THE FACTS

Whereas the facts presented by the applicant may be summarised as

follows:

The applicant is a German citizen, born in 1943 and at present in

detention on remand in Cologne.

From the applicant's statements and documents he has submitted it

appears that he was arrested on suspension of theft on .. April 1965.

He remained in detention on remand until .. August 1966, when he was

released on bail.

On .. March 1967, the applicant was again arrested on suspicion of

having committed three further thefts in the meantime. The applicant

claims, however, that he was innocent of these new offenses and that

he had been falsely accused by his wife out of revenge, because he had

left her for another woman.

The trial against the applicant and his 18 co-defendants, including

several members of his family, before the Regional Court (Landgericht)

of Bonn opened on .. March 1967, and lasted until .. June 1967, when

the Court passed judgment on all the defendants. The applicant was

convicted of 41 cases of aggravated theft, 30 cases of attempt to

commit such theft, 5 cases of theft and 1 case of fraud and sentenced

to a total term of seven years' penal servitude.

The applicant complains that he was wrongly convicted of the offenses

with which he had been charged by his wife. He maintains that the Court

failed in its duty to establish the truth in this respect and, in

particular, to call certain witnesses requested by him. He claims that

these witnesses were not heard as they, according to the Public

Prosecutor, were only gypsies and vagrants. He suffered substantial

prejudice during both the investigations and the trial because of

statements made by his younger brother Arthur who had a long criminal

record and, in the present proceedings, was found guilty of a very

large number of serious offenses.

The applicant lodged an appeal (Revision) with the Federal Court

(Bundesgerichtshof) against his conviction and sentence which still is

pending.

In June 1968, the applicant requested that he should be released. He

submitted that there was no danger of his absconding since he intended

to live with his wife, with whom he had been again reconciled, and

their children. His wife was now prepared to admit that she had falsely

accused him of the offenses concerned. His request was, however,

rejected by the Regional Court on .. June 1968. Two further requests

proved equally unsuccessful and an appeal to the Court of Appeal

(Oberlandesgericht) of Cologne was dismissed as being unfounded on ..

November 1968.

The applicant submits that, on .. December 1968, he was seized with

severe bilious pains which required immediate medical attention and he

asked for a doctor. When no doctor had arrived more than three hours

later, about 11 pm, the applicant knocked on the cell door to attract

the attention of the prison officers. Four prison officers then came

to his cell and started to beat him. Afterwards he was left lying on

the floor of the cell, although he was bleeding heavily from the mouth

and chin. About five hours later he was taken to see the prison doctor.

He was subsequently examined by a specialist at the University Clinic

in Bonn. According to the resulting medical report, dated .. December

1968, the applicant was suffering from a stomach and duodenal ulcer.

On .. December 1968, the applicant was transferred for medical care to

the hospital at Bochum.

On .. January 1969, the Regional Court rejected a new request for

release. The Court stated that the above medical report showed that the

applicant was fit for detention but in need of treatment. However, he

had without valid reasons refused the treatment offered at Bochum and

therefore been returned to the prison at Bonn. In view of a further

order by the presiding judge that the applicant should undergo

treatment in the Bochum hospital, there was no danger for the

applicant's health even if his detention continued. The applicant's

appeal against this decision was dismissed as unfounded by the Court

of Appeal in decisions of .. and .. January 1969.

The applicant then lodged an appeal against the Court of Appeal's

decisions with the Federal Constitutional Court

(Bundesverfassungsgericht) which, however, was declared inadmissible

on .. March 1969, on the ground that it had not been submitted in

proper form.

It appears that the Regional Court in March 1969 rejected a further

application for release, inter alia, on the grounds that the applicant

had recently absconded from the hospital.

From decisions submitted by the applicant it again appears that, on ..

April 1969, the Regional Court rejected an application for release made

by the applicant. The Court held that the applicant's detention on

remand was still justified for the reasons previously stated by the

courts, ie a strong suspicion of having committed the offenses

concerned, the danger of flight and the absence of any of the grounds

for release provided for in Article 116 of the Code of Criminal

Procedure (Strafgesetzbuch). The Court also emphasised that the

applicant had twice absconded.

The Court pointed out that the applicant's detention on remand had

lasted from .. April 1965, until .. August 1966, from .. March 1967

until .. February 1968, and from .. April 1968, onwards, ie by then for

a total of 3 years and 3 months. However, the applicant had been

convicted of a large number of offenses and sentenced to a total of

seven years' penal servitude and there was no reason to believe that

his appeal would succeed.

