THE FACTS

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

dispute between them may be summarised as follows:

1. The Applicant is a German citizen, born in 1917 and at present

detained in prison at Hagen in Westphalia. His Application concerns the

length of his detention pending trial.

The Applicant was arrested on 5 May 1961, and has been detained since

that date. The indictment against him dated 1 December 1965, contains

several charges of murder committed in 1941/42 while he was serving as

a member of the SS in the concentration camp of Gusen, a subsidiary of

the Mauthausen camp. His trial opened before the Regional Court

(Landgericht) of Hagen on 28 August 1967, and is expected to last until

April 1968.

II. The development of the criminal proceedings against the Applicant

has been as follows:

1. In 1961 an investigation was opened against him and several other

persons by the Office of the Public Prosecutor (Staatsanwaltschaft) of

Hamburg. This investigation concerned crimes allegedly committed at the

concentration camp of Gusen.

2. The Applicant lived in Berlin at the time and, on 4 May 1961, the

District Court (Amtsgericht) of Berlin Tiergarten issued a warrant for

his arrest. He was arrested on 5 May 1961, and subsequently detained

in the remand prison of Berlin-Moabit.

3. On 19 December 1961, the Hamburg Public Prosecutor's Office came to

the conclusion that, in the Gusen case, the evidence against the

suspected person who was residing in Hamburg was not sufficient and it

decided to discontinue the criminal proceedings against that person.

Under the German Code of Criminal Procedure (Strafprozessordnung), the

Hamburg Office thereby ceased to be competent for the investigation

against the other suspected persons, including the Applicant, as none

of them was resident within the jurisdiction of the Regional Court of

Hamburg.

4. On 9 January 1962, the Office of the Public Prosecutor of Hamburg

transmitted the case-file to the Office of the Public Prosecutor of

Berlin, requesting it to continue the investigation on the ground that

the Applicant was domiciled and resident in Berlin. However, this was

refused by the Berlin authorities.

5. Consideration was then given to having the case dealt with by the

Public Prosecutor's Office of Flensburg, where another suspected person

had his domicile.

6. Finally, the Public Prosecutor's Office of Hamburg sought a decision

of the Federal Attorney-General (Generalbundesanwalt)

under Article 143, paragraph (3), of the Judicature Act

(Gerichtsverfassungsgesetz) which states as follows:

"Where the officials of Public Prosecutor's Offices of several LÄnder

cannot agree on which of them has to persecute, the decision shall be

taken by that official of the Public Prosecutor's Office who is their

common superior, otherwise by the Federal Attorney-General."

("Können die Beamten der Staatsanwaltschaft verschiedener Länder sich

nicht darüber einigen, wer von ihnen die Verfolgung zu übernehmen hat,

so entscheidet der ihnen gemeinsam vorgesetzte Beamte der

Staatsanwaltschaft, sonst der Generalbundesanwalt.")

On 23 May 1962, the Federal Attorney-General decided that the Public

Prosecutor's Office of Berlin should continue the case.

7. An appeal by the Applicant against his detention (Haftbeschwerde)

was dismissed by the Regional Court of Berlin on 4 July 1962.

8. From a survey made by the Public Prosecutor's Office of Berlin on

1 August 1962, it appeared that, out of 154 persons originally under

suspicion, 76 had already been eliminated as a result of the

investigation carried out by the Public Prosecutor's Office of Hamburg,

it having been established either that they were dead or that the

evidence available would not be sufficient. With regard to other

suspected persons it was found that they were domiciled and resident

abroad.

9. During the course of its investigation the Berlin Public

Prosecutor's Office separated from the remaining issues in the case the

main charge against the Applicant and some other persons concerning the

so-called "death baths" in the concentration camp of Gusen.

10. A new appeal by the Applicant against his continued detention was

rejected by the Regional Court of Berlin on 13 December 1962. His

further appeal (weitere Beschwerde) from this decision was dismissed

by the Court of Appeal (Kammergericht) of Berlin on 27 February 1963.

11. In May 1963, it was found necessary by the Prosecution to try the

Applicant together with other persons who were suspected of having been

his accomplices in the "death baths" but who were not residing in

Berlin. New transfer negotiations took place between the Public

Prosecutor's Offices of Berlin, Flensburg and Cologne and, on 2 August

1963, the Federal Attorney-General decided that the Cologne office

should continue the proceedings. The 2 officials who had been in charge

of the case in the Berlin Public Prosecutor's Office were seconded to

the Cologne Public Prosecutor's Office for 2 months in order to

initiate the Prosecutor now dealing with it in the Cologne Office.

