THE FACTS

A. Whereas the facts presented by the Parties and apparently not in

dispute between them may be summarised as follows:

I. The applicant is a German citizen, born in 1915 and at present

detained in prison in Hamburg. His application concerns the length of

his detention on remand.

The applicant was arrested on 7th September, 1961, under the suspicion

of the murder of Jews in several cases committed in 1942/43 when he was

serving as a subordinate police officer (Polizeisekretär) and member

of the SS at Rabka in German Occupied Poland (Generalgouvernement

Polen). The trial opened before the Regional Court (Schwurgericht) of

Hamburg on 3rd May, 1968. On 15th August, 1968 he was convicted for

murder in 18 cases involving some 148 persons and sentenced to penal

servitude (Zuchthaus) for life. The Hamburg Regional Court further

decided that the applicant should be deprived of his civic rights for

life. The applicant's appeal (Revision) against the decision is still

pending before the Federal Court (Bundesgerichtshof).

II. The development of the criminal proceedings against the applicant

was as follows:

In August 1961 the results of enquiries, which had been made by the

Land Judicial Administrations Office (Zentrale Stelle der

Landesjustizverwaltungen) at Ludwigsburg regarding offenses alleged to

have been committed by the applicant during 1942/43, were communicated

to the Public Prosecutor's Office (Staatsanwaltschaft) in Hamburg. On

the basis of this material the Public Prosecutor's Office made an

application to the District Court (Amtsgericht) in Hamburg for the

applicant's arrest. A warrant of arrest was issued by the District

Court on 16th August, 1961 and on 7th September, 1961, the applicant

was arrested at his home in Hamburg and remanded in custody.

The Hamburg Public Prosecutor's Office began interrogating the

applicant on 12th September, 1961. After having first denied that he

had ever shot any Jews, the applicant confessed on 16th October, 1961

that Jews had indeed been shot in the area of the Rabka School and that

he himself had participated in the shootings, partly through

subordinate officials, partly personally.

The applicant alleged having acted under the orders of his superior

officer, namely Obersturmbannführer Dr. G. who was Officer in Charge

of the Security Police (Kommandeur der Sicherheitspolizei) in the

District of Cracow. Consequently, the Public Prosecutor's Office

proceeded to ascertain and trace the members of that unit in order to

find out whether or not it was possible, having regard to the

hierarchical order of command existing in Poland at that time, that the

applicant could have received such orders from Dr. G..

During the investigations it became clear that the applicant, who had

been an official in charge of administration at the Rabka School of the

Security Police and, as such, concerned with administrative matters

relating to the School only, could not have received any orders from

the Officer in Charge of the Security Police. The investigations

further showed that other Officer never had any competence with regard

to the School at Rabka which had been under the command of the

Commanding Officer of the Security Police (Befehlshaber der

Sicherheitspolizei). These conclusions had been supported by the

evidence given on 23rd May, 1962, by Dr. G.'s former secretary, who

stated that the applicant had not received any orders from Dr. G. for

the liquidation of Jews at Rabka.

On 12th June, 1962, the applicant himself admitted that he had not

received any orders from Dr. G. to shoot Jews but that these orders had

been given him by the Commanding Officer of the Security Police, Dr.

S. He explained that he had been trying to protect Dr. S.'s widow and

family.

In the course of subsequent interrogations the applicant alleged that

he had shot several so-called "Working Jews" (          ) who had been

sent to him from the District of Neumarkt after having been sentenced

to death. He explained that these persons had been sent to him by the

former Senior Official (Dienststellenleiter) at Neu-Sander, H, as

possible labourers. However, when confronted with H. on 7th December,

1962, the applicant changed his previous statement and said that the

persons concerned had not been "death candidates" but persons sent to

him by the Labour Office to do work.

The applicant now declared that the former Senior Official of the Unit

of Border Police (Grenzpolizeikommissariat) at Zakopane, W., had been

responsible for some of the killings in the area of the Rabka School.

He added that Unit had shot between 20 and 100 Jewish men and women in

connection with a so-called "action involving communists"

(Kommunistenaktion) and hanged about  11 other Jewish persons. However,

after having been confronted with Mr. N., a former member of the

Zakopane Unit, the applicant admitted on 21st May, 1963, that he

himself had shot Jewish persons who were either no longer fit to work

or who were cripples and he alleged that he had acted upon the orders

of the Commanding officer of the Security Police.

