in

Bremen dated .. February 1972 was not on me.

When the judgment was set aside by the Federal Court it was not

necessary for it to consider other grounds since the one ground was

sufficient for the purpose.

After the appeal judgment was set aside (.. August 1972) I applied to

the Regional Court to fix a date for trial as early as possible. I also

wrote to the President of the Regional Court for this purpose (see the

letter of the President of the Regional Court).

About thirty witnesses were summoned to the trial in January 1973 but

only about 25 of them were heard. The owners of only 6 of the 22

businesses involved in the case were examined. All the other -

ostensibly - injured parties were not examined with a view to better

clarifying the matter.

Furthermore, the Regional Court considered all the defence witnesses

unworthy of belief. What is more, further applications for witnesses

to be examined were refused by the court (see the record of the trial).

The judgment is based on B.'s evidence.

2)   From what has been said it follows that the proceedings were

delayed by actions on the part of the court and the prosecution. The

investigations by the prosecution proved inadequate so that the

Regional Court had to separate the cases for their better

clarification.

The second indictment scarcely affects me particularly in view of the

fact that it was in any case introduced into the trial before the

Regional Court in my absence (1971). The counts in this indictment are

outside my knowledge, i.e. I know the indictment from hearsay only.

Moreover, it did not form the subject-matter of the last trial unless

of course I was convicted on counts in the second indictment despite

the fact it was not introduced in my presence.

If it is being suggested that I delayed or obstructed the proceedings

I must categorically reject the allegation. Moreover, it is completely

illogical to believe such an allegation by the Federal Government

because the Federal Court would not have set aside the Regional Court's

judgment if the judges had believed that I deliberately remained absent

from the trial.

3)   The Bremen Court of Appeal has found that the detention on remand

commenced to run from .. August 1971 (decision of the Hanseatic Court

of Appeal, Bremen of .. April 1973).

Again the Hanseatic Court of Appeal states in its decision of ..

September 1973:

"The appellant has in fact been in detention on remand since .. August

1971".

(Ref. XXX.)

The Government's observations thus contradict the opinion of the

Hanseatic Court of Appeal in Bremen.

It must further be objected that my rights were violated in respect of

the long period of detention on remand. As early as May 1973 the doctor

of the Bremen Prison certified that I was unfit for detention on

account of liver and bowel disease. A copy was sent to the Regional

Court. There, however, it fell on deaf ears and the certificate of

unfitness for detention was ignored.

The principle of proportionality applies also to the question whether

detention on remand should be ordered at all or continued.

The allegation of a violation of Article 5 of the Convention on Human

Rights is based on the following grounds:

In my opinion I was not lawfully held in detention on remand. Firstly,

it must be assumed that I did not attempt to abscond but failed to

appear at the trial on account of illness.

a)   In my opinion there was no valid arrest warrant. The arrest

warrant is based on the Bremen Regional Court's judgment of .. June

1971. In this case, however, the judgment, which with all the findings

on which it was based was set aside by the Federal Court's judgment of

.. August 1972, was NOT valid!  In other words, a judgment which

according to a decision of the Federal Court is incorrect can provide

a sound basis for the validity and execution of a warrant; for the

general rule is that a warrant must state the facts on which it is

based, but the warrant in question merely refers to the judgment of ..

June 1971.

b)   The Regional Court's decision of .. February 1973 which "ordered

the continuance of detention on remand and should provide justification

therefor" is without any legal foundation, because the court obviously

- and incorrectly - based itself on the "incorrect grounds" (which it

purported to justify by using the word "correct") of the arrest warrant

which in turn are merely based on the judgment of .. June 1971.

For the rest the position in fact and law has changed since the first

judgment was set aside and it is not enough for the Regional Court to

refer in its decision to the grounds of a judgment which are

non-existent in order thereby to justify the continuance of the

detention on remand.