12. In the Public Prosecutor's Office of Cologne, the proceedings

against the Applicant and his alleged accomplices were conducted by the

"Central Office in the Land of North Rhine-Westphalia for Criminal

Proceedings Concerning National Socialist Crimes Involving Numerous

Victims in Concentration Camps" (Zentralstelle im Land

Nordrhein-Westfalen für die Bearbeitung von nationsozialistischen

Massenverbrechen in Konzentrationslagern). This Office had been set up

under the Directing Chief Public Prosecutor (Leitender

Oberstaatsanwalt) at the Regional Court of Cologne in accordance with

Article 145, paragraph (1), of the Judicature Act which states as

follows:

"The chief officials of Public Prosecutor's Offices at Courts of Appeal

and Regional Courts may themselves discharge the duties of the Public

Prosecutor's Office at all courts within their district or delegate

such duties to another official as the official immediately

responsible."

("Die ersten Beamten der Staatsanwaltschaft bei den Oberlandesgerichten

und den Landgerichten sind befugt, bei allen Gerichten ihres Bezirks

die Amtsverrichtungen der Staatsanwaltschaft selbst zu übernehmen oder

mit ihrer Wahrnehmung einen anderen als den zunächst zuständigen

Beamten zu beauftragen.")

This provision is interpreted as giving corresponding powers to Land

Ministers of Justice.

In his Order (Runderlass) of 21 October 1961, concerning the Central

Office in Cologne, the Minister of Justice of North Rhine-Westphalia

defined the object of the Office as follows: "In the interest of more

rapid investigation and energetic prosecution of crimes involving

numerous victims in National Socialist concentration camps, centralised

handling of the relevant cases in North Rhine-Westphalia by the Public

Prosecutor's Office is called for. On 1 November 1961 a central office

to deal with criminal cases in the Land of North Rhine-Westphalia

relating to such crimes will therefore be set up under the Directing

Chief Public Prosecutor at the Regional Court of Cologne."

13. In April 1965, the Central Office of Cologne terminated its

investigation of the "death baths" at Gusen concentration camp, 2

suspected accomplices of the Applicant having been arrested in November

1964.

14. On 10 May 1965, the Applicant was heard by a judge in pursuance of

Article 178 of the Code of Criminal Procedure.

15. In a petition of 13 May 1965, requesting his conditional release,

the Applicant referred to a decision given by the Regional Court of

Cologne on 9 June 1964. In this decision the Court, relying on Article

5, paragraph (3), of the Convention, had ordered the release pending

trial of 2 persons who, for almost 6 years, had been detained on remand

on suspicion of having murdered prisoners, or having aided and abetted

their murder, at the concentration camp of Mauthausen. The Court had

held that detention pending trial "must be brought to an end if its

continuance would break the prisoner's spirit, seriously undermine his

will to defend himself and thus cause appreciable harm to his human

dignity."

The Applicant's above petition was refused by the District Court of

Berlin-Tiergarten on 2 June 1965.

16. On 24 June 1965, the investigation was formally closed by the

Central Office of Cologne in accordance with Article 169 a of the Code

of Criminal Procedure.

17. On 23 July 1965, the Court of Appeal of Berlin ordered the

Applicant's continued detention.

18. At his request, the Applicant was finally heard on 12 October 1965

by the Public Prosecutor of the Cologne Central Office under Article

169 b of the Code of Criminal Procedure.

19. The indictment, a document of some 230 pages, was completed by the

Central Office on 1 December and lodged with the Regional Court of

Hagen in Westphalia on 10 December 1965. In the indictment the

Applicant and 2 further accused were faced with several charges of

murder. It was alleged that, between September 1941 and spring 1942,

they had participated in the "death baths" at Gusen concentration camp

where a great number of people had died after having been forced to

remain under ice-cold shower-baths. The prosecution invoked as

evidence, inter alia, the statements of 68 witnesses in Germany and 43

witnesses in other countries, mainly Poland.

20. On 26 January 1966, the Court of Appeal (Oberlandesgericht) of Hamm

(Westphalia) decided that the Applicant's detention should continue.

21. At the Applicant's request, a preliminary judicial investigation

(gerichtliche Voruntersuchung) was ordered by the Third Great Criminal

Chamber of the Regional Court of Hagen on 23 February and opened by the

investigating judge of the Court on 4 March 1966.

22. A new order for the Applicant's continued detention was made by the

Court of Appeal of Hamm on 5 May 1966.

23. On 27 July 1966, the Regional Court of Hagen rejected the

Applicant's request to separate the criminal proceedings against him

from those against his co-accused. It also ordered his transfer from

Berlin to Hagen.