In the meanwhile, the Public Prosecutor's Office in Hamburg had

examined numerous witnesses who were, to a considerable extent, Jewish

persons resident in the United States of America or Israel. Between 1st

March and 6th June, 1963, the applicant was heard in regard to the

incriminating evidence given by these Jewish witnesses. As a result of

the counter-allegations made by the applicant it was necessary to

re-examine certain of these witnesses and this took place as regards

those witnesses resident in Israel up to the end of 1963. Subsequently,

from 29th January, 1964 until 5th March, 1964 the answers of these

Israel witnesses were discussed with the applicant.

Between April and June 1964 the witnesses resident in the United States

were heard on the applicant's above counter-allegations. The applicant

was himself interrogated again on 16th December, 1964.

On 25th March, 1965, the Public Prosecutor's Office made an application

to the investigating judge (Untersuchungsrichter) to open an

preliminary judicial investigation (richterliche Voruntersuchung)

against the applicant in accordance with

Article 178 et seq. of the Code of Criminal Procedure

(Strafprozessordnung). This investigation was opened on 21st April,

1965 and the applicant was informed that the investigating judge

intended to hear him on 4th May, 1965. His request for an adjournment

of this hearing, on the ground that his defence counsel was prevented

from attending, was rejected. At the hearing on 4th May, 1965, the

applicant refused to make any statements in the absence of his counsel

and the judicial investigation was closed on 5th May, 1965, without any

further enquiries.

On 29th October, 1965, the Public Prosecutor filed the indictment

(Anklageschrift) with the Regional Court (Landgericht) of Hamburg. In

this indictment the applicant was formally charged with murder in

several cases. It was served on applicant's counsel on 15th November,

1965, and 15th December, 1965 fixed as the time-limit for replying to

the charge. On 2nd December, 1965, the applicant asked for an extension

of time until 15th February, 1966; on 31st January, 1966, he asked for

a further extension until 1st May, 1966.

On 28th April, 1966, counsel for the applicant requested a new judicial

investigation but this request was rejected by the Regional Court's

decision of 3rd June, 1966, committing the applicant for trial. On the

applicant's appeal (Beschwerde) the Court of Appeal (Oberlandesgericht)

set aside the decision of the Regional Court on 7th July, 1966, and

ordered a new judicial investigation.

The investigating judge the fixed 16th August 1966 as the date on which

the applicant should be heard. The applicant's lawyers, Dr. X. and Mr.

Y., who had been appointed as his defence counsel under the applicable

legal aid system (Armenrecht) on 16th May, 1966 and 5th July, 1966

respectively, objected to that date on the ground that they had

previous engagements and also intended to go on holiday. Consequently,

a new date was fixed for 28th September, 1966.

On 10th July and 11th October, 1966, counsel for the applicant moved

to take further evidence. These motions were in part granted.

A psychological and psychiatric examination of the applicant was

carried out in the mental hospital of Hamburg-Ochsenzoll between 28th

December, 1966 and 7th February, 1967 as a result of which the

applicant was found to be physically capable to remain in detention and

to stand trial.

The further judicial investigation was then closed on 31st March, 1967.

On 9th May, 1967, the applicant was heard by the Public Prosecutor

as to the result of the investigation (Schlussgehör), in accordance

with Article 69 b of the Code of Criminal Procedure. An application

by counsel to discontinue the proceedings in respect of some of the

charges was rejected as was his request again to re-open the judicial

investigation.

On 10th May, 1967, the Public Prosecutor filed a new indictment with

the Regional Court which was substantially the same as the previous

indictment of 29th October, 1965. The applicant again moved to re-open

the judicial investigation but this was refused by the Regional Court

and, on appeal, by the Court of Appeal on 15th August, 1967.

In the meanwhile, on 14th June, 1967, the proceedings against the

applicant had been opened before the Regional Court (Schwurgericht) of

Hamburg. Since both counsel for defence had other previous engagements,

the trial itself did not start until 3rd May, 1968. It lasted until

15th August, 1968 and on that day, the applicant was convicted for

murder in 18 cases and sentenced to penal servitude for life. He

appealed to the Federal Court (Bundesgerichtshof) against this decision

but the appeal proceedings are still pending.

III. During the period of the applicant's detention on remand the

courts examined on numerous occasions the lawfulness of his detention.

