THE FACTS

The facts of the case as submitted by the applicant may be summarised

as follows:

The applicant is a German citizen, born at Dessau on .. March 1929.

When lodging his application, he was detained at the B.. prison.

On .. September 1970, he was arrested on suspicion of rape and taken

into custody on remand (Untersuchungshaft). On .. December 1970, the

Court of Jurors (Schöffengericht) at M.. sentenced the applicant to 21/2

years' imprisonment. It appears that the applicant's appeal (Berufung)

against this judgment was rejected by the Regional Court (Landgericht)

at B.. mid-February  1971, and that an appeal on points of law

(Revision) is now pending before the Court of Appeal

(Oberlandesgericht) at Hamm.

In his application to the Commission, the applicant complains mainly

of the procedure concerning his detention on remand which began on ..

September 1970, the date of his arrest.

On .. October 1970 the applicant petitioned through his lawyer the

County Court (Amtsgericht) of M. to set a date for a hearing to

pronounce itself on the lawfulness of the detention, and to order his

release. He received no answer to this petition.

On .. November 1970, the President of the Court of Jurors

(Schöffengericht) at Minden opened court proceedings against the

applicant and decided that his detention on remand would continue. He

set the date for the main hearing for .. December 1970.

On .. November 1970, the applicant lodged an appeal (Beschwerde)

against this decision on the basis of Article 118 of the Code of

Criminal Procedure which provides that the decision on the lawfulness

of the detention, at the request of the accused, should be given after

an oral hearing, which should take place promptly (unverzüglich);

without agreement of the accused, the date for the hearing may not be

determined later than two weeks after his petition.

The applicant's appeal (Beschwerde) was not submitted to the Court, but

on 24 November 1970 the President of the Court consulted with the

applicant's lawyer who agreed that the lawfulness of the detention

would be examined during the main hearing. On the same day, after his

lawyer had informed him about this, the applicant asked the Court in

writing to speed up its decision about the detention on remand.

On .. November 1970 the President decided that on .. December 1970 the

main hearing as well as the hearing on the lawfulness of the detention,

would take place.

On .. December 1970 the Court of Jurors (Schöffengericht) at M..

decided that the detention on remand would be continued and it thereby

rejected the applicant's appeal (Beschwerde) of .. November 1970. On

.. December 1970 the applicant lodged an appeal (Beschwerde) with the

Regional Court (Landgericht) at B.., complaining of the way in which

his original complaint had been dealt with. On .. December 1970 the

Regional Court (Landgericht) at B.. decided:

(a) that the applicant's complaint itself was justified, since in

violation of Article 118 of the Code of Criminal Procedure, no oral

hearing on the petition had been fixed promptly or within two weeks

from the date of petition;

(b) that, however, in the meantime the appeal had become meaningless

(gegenstandslos) since no separate hearing on the detention had in fact

taken place before the main hearing. The Court decided that the costs

of this appeal procedure would not be charged to the applicant.

On .. January 1971, the applicant lodged against this decision a

further appeal (weitere Beschwerde) with the Court of Appeal

(Oberlandesgericht) at H.. which upheld, however, by decision of ..

April 1971, the decision of the Regional Court at B..

Complaints

1. With regard to the failure of the Court of Jurors at M.. to set a

date for a hearing on the lawfulness of his detention, in conformity

with Article 118 of the Code of Criminal Procedure, the applicant

alleges to be a victim of a violation of Article 5 (4) of the

Convention, and he considers himself entitled to compensation on the

basis of Article 5 (5).

2. He further complains that his conviction by the said court was based

on the fact that he abstained from giving evidence. This amounts, in

the applicant's opinion, to a violation of Article 6 (2).

THE LAW

1. The applicant has complained that after his arrest on .. September

1970, his repeated requests for a separate hearing as to the lawfulness

of his detention have not been granted, and it was not until ..

December 1970, at the main hearing of his case, that the Court of

Jurors at M.. held a hearing to examine the question of the lawfulness

of the detention. The applicant alleges that this amounts not only to

a violation of Article 118 of the German Code of Criminal Procedure,

as has been confirmed by decisions of the Regional Court at B.. and the

Court of Appeal at Hamm, but also to a violation of his rights under

Article 5 (4) (Art. 5-4) of the Convention, providing that "everyone

who is deprived of his liberty by arrest or detention shall be entitled

to take proceedings by which the lawfulness of his detention shall be

decided speedily by a court and his release ordered if the detention

is not lawful".

However, the Commission observes that this Article does not stipulate

that the proceedings to determine the lawfulness of a person's

detention should be separate from the proceedings relating to the

criminal charge against him, nor does it specify a time-limit within

which the lawfulness of the detention must be decided.

In the present case, the applicant was granted within three months of

his arrest a public hearing, at which the Court decided both on the

lawfulness of his detention and on the criminal charges against him.

The Commission finds that the proceedings were thus conducted with due

expedition and it does not consider that there is any appearance of a

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

in particular in Article 5 (4) (Art. 5-4).

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.

2. The applicant has further complained that his conviction by the

Court of Jurors at M. was based on the fact that he abstained from

giving evidence and that thereby this right to a presumption of

innocence under Article 6 (2) (Art. 6-2) of the Convention has been

violated. However, the applicant has not submitted the slightest

evidence to support this allegation. The Commission does not find any

appearance of a violation of the rights and freedoms set forth in the

Convention and in particular in Article 6 (2) (Art. 6-2).

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.

For these reasons, the Commission DECLARES THIS APPLICATION

INADMISSIBLE.