24. On 12 August 1966, the Court of Appeal of Hamm decided that the

Applicant's detention should continue.

25. On 1 September the Court of Appeal dismissed the Applicant's appeal

(Beschwerde) from the Regional Court's decision of 27 July 1966

(mentioned in paragraph 22 above) and, on 7 September, the Applicant

was transferred in a charter plane from Berlin to Hagen.

26. On 14 March 1967, the Federal Constitutional Court

(Bundesverfassungsgericht) dismissed the Applicant's constitutional

appeal (Verfassungsbeschwerde) from the Court of Appeal's decision of

12 August 1966 (mentioned in paragraph 23 above). Noting that the

Applicant had been detained since 5 May 1961, the Federal

Constitutional Court stated that a detention of this length could be

considered as admissible only in very exceptional circumstances. It

must be an extremely complex and difficult investigation of

particularly serious offences; moreover, it must be shown that the

authorities had done all they could in order to complete the

investigation as soon as possible and to obtain a judgement on the

charges against the detained person.

The Court found that these conditions were satisfied in the Applicant's

case. The length of his detention was not out of all proportion to the

gravity of the alleged offences since he was charged with a number of

crimes which were punishable with life imprisonment. The investigation

had been extremely difficult because the offenses concerned were Nazi

crimes committed more than 20 years ago; most of the witnesses were

either unreliable as being suspected persons themselves or living

abroad and therefore difficult to contact. The alleged offences

involved numerous victims and it was necessary to clarify the whole

historical complex (Gesamtgeschehen) in order to make a proper

assessment of the individuals who had taken part in these actions, the

degree of their participation and their guilt. The Court also found

that there had been no avoidable delay in the investigations and it

concluded that the decision of the Court of Appeal that the Applicant

should remain in detention did not violate the Basic Law (Grundgesetz).

27. On 21 March 1967, the Criminal Chamber of the Regional Court of

Hagen, noting that the preliminary judicial investigation (mentioned

in paragraph 21 above) had been concluded, committed the Applicant for

trial. It also ordered his continued detention.

28. The trial of the Applicant and the 2 co-accused opened before the

Regional Court of Hagen on 28 August 1967. It is expected to last until

April 1968.

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

I. As to Article 5, paragraph (3), of the Convention (right to trial

within a reasonable time or to release pending trial).

1. The Applicant submitted that, according to the Commission's constant

jurisprudence, the term "reasonable time" in Article 5, paragraph (3),

of the Convention must be determined in the light of the concrete

circumstances of each case. In the Wemhoff case the Commission had in

its report adopted certain criteria for the evaluation of such

circumstances and, in this connection, special consideration should be

given to the actual length of the detention. The nature of the alleged

offence and the penalty to be expected in the event of conviction could

also be taken into account but, when applying this criterion, it was

necessary to observe the presumption of innocence as guaranteed by

Article 6, paragraph (2) of the Convention. Special regard must be had

to the fate of the individual involved. The reasonableness of a period

of detention on remand could not be determined primarily on the basis

of the requirements of the criminal investigation. Detention pending

trial constituted a "special sacrifice" ("Sonderopfer") which an

individual, whether guilty or not, had to make for the maintenance of

an effective administration of justice. The length of such detention

must not exceed a measure which could reasonably be imposed even on an

innocent person.

The Applicant affirmed his innocence. He stated that, since 1945, he

had been living under his real name and been duly registered with the

police. He had not attempted to flee or to conceal his past. His arrest

in 1961 had been premature as was shown by the fact that his co-accused

had not been arrested until 1964. During his detention he had been

anxious to facilitate the work of the investigating authorities and he

had shown that certain evidence against him was perjured.

The Applicant further considered that the transfer of his case from

Hamburg to Berlin, and subsequently from Berlin to North

Rhine-Westphalia, had caused a delay of 2 years in the investigation.

He pointed out that each new Public Prosecutor had to acquaint himself

with the particular conditions in the concentration camps and that this

required extensive studies. He submitted that a considerable delay in

the proceedings could have been avoided if, in 1962, his case had been

transferred directly from Hamburg to North Rhine-Westphalia or if, once

transferred to Berlin, it had remained there.

The Applicant also stated that his very long detention had disrupted

his business life, endangered his family ties and severely affected his

health. In particular, the uncertainty as to his fate constituted a

serious mental strain. The Applicant concluded that his detention

pending trial for over 6 years clearly violated Article 5, paragraph

(3), of the Convention.