The Bremen Regional Court's decision of .. February 1973 concerning the

continuation of detention on remand must accordingly, in particular in

view of the renewed conviction, be regarded as a violation of Article

5 (and also Article 6) of the Convention on Human Rights and

Fundamental Freedoms; indeed the ordering of my detention (and

continued detention) for danger of absconding on .. February 1973 does

not comply with the form prescribed in paragraph 2 No. 2 of Article 112

of the Code of Criminal Procedure which is itself covered by the

Constitution and Article 5 of the Convention on Human Rights. It

follows from this that it is possible that the decisions of the

Hanseatic Court of Appeal are also without legal foundation, seeing

that the requirements of a valid warrant were not satisfied.

It may be observed that the beginning of the (alleged) time of

committing the offense stated in the warrant and also the amount of

damage with which I was charged were now no longer mentioned at the

trial or in the new version of the reasons for the judgment; to this

extent the facts in the warrant were not correct.

Insofar as the grounds of detention and suspicion are based on the

non-existent judgment of .. June 1971, the continued execution of the

detention on remand is unlawful.

4)   My unfitness for detention was brought to the knowledge of the

Regional Court by a photocopy - sent by the Prison doctor. This was in

May 1973 and was due to a liver and a bowel complaint, confirmed by the

fact that a bed was reserved in the F. hospital.

I was even refused an oral review of my detention for which I applied

on several occasions during my long detention on remand.

I here recall that I was without question and by far the prisoner with

the longest period of detention on remand in Bremen, i.e. up to ..

December 1973. The principle of proportionality is therefore

particularly significant; for this PROHIBITION OF THE UNREASONABLE

places a limit on the admissibility of otherwise permissible measures,

as expressly stated in Article 5 of the Convention on Human Rights.

It is thus obvious that my rights were violated by the court decision

on my detention.

When one considers that in May 1969 press reports appeared at the

instigation of the Bremen investigation authorities (with my name and

photograph) branding me as a swindler although no charge had been

brought, not to speak of a date for the trial fixed, it is impossible

to avoid the impression that the legal authorities in Bremen were

intentionally and deliberately riding roughshod over the principles of

law and justice. I make this charge at any rate against the

investigating authorities. The proceedings are marked by serious

defects. The investigations were not carried out with the necessary

care and expedition and the judgment is based on presumptions only.

Accordingly it may be DOUBTED whether the proceedings and the very long

detention on remand are in accordance with the rule of law.

As stated in my constitutional appeal of .. December 1973 I consider

that Articles 3, 5 and 6 of the Convention on Human Rights have been

violated.

THE LAW

I.   The applicant has first complained that the police gave

information to the press and that he was consequently branded in

newspaper articles as being a fraudulent person. However, under Article

26 (Art. 26) of the Convention, the Commission may only deal with a

matter after all domestic remedies have been exhausted according to the

generally recognised rules of international law.

In the present case the applicant failed to show that he brought a

criminal action (Privatklage) or a civil action for damages against the

responsible police officer and can, therefore, not be considered to

have exhausted the remedies available to him under German law.

Moreover, an examination of the case as it has been submitted,

including an examination made ex officio does not disclose the

existence of any special circumstances which might have absolved the

applicant, according to the generally recognised rules of international

law, from exhausting the domestic remedies at his disposal.

It follows that the applicant has not complied with the condition as

the exhaustion of domestic remedies and his application must in this

respect be rejected under Article 27, paragraph (3) (Art. 27-3), of the

Convention.

II.  1) The applicant has next complained of the length of the

criminal proceedings and his detention pending his appeal.

The Commission has first considered this complaint under Article 5 (3)

(Art. 5-3) of the Convention. The period with which this provision 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 (European Court of Human Rights, "Wemhoff" case, Judgment of

27 June 1968, p. 23).

The particularity of this case is that the applicant, after his arrest,

first had to serve a three months' prison sentence while his detention

on remand did not start before .. November 1971, that is after his

conviction of .. June 1971 which was later quashed by the Federal Court

on .. August 1972.

The Commission does not consider it necessary to decide whether, in

view of these circumstances, the applicant's whole period of detention

on remand falls under Article 5 (1) (a) (Art. 5-1-a) of the Convention

and can therefore - as the Government suggest - not be judged under

Article 5 (3) (Art. 5-3), or whether Article 5 (3) (Art. 5-3) is

applicable at least in regard to the period from .. August 1972 to ..

February 1973.

The Commission is assuming in the applicant's favour that the period

concerned under Article 5 (3) (Art. 5-3) lasted from .. November 1971

to .. February 1973, which would be the longest possible period running

from the beginning of the applicant's detention on remand until his

second conviction pronounced by the trial court. The Commission, even

on this assumption, does not however consider that this period was

unreasonably long taking into account the complexity of the case and

the gravity of the charges against the applicant. It is important to

note that the Federal Court had already in its decision of .. August

1972 indicated that the applicant's appeal was unfounded insofar as he

alleged that he had been wrongly convicted. The Commission could

furthermore not find that the reasons given by the German judicial

authorities, when prolonging the applicant's detention on remand, were

invalidated by the applicant's submissions.

For these reasons the Commission is of the opinion that there is no

appearance of a violation of Article 5 (3) (Art. 5-3).

2) As regards the alleged violation of Article 6 (1) (Art. 6-1) of the

Convention, the period to be taken into consideration begins, according

to the case-law of the European Court of Human Rights (see the

"Wemhoff", "Neumeister" and "Ringeisen" cases, judgments of 27 June

1968 and of 16 July 1971), with the date on which a person is charged

and, in determining that date, regard must be given to the particular

circumstances of the case concerned.

The Commission in resolving this problem held in previous decisions

that "the relevant stage is that at which a person concerned has been

substantially affected as a result of a suspicion against him" (see

Commission's Report in European Court of Human Rights, Series B,

"Neumeister" case, p. 81, and the Report concerning application No.

4517/70, Huber v. Austria, p. 30). In the cases just cited the

Commission has found that the interrogation of the applicant or of

witnesses alone is not sufficient to hold that the applicant is faced

with a criminal charge within the meaning of Article 6 (1) (Art. 6-1)

of the Convention.

The applicant's interrogation by the police in the winter 1968 is

therefore not relevant.

The Commission is however of the opinion that the newspaper publication

of .. May 1969 branding the applicant publicly as being a fraudulent

person clearly affected his situation and must therefore be considered

as the event leading to his being charged.

The period covered by Article 6 (1) (Art. 6-1) of the Convention ends

with the acquittal or conviction including a decision on appeal where

the appellate court pronounces upon the merits (European Court of Human

Rights, "Wemhoff" and "Neumeister" cases, already cited).

In the present case the Federal Court only pronounced upon the merits

in its second decision of .. November 1973.

In the opinion of the Commission therefore, the period to be considered

lasted from .. May 1969 to .. November 1973, being altogether roughly

four years and six months.

The question whether the length of the criminal proceedings against the

applicant exceeded the limits of a reasonable time has to be decided

in relation to the particular circumstances of the proceedings

concerned, and, in particular, with regard to:

1) the complexity of the case as a whole;

2) the manner in which the case has been handled by the national

   judicial authorities and courts; and

3) the applicant's own conduct.

In the Commission's opinion there can be no doubt that the substance

and scope of the criminal proceedings against the applicant and his

co-accused were unusually complex, difficult and voluminous taking into

account that the indictment comprised altogether more than 400 counts

of fraud and mentioned a hundred witnesses of which 45 were in fact

heard at the first trial and about 25 at the second trial.