On each of these occasions the courts found that it was not possible

to order the applicant's release pending trial, not even against

certain guarantees, since the danger of his absconding (Fluchtgefahr)

persisted. In this connection, the following facts appeal from the

submissions of the Parties:

On 4th October, 1962, the applicant made an application for his

conditional release (Haftverschonung) which was rejected by the

Regional Court in Hamburg on 31st October, 1962. The applicant did not

challenge this decision.

On 4th March, 1963, the applicant voluntarily handed his passport to

the authorities in order to demonstrate that he did not intend to

abscond and, on 11th March, 1963, he sought his release on an offer of

bail of 60,000 DM. The Attorney-General (Generalstaatsanwalt), however,

objected on the ground that neither bail nor other guarantees could

eliminate the danger of his flight.

On 4th June, 1963, the applicant submitted to the Regional Court in

Hamburg his first application for release pending trial

(Haftbeschwerde) which was dismissed on 24th June, 1963. The Regional

Court found that, insofar as it was likely at the present stage of the

investigations that the applicant would be convicted for murder, there

was a considerable danger of his absconding. The applicant lodged with

the Hanseatic Court of Appeal an appeal (Beschwerde) against this

decision but this was rejected on 31st July, 1963. The Court examined

the charges laid against the applicant and the evidence collected so

far. It found that there was considerable evidence of his guilt and

that, in view of the penalty to be expected in case of his conviction

for murder, there was a substantial danger of his absconding which

could not be eliminated by the applicant's personal situation, the

length of his actual detention on remand, or any offer of bail made by

him.

Since 1963 the courts examined regularly and ex officio in accordance

with Article 117, paragraph (5), or Articles 121, 122 of the Code of

Criminal Procedure, the lawfulness of the applicant's continued

detention on remand. Decisions were taken by the Hamburg District Court

on 30th December, 1963, 1st April, 1964, 30th September, 1964, 6th

October, 1964 and 30th March, 1965, and on each occasion the Court

decided that his detention on remand should continue since the reasons

for detention continued. On 6th October, 1964, the District Court also

amended the warrant of arrest of 16th August, 1961 specifying the

charges laid against the applicant and rejected a further application

for conditional release on bail on the ground that the danger of

absconding was not eliminated by the guarantees offered.

On 10th June, 1965, the warrant of arrest was again amended, the

investigating judge of the Hamburg Regional Court specifying the

charges against the applicant by taking into account the evidence

collected against him. The warrant of arrest was again based on the

danger of the applicant's absconding.

On 28th June, 1965, the applicant made an application to the Hamburg

Court of Appeal requesting his release pending trial but this was

refused by decision of 20th August, 1965. The

Court referred to its decision of 31st July, 1963 confirming against

that there was considerable evidence of the applicant's guilt as a

principal (Täter oder Mittäter) and not simply as an accessory

(Gehilfe). It then found that the magnitude of the proceedings which

had not yet reached the stage when judgment could be passed, justified

his continued detention on remand.

A similar decision was taken by the above Court of Appeal on 2nd

December, 1965. The Court pointed out that the applicant was charged

with  17 counts of murder, the penalty for conviction on each count

being imprisonment for life. In these circumstances there was

considerable danger of absconding and this could not be eliminated by

any measure short of continued detention on remand.

The Hanseatic Court of Appeal decided again on 10th March, 1966 that

the applicant's detention should continue. The Court referred to its

previous decisions and pointed out, in particular, that the applicant's

conduct immediately preceding his arrest - he had returned of his own

free will to the Federal Republic of Germany from abroad - his

family-ties, business or property were not calculated to eliminate the

danger of flight.

A similar decision was taken by the Hamburg Court of Appeal on 7th

July, 1966, the Court simply referring to its decisions of 20th August,

1965, 2nd December, 1965, and 20th March, 1966.

On 21st October, 1966, the said Court of Appeal decided once more that

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

that the investigations extending to 17 separate counts of murder, each

involving up to 60 persons, were so complicated that it had not yet

been possible to bring the matter to a close. It had been necessary to

obtain evidence from numerous witnesses living abroad many of whom had

to be re-examined after their initial statements had been put to the

applicant. The applicant himself had contributed considerably to the

delay in that, at the beginning of the investigations against him, he

had made statements that were untrue and caused further investigations

to be made. This conduct exceeded the right of any accused person not

to make any statements at all.

The Court finally referred to the relationship between the individual's

right to liberty and the obligation on the part of the State of

ascertaining the complete facts of the case and of prosecuting

criminals. The Court held that, where Nazi crimes are involved, the

obligation of the State to complete its task was particularly important

and required the individual concerned to bear a restriction of his

personal freedom even more so than in a case involving an ordinary

criminal offense.

On 15th December, 1966, the Regional Court of Hamburg decided that the

applicant should be submitted to psychological and psychiatric

examination. In pursuance of that decision the applicant was in

hospital at Hamburg between 28th December, 1966 and 7th February, 1967.

On 19th April, 1967, the investigating judge of the Hamburg Regional

Court rejected another application made by the applicant for his

conditional release. The applicant appealed (Beschwerde) against this

decision to the Regional Court of Hamburg. The appeal was dismissed by

the Regional Court on 26th April, 1967 and his further appeal (weitere

Beschwerde) to the Hanseatic Court of Appeal was rejected on 16th May,

1967.In their decisions, the Courts pointed out that under present

travelling conditions it was not difficult to cross borders, even

without proper identity papers. Once abroad, a person accused of having

committed Nazi crimes against Jews as opposed to a person accused of

normal crimes, would not have to fear being caught and extradited,

since there were numerous countries that refused extradition for Nazi

crimes. In addition, in was known that, acting in accordance with its

statutes, "Interpol" refused to give any assistance in these cases.

Consequently, in the opinion of the Courts, the applicant's appearance

for trial could be guaranteed only by keeping him in detention on

remand.

The Hanseatic Court of Appeal examined the lawfulness of the

applicant's detention on remand again on 12th September, 1967, and

decided that it should continue. It referred to the decision by which

the Regional Court had rejected, on 14th June, 1967, the applicant's

application to re-open the judicial investigation and had committed the

applicant for trial. Consequently, the authorities were prepared to

begin the trial during the next session of the Regional Court. The fact

that the applicant's lawyers had previous engagements and that,

therefore, the trial could not start before the end of March, 1968

could not be regarded as grounds for ordering his release pending

trial.

A similar decision was taken by the Court of Appeal on 14th December,

1967.On 8th January, 1968 the Regional Court of Hamburg refused once more

to grant the applicant a conditional release from detention on remand.

This decision was confirmed on appeal to the Hanseatic Court of Appeal

on 19th January, 1968. The applicant had relied on the fact that

another person accused of Nazi crime, Dr. A., had been granted a

conditional release but the Courts, in refusing the applicant's

application, held that the circumstances of that case were to be

distinguished.

The last decision concerning the applicant's detention pending trial

was taken by the Hamburg, Court of Appeal on 20th March, 1968. The

Court stated that there had not been any unreasonable delay in

preparing for the trial in view of the complexity of the case and of

the previous engagements of the applicant's lawyers. Furthermore, the

trial court had, in the meanwhile, had time to consult the files

relating to the Nazi compensation claims in order to determine which

of the witnesses living abroad could be examined in Hamburg and which

should be heard abroad.

As stated above, the applicant was convicted for murder on 15th August,

1968 and sentenced to penal servitude for life. His appeal to the

Federal Court is still pending.

B. Whereas the proceedings before the Commission may be summarised as

follows:

The applicant was lodged on 16th October, 1967 and on 31st October,

1967 registered in the special register of the Secretariat of the

European Commission of Human Rights under file No. 3376/67.

On 4th April, 1968 a group of three members of the Commission examined

the application and unanimously expressed the opinion that it appeared

to be admissible. In pursuance of the group's report the President of

the Commission, on 5th April, 1968, made an order under Rule 45,

paragraph 2 of the Commission's Rules of Procedure that the application

should be communicated to the respondent Government and that the

Government should be invited to submit its observations in writing on

the admissibility of the application. Such observations were received

from the respondent Government on 6th June, 1968 and 28th October, 1968

and from the applicant on 16th April, 1968 and 24th June, 1968.

On 4th October, 1968 the Commission further decided that the Parties

should be invited, in pursuance of Rule 46, paragraph 1 of the Rules

of Procedure, to make oral submissions on the admissibility of the

application.

The oral hearing took place on 4th February, 1969. At the beginning of

the hearing the applicant's lawyer made, on behalf of the applicant who

was not himself present, certain preliminary objections against the

presence of the representative of the Public Prosecutor 's Office at

the Regional Court of Hamburg and against the intention of the

respondent Government that the latter should address the Commission.

After arguments on this point had been submitted by both sides, the

Commission decided, with reference to Article 36 of its Rules of

Procedure, not to allow the preliminary objections made on behalf of

the applicant.

Subsequently, the applicant's lawyer repeated his objection to the

Commission being addressed by the representative of the Hamburg Public

Prosecutor's Office and stated that he would be obliged to withdraw

from the hearing if his objection were rejected. He also requested

that, before leaving he should be allowed to make some oral submissions

on the admissibility of the applicant.

Again the Commission heard arguments from both sides on this point and

then decided to proceed with the hearing and to hear the

representatives of the respondent Government first. At this stage the

applicant's lawyer withdrew from the hearing. The Commission also

decided not to accept a written statement which the applicant's lawyer

had handed to the Commission before leaving the hearing. This statement

had been prepared by the applicant himself and had been intended to be

used as a basis for the oral submissions.

C. Whereas in his application form, and in his written submissions, the

applicant alleges a violation of Article 5, paragraph (3), in

conjunction with Article 6, paragraph (2), of the Convention;

Whereas the respondent Government has replied to these allegations in

its written observations of 6th June and 28th October, 1968, and at the

oral hearing on 4th February 1969;

Whereas the arguments of the Parties may be summarised as follows:

1. The respondent Government submitted that the applicant's complaints

regarding the length of his detention on remand were manifestly

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

Convention;

It pointed out at the outset that the problems with which the

authorities are confronted when dealing with Nazi crimes were of a very

special nature. These crimes had been sanctioned by the Government then

in power which had enacted laws and regulations in order to make their

criminal action appear lawful. They represented the result of a scheme

conceived to exterminate an entire People, the Jews, whenever and

wherever they could be found.

Investigating these crimes more than 20 years after their committal was

extremely difficult. Such investigations required the examination of

a large number of witnesses scattered all over the world whose

whereabouts could only be ascertained with great difficulty and who

were frequently not prepared to give evidence for fear of having to

recall to their memory the terrible events of the past.

In the case of the applicant, the prosecuting authorities had been

obliged to examine almost 500 witnesses in the Federal Republic of

Germany, Austria, Israel, Poland, France and the United States of

America. Some 90 of these witnesses had to be re-examined in view of

the fact that the applicant had changed his line of defence or

submitted new facts. The respondent Government pointed out that

photocopies of the entire files had been made and sent abroad in order

to facilitate the examination of witnesses and expedite the

investigation proceedings. Furthermore, the Public Prosecutor dealing

with the case had travelled to the United States of America on two

occasions to assist in the examination of witnesses in that country.

Moreover, the proceedings would not have been expedited if more than

one Public Prosecutor had been assigned to the applicant's case or if

a judicial investigation had been made at an earlier date. The

complexity of the matter required that the official dealing with the

case should be acquainted with all its details. Furthermore, it had

been more expedient to have the case thoroughly investigated by a

Public Prosecutor who dealt exclusively with Nazi crimes and was

familiar with their historical background than to transfer the case

prematurely to the investigating judge who is generally concerned with

other proceedings of ordinary delinquency and cannot devote his entire

time to the clarification of one single case involving a Nazi criminal.

On the other hand, according to the respondent Government, the

applicant's varying statements and the varying line of his defence had

prolonged the proceedings considerably. This had been done deliberately

in order to gain time since the applicant did not wish to be the first

person to be tried by a Hamburg court for Nazi crimes and also expected

that some of the witnesses might die or become otherwise unable to give

evidence against him at the trial. Finally, the respondent Government

submitted that it had not been possible to release the applicant

pending trial owing to the danger of his absconding. In that respect

it referred to the reasons given by the Hamburg courts in their

decisions relating to the applicant's continued detention on remand and

the Government also relied on the judgment of the European Court of

Human Rights in the "Wemhoff" Case (European Court of Human Rights,

"Wemhoff" Case, judgment of 27th June, 1968).

2. The applicant submitted that the investigation against him had not

been carried out with sufficient speed and stated, in particular, that

only one Public Prosecutor had been in charge of his case although it

was usual to employ several officials in such complex investigations.

Furthermore, the official concerned had simultaneously been occupied

by other cases. The applicant also considered that the Public

Prosecutor's Office should have requested a preliminary judicial

investigation as early as possible. A judge would have heard the

witnesses of the defence at an early stage of the proceedings. This,

however, had not been done by the Public Prosecutor.

The applicant also submitted that his own conduct had not protracted

the investigation proceedings. In particular, the evidence regarding

Mr. G. had been given by him not with the intention to mislead the

prosecuting authorities but simply to protect the wife and family of

Dr. S..

The applicant further submitted that there had been no danger of his

absconding and that he should have been released on bail. In

particular, he had no intention of leaving Hamburg where his family

lived and where he was engaged in business. He had returned from abroad

in 1961 at his own free will and had put himself at the disposal of the

authorities and had also facilitated the enquiries by making a full

confession. Furthermore, the principle of equality had been violated

in his case in that other persons accused of Nazi crimes, in particular

Dr. A., had been granted a conditional release from detention on

remand.

Finally, the applicant considered that any detention on remand of more

than 6 years constituted an anticipated conviction and sentence.

Referring to a remand prisoner's uncertainty as to the outcome of his

trial, he concluded that detention on remand for more than 6 years also

constituted a physical and psychological stress which was likely to

undermine the prisoner's health and his ability to defend himself.

THE LAW

Whereas Article 5, paragraph (3) (Art. 5-3), of the Convention states

that everyone arrested or detained in accordance with the provisions

of paragraph (1), sub-paragraph (c) of that Article (Art. 5-1-c) "shall

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

trial", whereby "release may be conditioned by guarantees to appeal for

trial";

Whereas Article 6, paragraph (2) (Art. 6-2), provides that "everyone

charged with a criminal offence shall be presumed innocent until proved

guilty according to law";

Whereas it is not disputed that the applicant was arrested on 7th

September 1961 on suspicion of murder; that he had been continually

detained since that date, his various applications for release from

custody having been rejected by the competent German courts; and that,

on 15th August, 1968 he was convicted by the Regional Court of Hamburg

for murder in 18 cases and sentenced to penal servitude for life.

Whereas the applicant alleges that his detention pending trial for over

six years constitutes a clear violation of Article 5, paragraph (3),

and 6, paragraph (2) (Art. 5-3, 6-2) of the Convention;

Whereas the respondent Government submits that the investigations in

the applicant's case concerned particularly serious offences; that the

case was extremely complex and difficult but nevertheless carried out

with the greatest possible expedition; and that it had not been

possible to guarantee the applicant's appearance before the court for

trial in any way other than keeping him in continuous detention on

remand;

Whereas, when determining the question whether or not the period of 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;

Whereas, in this respect, the Commission has had regard to the judgment

of the European Court of Human Rights in the "Wemhoff" Case (see

European Court of Human Rights, "Wemhoff" Case judgment of 27th 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 finds accordingly that such period of detention

in the present case lasted from 7th September, 1961, being the date of

the applicant's arrest, until 15th August, 1968, being the date of his

conviction at first instance, namely a period of exactly six years,

eleven months and eight days.

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

decide whether or not the applicant's provisional detention has been

prolonged beyond a reasonable time and was thereby contrary to Article

5, paragraph (3) (art. 5-3), of the Convention;

Whereas it has been established that he provisions of Article 5,

paragraph (3) (Art. 5-3), do not simply leave the national judicial

authorities with a choice between two obligations, namely that of

conducting within a reasonable time the proceedings until judgment or

that of releasing the accused pending trial, if necessary against

certain guarantees;

Whereas, on the contrary, they require that national courts determine,

in the light of the fact of the detention of the person being

prosecuted, whether the time that has elapsed before judgment is passed

has at some stage exceeded a reasonable limit, that is to say imposed

a greater sacrifice than could, in the circumstances, reasonably be

expected of a person presumed to be innocent. (see European Court of

Human Rights, "Wemhoff" Case, paragraph 5 of the Law);

Whereas it has also been established that this question is not to be

decided in abstracto but to be considered in the light of the

particular circumstances of each case; whereby the factors which may

be taken into consideration are extremely diverse (see European Court

of Human Rights, "Wemhoff" Case, paragraph 10 of the Law: see also

Appendix XI to the Commission's Report in the Wemhoff Case);

Whereas, having regard to the judgments of the European Court of Human

Rights in the "Wemhoff" and "Neumeister" Cases of 27th June, 1968, the

Commission finds that there are two principal questions which must be

examined when deciding upon the reasonableness of any period of

detention on remand;

Whereas, first, the Commission must determine whether the reasons given

by the national authorities to justify continued detention are relevant

and sufficient to show that detention on remand was not unreasonably

prolonged and thus contrary to Article 5, paragraph (3) (Art. 5-3), of

the Convention; and whereas, secondly, the Commission must determine

whether or not, even assuming that there was good cause not to release

the applicant pending trial, the national judicial authorities have

conducted the case in a manner which unreasonably prolonged the

detention on remand, thus imposing on the applicant a greater sacrifice

in the interest of public order than could normally be expected of a

person presumed to be innocent.