2. The Respondent Government stated that the Applicant's arret became

necessary in 1961 after allegations concerning the "death baths" at

Gusen concentration camp had been made against him in public. He might

thus have learned that an investigation concerning these grave charges

was pending against him and that the Public Prosecutor knew his place

of residence. There was, consequently, a danger that he might escape.

It was not necessary, however, at that time to arrest the other accused

since in their case there was no danger of flight. They were not

informed of any investigation being made again at them and it was,

therefore, possible to postpone their arrest until the time when they

had to be heard on the matter personally.

In its decision of 14 March 1967, the Federal Constitutional Court,

having regard to the very exceptional circumstances of the present

case, had found that the length of the Applicant's detention on remand

did not violate the Basic Law. The Government also observed that the

proceedings in the Wemhoff case, which had been mentioned by counsel

for the Applicant, were still pending before the European Court of

Human Rights.

The complexity of the present case and the difficulty of the criminal

investigation were further illustrated by the fact that the death

register of Gusen concentration camp contained the names of over 30,000

persons; that about 150 witnesses, selected from a total of 2,000, had

to be thoroughly examined; and that the scene of the crimes to be

investigated was outside the Federal Republic of Germany.

The Government also considered that the transfer of the Applicant's

case from Hamburg to Berlin, and subsequently from Berlin to North

Rhine-Westphalia, was unavoidable and that, in any case, it had not

caused any substantial delay in the proceedings. Under the federal

organisation of German justice, the lower instances fell within the

jurisdiction of the Länder. It was not possible for cases like the

present one to set up a federal investigating and prosecuting office

with competence for the whole Republic. The territorial competence of

the Cologne Central Office was limited to the Land North

Rhine-Westphalia. It was true that, at the time of the transfer of the

Applicant's case from Hamburg to Berlin, the suspected person residing

in North Rhine-Westphalia, who finally provided the ground for the

jurisdiction of the Cologne Office, was already known to the Public

Prosecutor's Office. However, the investigation of that person's part

in the alleged crimes had not then reached the point where he could

have been charged with any certainty. Thus at that time the

jurisdiction of the Cologne Office could not be established.

After the transfer of the proceedings from Berlin to Cologne in 1963,

the Central Office gave preference to the case and one Public

Prosecutor dealt with it exclusively. The Cologne Office had been set

up for the particular purpose of assuring a speedy investigation of

national socialist crimes committed on concentration camps and it had

extensive special knowledge at its disposal. Furthermore, the 2

officials who had been in charge of the case in the Berlin Public

Prosecutor's Office were seconded to the Cologne Office for a period

of 2 months. Thus the investigation was carried out efficiently and

without interruption. Pointing out that the investigation was

terminated in June 1965, the Government further submitted that the

prolongation of the proceedings from that date until the opening of the

trial on 28 August 1967 was mainly the result of motions introduced by

the Applicant, in particular his request for a preliminary judicial

investigation.

Finally, the Government referred to Resolution 1158 (XLI) of the United

Nations Economic and Social Council on the punishment of war criminals

and of persons who committed crimes against humanity. In this

Resolution, which was adopted on 5 August 1966, States were urged to

continue their efforts to ensure the arrest and punishment of such

criminals and Governments were invited to inform the UN Secretary

General of the measures taken. The Respondent Government also quoted

complaints of the Eastern bloc that the Federal Republic of Germany had

failed in its duty to prosecute Nazi crimes.

The Government concluded that it would welcome a statement by the

Commission as to how Courts and Public Prosecutors in Germany should

solve the special problems of arrest and detention arising in the

prosecution of such crimes.

II. As to Article 3 of the Convention

1. The Applicant submitted that the whole situation complained of

amounted to a violation of Article 3 of the Convention which states

that no one shall be subjected to torture or to inhuman or degrading

treatment or punishment. He did not, however, make any specific

allegation in this respect.

2. The Respondent Government submitted that the length of the

Applicant's detention could not be considered by itself to constitute

a violation of Article 3. It further pointed out that the Applicant

himself did not complain that, during his detention, he had in any way

been subjected to inhuman or degrading treatment.

III. As to Article 6, paragraph (2), of the Convention

1. The Applicant alleged that the whole situation complained of also

amounted to a violation of Article 6, paragraph (2), of the Convention

which provided that everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law. He considered

that this principle must be taken into account in any decision as to

whether a period of detention pending trial is reasonable.

2. The Respondent Government submitted that the Applicant had in no way

been treated as if he had already been proved guilty. In particular,

the duration of his detention could not be regarded as an "advance" on

his possible sentence.