The Court further held that the provisions of Articles 5, paragraph

(3), and 6 paragraph (1), of the Convention had so far not been

violated. In view of the extent and difficulty of the investigations

concerned the period of detention preceding the pronouncement of the

judgment on .. June 1968, was clearly justified. Neither had the

applicant's continued detention pending appeal reaching such a stage

that his human rights had been violated. This would only be the case

if the proceedings had not been conducted with sufficient expediency.

Neither the Court nor the Public Prosecutor's Office could, however,

be accused of this.

The preparation of the judgment which comprised 556 pages as well as

the further handling of the case in which 14 of the defendants had

appealed required considerable time. Accordingly, the fact that the

files had not been transmitted to the Federal Attorney General

(Generalbundesanwalt) until .. September 1968, could not give rise to

criticism. The latter had twice returned the files to the Public

Prosecutor's Office on the ground that the judgment had not been

properly issued.

On .. October 1968, the reason given for the return of the files was

that the date when the minutes of the trial had been completed had not

been served on the parties. After the judgment had again been served

on them and the grounds of appeal submitted the Attorney General on ..

February 1969, again returned the files on the ground that the judgment

had not on two occasions been served on persons who had been authorised

to receive such documents by the defence counsels concerned. As a

result of these procedural errors the proceedings had been delayed for

about half a year. In view of the complexity of the case, it could,

however, be said with certainty that the Federal Court would not by

then have been able to give a decision, even if this delay had never

occurred. In any event, delays of this kind for which nobody could be

held responsible, could not be considered to be of such a serious

nature that a person in detention on remand would not have to put up

with them (in Kauf nehmen).

On .. May 1969, the Court of Appeal confirmed this decision.

The applicant lodged, however, several further complaints concerning

his detention. On .. July 1969, the Regional Court decided that the

applicant's detention should continue. The Court first stated that

reasons given in the decision of .. April 1969, were still valid. As

regards the provisions of Article 5, paragraph (3), of the Convention

a new circumstance was, however, to be taken into consideration, namely

that the files had only been returned to the Attorney General on .. May

1969. Owing to pressure of other work the official charged with

preparing the case would therefore not be able to transmit the case to

the Federal Court before the end of the autumn of 1969. Unless the

appeal would be rejected by summary decision (durch Beschluß), the

hearing could only take place in early 1970.

Assuming that Article 5, paragraph (3), applied until the conviction

had obtained the force of res judicata, the Court then examined the

question as to whether the notion of "reasonable time" in the said

paragraph should be given a different interpretation as regards the

period of detention subsequent to conviction by a court of first

instance. The Court answered this question in the affirmative. Less

consideration could be given to the applicant's wife and the alleged

possibility of saving their marriage if the applicant was released

since she had been an accomplice. In addition, the applicant had

recently applied for legal aid in order to bring an action for divorce.

Considering all these circumstances, as well as the fact that the

applicant had no previous criminal record and therefore possibly could

count on being conditionally released, the Court concluded that, for

the time being, the conditions under which the applicant should be

released from detention on remand by virtue of Article 5, paragraph (3)

of the Convention were not yet satisfied.

The applicant then lodged an appeal against the decisions of .. May and

.. July 1969, with the Federal Constitutional Court which, however, was

declared inadmissible on .. November 1969. No reasons were given for

this decision.

It appears that the Court of Appeal rejected a further request for

release on .. October 1969. As the applicant has neither submitted a

copy nor indicated the reasons for the decision.

The applicant complains of the length of his detention on remand and

the resulting hardships, in particular, the sufferings it causes his

wife and children. He complains that the Federal Court has not yet

decided on his appeal and that no decision is expected for some time.

In addition, all his co-defendants, including his brother Arthur Liebe,

have now been released and his continued detention can therefore not

be justified.

He does not invoke any specific Article of the Convention.

THE LAW

Whereas the applicant first complains of the length of his detention

on remand; whereas Article 5, paragraph (2) (Art. 5-2) of the

Convention states that "everyone arrested or detained in accordance

with the provisions of paragraph (1) of that Article (Art. 5-1) shall

be entitled to trial within a reasonable time or to release pending

trial";

Whereas it is further to be observed that, 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; whereas, before examining the

question whether or not the applicant's detention on remand was

unreasonable within the meaning of Article 5, paragraph (3) (Art. 5-3),

the Commission must first decide what period of detention is under

consideration and determine whether the applicant has exhausted the

domestic remedies available to him in this respect;

Whereas it is noted from the applicant's submissions that he has been

subject to three periods of detention on remand, namely from .. April

1965 until .. August 1966, from .. March 1967, until .. February 1968,

and from .. April 1968 and since;

Whereas, it regards the first two of these periods of detention, it is

to be observed that the applicant has not submitted any information as

to any court decisions taken on his appeal or otherwise;