Whereas, in respect of the first of these questions it is to be

observed that, in the present case, the arrest warrant issued on 16th

August, 1961 was expressly based on the ground that the applicant would

abscond if he were left at liberty; whereas, this reason continued to

be invoked in the court decisions in which, on numerous occasions, the

lawfulness of his continued detention was examined ex officio and in

which the applications made by the applicant for his conditional

release were rejected;

Whereas, the Commission notes that present day border controls are

calculated to facilitate international travel and are not, therefore,

strictly enforced,  that, in view of the special nature of the crimes

concerned, various countries refuse to extradite persons accused of

such crimes; whereas consequently, there are few technical obstacles

which would have prevented the applicant from leaving the Federal

Republic of Germany and that he would not have run any considerable

danger of being caught and extradited, after having taken up residence

in a country refusing extradition for Nazi crimes;

Whereas the Commission finds that the danger of absconding increases

as the investigations continue and the evidence against the accused

gradually accumulates; whereas, in the present case, the evidence

collected was continually put before the applicant who was able to

state his views thereof; whereas, therefore, he was fully aware of the

state of the investigation and knew that there was considerable

evidence against him thereby making his conviction more and more

probable;

Whereas, furthermore, the applicant was accused of murder in several

cases involving a large number of victims; whereas, under the

applicable law, he faced imprisonment for life even if he should be

convicted on only one count of murder; whereas it is true that,

generally speaking, the risk of an accused person absconding diminishes

as detention continues and it tends to reduce the balance of the

sentence which he may expect to have to serve; whereas, however, such

reasoning does not apply where the accused is charged with murder the

penalty for which is penal servitude for life;

Whereas the Commission notes that the German courts assumed that the

applicant would, if he were set free, abscond and would thereby,

subsequently, avoid appearing for trial even if certain financial or

other guarantees were previously obtained from him; whereas, for the

reasons stated above, the Commission considers that the grounds relied

on by the courts in reaching this assumption were relevant and

sufficient;

Whereas, on the other hand, as has been stated above, the danger of

absconding, however justified such danger must be, cannot alone exempt

the judicial authorities from the obligations imposed by Article 5,

paragraph (3) (Art. 5-3), of the Convention where they themselves are

shown to have conducted the case in a manner which has unreasonably

prolonged the applicant's detention on remand;

Whereas, in this respect, the Commission had regard to the complexity

of the present case and also to the conduct of the applicant himself

in connection with the proceedings against him; whereas it has noted

the special nature of the charges laid against the applicant;

Whereas the crimes with which the applicant was charged and on which

he was finally convicted and sentenced at first instance, were

committed more than 20 years ago; whereas they were not directed

against a

single person or a small group of persons but involved numerous victims

since they were part of a large scale scheme calculated to exterminate

the Jews as an entire people; whereas, furthermore, the persons who

survived and who are primarily in a position to give evidence of these

crimes, are widely scattered;

Whereas, in the present case, it had been necessary for the prosecuting

authority not only to establish the extent to which crimes had been

committed by the applicant, but also to find out whether he had acted

as a principal or as an accessory;

Whereas in order to achieve this task the prosecuting authority had

been required first to obtain a general picture of the situation

existing in Poland and particularly at the Rabka School in 1942/43 and

to reconstruct the hierarchical order of command within the SS at the

time;

Whereas, subsequently, various witnesses had been heard, in Germany and

abroad, as to the question whether and to what extent the applicant had

received orders from the Officer in Charge of the Security Police, Dr.

G..

Whereas it had become clear from the evidence collected that it had not

been possible for the applicant to have received any orders from Dr.

G.; whereas, when confronted with this evidence, the applicant had been

obliged himself to admit that he had not been telling the truth;

whereas he attempted to justify himself by explaining that he had

wished to protect the wife and family of the former Commanding Officer

of the Security Police, Dr. S.; whereas on two further occasions the

applicant made statements to the investigation authority which turned

out to be untrue; whereas the Commission finds that, regardless of

whether or not an accused person is, in principle, entitled to make

misleading statements to the prosecuting authority  with regard to the

charges laid against him, he must bear the consequences as to any

resultant prolongation of the investigations;

Whereas, furthermore, the Commission has noted that, in the course of

the proceedings against the applicant, it had been necessary to examine

some 500 witnesses, 90 of whom had to be re-examined following the

counter-allegations made by the applicant when the evidence of these

witnesses was put to him; that it had been necessary to hear a

considerable number of these witnesses abroad, particularly in Israel

and the United States of America; that, in order to expedite the

examination of the witnesses living abroad, photocopies of the files

had been prepared and that the Public Prosecutor dealing with the case

had himself been in the United States of America to assist in the

examination of witnesses there; whereas the Commission appreciates

that, in view of the special interest that these trials involving Nazi

crimes create not only in the Federal Republic of Germany but in other

countries as well, a very thorough investigation had been necessary in

order to ensure that the persons guilty of such crimes are brought to

justice;

Whereas, in the Commission's opinion, the prosecuting authorities, in

investigating the case against the applicant, were faced with such

exceptional difficulties as do not arise in normal criminal cases;

Whereas, in the circumstances, the Commission cannot follow the view

expressed by the applicant that the proceedings would have been

expedited if more than one Public Prosecutor had been assigned to his

case or if a judicial investigation had been made at an earlier date,

since any such action could not as such have facilitated the

investigations;

Whereas the Commission has further noted that the preliminary judicial

investigation which had been opened on 21st April, 1965, had been

closed, the applicant having refused to make any statement in the

absence of his counsel who had been prevented from attending; that

subsequent to the service of the indictment on his counsel on 15th

November, 1965, the applicant requested extensions of time by several

months to answer the charges laid against him; that the hearing of the

applicant by the investigating judge during the new preliminary

judicial investigation had to be postponed on the ground that the

applicant's defence counsel had previous engagements; that for mainly

the same reason, the trial against the applicant did not start until

almost a year after he had been committed for trial; whereas,

therefore, the delays between 1965 and 1968 had been to a large extent

necessary in order to ensure that the applicant's defence was properly

carried out;

Whereas, for these reasons, the Commission finds that the investigating

and judicial authorities have conducted the case in such a manner as

not to prolong the detention of the applicant beyond limits which were

reasonable, having regard not only to the particularly grave nature of

the charges against him but also to the fact that part of the delay

which actually occurred in bringing him to trial must be ascribed to

other factors than their conduct of the case;

Whereas, in this respect, the present application is to be

distinguished from Application No. 2604/65, Heinz JENTZSCH v. the

Federal Republic of Germany (Collection of Decisions, Vol. 25, page 15)

which was declared admissible by the Commission on 19th December, 1967;

whereas in that case the Commission was also concerned with the

application of a person who was accused of Nazi crimes and detained on

remand during a period of more than six years; whereas, however, the

investigation proceedings against JENTZSCH had been opened in 1961 by

the office of the Public Prosecutor in Hamburg, had then been

transferred to the Public Prosecutor's Office in Berlin in 1962 an

finally in 1963 to the Public Prosecutor's Office in Cologne, which had

closed the investigation 1965 and preferred the charges against the

applicant at his trial in 1967; whereas JENTZSCH considered that the

transfer of his case from Hamburg to Berlin, and subsequently from

Berlin to Cologne, had caused a considerable delay in the

investigations which could have been avoided; whereas the respondent

Government contended that the transfers had been unavoidable on legal

grounds, and, in any event, had not caused any substantial delay in the

proceedings; whereas, on the basis of these facts and of the particular

circumstances of the case, the Commission found that application could

be regarded as manifestly ill-founded within the meaning of Article 27,

paragraph (2) (Art. 27-2), of the Convention and that its determination

should depend upon an examination of merits;

Whereas, as has been stated above, the facts of the present case

clearly warrant the conclusion that the judicial authorities have not

caused any unreasonable delay in bringing the applicant to trial;

Whereas, therefore, the Commission finds that the case does not

disclose any appearance of a violation of the rights and freedoms set

forth in the Convention and in particular, of Articles  5, paragraph

(3), and 6, paragraph (2) (Art. 5-3, 6-2);

Whereas it follows that the application is manifestly ill-founded and

must be rejected in accordance with Article 27, paragraph (2)

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

Now therefore the Commission declares this application INADMISSIBLE