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 this Article (Art. 5-1-c)

"shall be entitled to trial within a reasonable time or to release

pending trial";

Whereas it is not disputed that the Applicant was arrested on 5 May

1961, on suspicion of murder, that he has been detained since that

date, his various applications for release from custody having been

rejected by the competent German courts; and that his trial finally

opened before the Regional Court of Hagen on 28 August 1967;

Whereas the Applicant alleged that his detention pending trial for over

6 years constituted a clear violation of Article 5, paragraph (3)

(Art. 5-3), of the Convention;

Whereas the Respondent Government submits that the investigation in the

Applicant's case concerned particularly serious offences; that it was

extremely complex and difficult; and that it was carried out with the

greatest possible expedition;

Whereas, according to the constant jurisprudence of the Commission, the

question whether a period of detention pending trial is "reasonable"

within the meaning of Article 5, paragraph (3) (Art. 5-3), cannot be

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

particular circumstances of each case; whereas, in this respect, the

Commission refers to Appendix II of its Report in the Wemhoff case;

Whereas the Respondent Government considers that special problems of

arrest and detention arise in the prosecution of Nazi crimes; whereas

the Commission has previously examined a case where crimes against

humanity were involved; whereas, in that case, a person charged with

having participated in mass executions of Jews in 1942 - 43 was

detained pending trial for over 19 months; and whereas, in its decision

on the admissibility of that application, the Commission stated, inter

alia, (Application No 920/60 - X v. Federal Republic of Germany,

Collection of Decisions, Volume 8, pages 46 - 49 [48 - 49]);

"Whereas, in the present case, the crimes with which the Applicant is

charged were committed 18 years ago and the circumstances of their

perpetration render a conscientious and proper investigation on the

part of the German police exceedingly complicated; whereas such

investigation must necessarily extend over a longer period than might

be considered in an ordinary case to be reasonable within the meaning

of Article 5 (Art. 5) of the Convention;

Whereas it is further to be taken into account that the proceedings

involve other persons than the Applicant as they concern, in general,

the responsibility under present German law of a number of individuals

who had actively participated in the extermination programme initiated

under the Nazi régime against persons of Jewish origin and carried out

by the SS, of which the Applicant was admittedly a member;

Whereas it was required to prepare under unusual and special

circumstances a trial on a large scale in order properly to determine

not only the question of the Applicant's guilt, but also the extent to

which the guilt of others might be taken into account in estimating the

degree of the Applicant's responsibility;

Whereas the crimes imputed to the Applicant formed merely a part of the

large-scale crimes committed by the SS in the German-controlled

territories in Eastern Europe in 1941 - 45; whereas, consequently, the

participation of the Applicant in the mass exterminations at Minsk in

1942 - 43 cannot be properly assessed in isolation but must be seen in

its full perspective, which can only be obtained by a trial involving

all those who participated in the crimes concerned; and whereas, in the

light of all the above exceptional circumstances, the Commission does

not feel called upon to hold that the delay in bringing the Applicant

to trial, although prolonged must be unreasonable;"

Whereas it is true that some of these considerations appear applicable

to the present case; whereas, however, it must not be overlooked that

the period of detention in the above Application was under 20 months

while the present Applicant has been detained pending trial for over

6 years;

Whereas, further, in several previous cases the Commission has admitted

complaints under Article 5, paragraph (3) (Art. 5-3) , of the

Convention where, at the time of its decision on the admissibility the

periods of detention ranged from 19 months to 3 years and were thus

substantially shorter than in the present case (of the cases of

Matznetter, Stögmüller, Neumeister, Wemhoff and Gericke);

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

requiring the Commission to declare inadmissible any application from

an individual which it considers to be "manifestly ill-founded", does

not permit the Commission to reject a complaint whose lack of

foundation cannot be so described (see Application No 2294/64 - Gericke

v. Federal Republic of Germany, Yearbook of the European Convention on

Human Rights, Volume 7, pages 348, 354); whereas in the present case

the Commission has carried out a preliminary examination of the

information and arguments submitted by the Parties with regard to the

Applicant's complaint under Article 5, paragraph (3) (Art. 5-3), of the

Convention concerning the length of his detention pending trial;

whereas the Commission finds that this complaint is of such complexity

that its determination should depend upon an examination of its merits;

whereas it follows that it cannot be regarded as manifestly ill-founded

within the meaning of Article 27, paragraph (2) (Art. 27-2); whereas,

therefore, it cannot be declared inadmissible on that ground; and

whereas no other ground for declaring the Application inadmissible has

been found;

For these reasons and without any way prejudging the merits of the

case, the Commission declares the Application ADMISSIBLE under Article

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