As regards the handling of the case by the German authorities and

courts, the following main procedural stages can be distinguished:

a) the preliminary investigations from .. May 1969 when the applicant

   was charged (newspaper publication) to .. March 1970 (filing of the

   indictment) = 10 months;

b) .. March 1970 to .. June 1971 = nearly 15 months, when the first

   trial court's decision was given;

c) .. June 1971 to .. August 1972 = 14 months - first appeal

   proceedings;

d) .. August 1972 to .. February 1973 = 6 months - second trial

   proceedings;

e) .. February 1973 to .. November 1973 = 9 months - second appeal

   proceedings.

The Commission considers that the period a) was, in view of the number

of fraud cases, not unusually long and there are no special

circumstances indicating that the proceedings were at this stage unduly

delayed.

As regards period b) the Government admits that a certain delay (about

4 months) was caused in that the trial was, contrary to the request of

the Public Prosecutor, started before the District Court which later

remanded the case to the Regional Court because it (the District Court)

was not competent to impose a sentence higher than three years'

imprisonment.

Otherwise there are again no circumstances indicating that the

proceedings were unduly delayed.

As regards period c) the Commission notes that the drafting of the

trial court's decision took nearly four months, a copy of the judgment

having been communicated to the applicant on .. October 1971. It is

however to be noted that the decision comprised 218 pages.

There are, in the opinion of the Commission, therefore, again no

circumstances indicating that the proceedings were unduly delayed. The

same reasoning applies, in the opinion of the Commission, to periods

d) and e).

The applicant's own conduct did not contribute considerably to the

length of the proceedings against him. His request of .. April 1970 for

preliminary court investigations was rejected on appeal on .. June 1970

and thus caused a delay of not even two months. Besides it was the

applicant's procedural right to make such a request.

His unexcused failure to attend the trial necessitated holding the

trial again but it cannot, however, be imputed to the applicant that

through his absence he induced the trial court to violate procedural

law.

On .. November 1971 the applicant requested his release. This request

was definitely rejected on .. December 1971 causing a delay of not even

one month.

Similarly a petition (Eingabe) made on .. September 1972 was disposed

of on .. October 1972 and thus only caused an insignificant delay.

Taken together it has however to be noted that it took the authorities

and courts about four months to dispose of appeals lodged by the

applicant which were - at least judged retrospectively - unnecessary

and apparently offered no prospects of success from the beginning.

Having thus considered all the elements in the case which appeared to

be material, the Commission concludes that the total period taken to

determine the criminal charges against the applicant was not

unreasonable. In this context it is again to be noted that the Federal

Court in its first decision of .. August 1972 already indicated that

the applicant's complaints as to the merits of the case were unfounded.

This means that although for formal reasons the trial had to be

repeated and the applicant consequently had another possibility of an

appeal, albeit knowing that it would in any event be unsuccessful, the

charges against the applicant were in fact determined on .. August

1972.For these reasons the Commission finds that there is no appearance of

a violation of Article 6 (1) (Art. 6-1) of the Convention. It follows

that this part of the application is manifestly ill-founded within the

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

III. The applicant has finally complained that he was wrongly

convicted and sentenced.

With regard to the judicial decisions of which the applicant complains,

the Commission recalls that, in accordance with Article 19 (Art. 19)

of the Convention, its only task is to ensure the observance of he

obligations undertaken by the Parties in the Convention. In particular,

it is not competent to deal with an application alleging that errors

of law or fact have been committed by domestic courts, except where it

considers that such errors might have involved a possible violation of

any of the rights and freedoms set out in the Convention. The

Commission refers, on this point, to its constant jurisprudence (see

e.g. decisions on the admissibility of applications No. 458/59,

Yearbook, Vol. 3, pp. 222, 232 and No. 1140/61, Collection of

Decisions, Vol. 8, pp. 57, 62).

In this particular case an examination of the complaint, including an

examination made ex officio, does not disclose any appearance of a

violation of the rights and freedoms set forth in the Convention. It

follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27, paragraph (2)

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

For these reasons, the Commission DECLARES THIS APPLICATION

INADMISSIBLE