Whereas, therefore, he has failed to show that he exhausted the

remedies available to him under German law;

Whereas, as regards the subsequent period of detention ie from .. April

1968, onwards, it is to be observed that the applicant was convicted

and sentenced at the Regional Court has had regard to the judgment of

the European Court of Human Rights in the "Wemhoff" case (European

Court of Human Rights, "Wemhoff" case, judgment of 27 June 1968);

Whereas, the European Court held that any period of detention clearly

starts with the applicant's arrest and ends on the date on which he was

convicted at first instance since, on that date, the detention ceased

to be "effected for the purpose of bringing him before the competent

legal authority" within the meaning of Article (5), paragraph (1) (c)

(Art. 5-1-c), of the Convention but constituted detention "after

conviction by a competent court" within the meaning of Article 5,

paragraph (1) (a) (Art. 5-1-a); whereas the Commission also refers to

its decision on the admissibility of Application No. 3376/56 (Rosenbaum

v. Federal Republic of Germany, Collection of Decisions, Vol. 29, p.

31);

Whereas the Commission finds accordingly that the remaining period of

detention to be considered under Article 5, paragraph (3) (Art. 5-3)

of the Convention, in the circumstances of the present case only lasted

from .. April until .. June 1967; whereas the applicant has again not

submitted any information as to what steps he undertook to obtain his

release during the period in question; whereas therefore he has, also

as regards this period of detention, failed to show that he exhausted

the remedies available to him under German law;

Whereas, 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;

Whereas, therefore, the condition as to the exhaustion of domestic

remedies laid down in Articles 26 and 27, paragraph (3) (Art. 26, 27-3)

of that Convention has not been complied with by the applicant;

Whereas the same ground of inadmissibility applies to the applicant's

complaints concerning his conviction and sentence;

Whereas in this respect it is to be noted that the applicant's appeal

against conviction and sentence is still pending before the Federal

Court;

Whereas, insofar as the applicant can be said to complain of the length

of the proceedings against him, the Commission has had regard to

Article 6, paragraph (1) (Art. 6-1), of the Convention which states

that "in the determination of ... any criminal charge against him,

everyone is entitled to a fair and public hearing within a reasonable

time";

Whereas the Commission finds that in the circumstances of the present

case, the period to be considered under paragraph (1) of the said

Article (Art. 6-1) started to run .. August 1965, the date on which the

applicant was first arrested, and is still running, ie a period of

almost three years and four months;

Whereas, having regard to this period, the Commission is called upon

to decide whether or not the proceedings against the applicant have

been prolonged beyond a reasonable time contrary to Article 6,

paragraph (1) (Art. 6-1), of the Convention;

Whereas, however, it is first to be noted that, in its present state,

the case-file does not contain any detailed information as to the

progress of the proceedings against the applicant, in particular with

regard to the period prior to his trial; whereas, from the applicant's

own statements and documents he has submitted, it appears that,

following his release from the first period of detention on remand, on

.. August 1966, he allegedly committed a number of further offenses,

of which he was subsequently convicted at the Regional Court, and went

into hiding until he was again arrested on .. March 1967;

Whereas, secondly, the Commission observes that the investigations and

court proceedings concerned dealt with a large number of serious

offenses and involved 18 other persons who were together accused with

the applicant; whereas in this connection the Commission refers to its

decision of 4 December 1968 on the admissibility of Application No.

3684/68 lodged against the Federal Republic of Germany by the

applicant's brother Y which concerned the same proceedings;

Whereas the Commission finds that the particular circumstances of the

present case, as it has been submitted, do not warrant the conclusion

that the proceedings against the applicant have exceeded a "reasonable

time" within the meaning of Article 6, paragraph (1) (Art. 6-1), of the

Convention;

Whereas it follows that this part of the application is manifestly

ill-founded and must be rejected in accordance with Article 27,

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

Whereas, insofar as the applicant complains of having been refused

adequate medical care during his detention, an examination of the case

as it has been submitted, including an examination made ex officio,

does not disclose any appearance of a violation of the rights and

freedoms set forth in the Convention; whereas it follows that also this

part of the application is manifestly ill-founded within the meaning

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

Whereas, finally, insofar as the applicant complains that he has been

ill-treated by prison officers, it is again to be observed that, 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; and whereas the

applicant has failed to show that he had raised any complaint in this

respect before the competent courts and authorities;

Whereas, therefore, he has not exhausted the remedies available to him

under German law; whereas, therefore, the condition as to the

exhaustion of domestic remedies laid down in Articles 26 and 27,

paragraph (3) (Art. 26, 27-3) of that Convention has not been complied

with by the applicant.

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE