THE FACTS

Whereas the facts as presented by the Parties may be summarised as

follows:

The Applicants are German citizens, living in Berlin. The Applicant

Helga Gericke was born in 1924; her husband, Wilhelm Gericke, in 1916.

Submitting a power-of-attorney signed by her husband, Helga Gericke has

introduced the present Application both on her own behalf and as

representative of her husband, Wilhelm Gericke.

The Application concerns the detention pending trial of Wilhelm

Gericke.

On 9th November 1961, the Applicant Wilhelm Gericke, who had been a

signing official (Prokurist) of the August Thyssen Bank in Berlin, was

arrested on suspicion of having committed abuse of trust (Untreue)

under Article 266 of the Penal Code (Strafgesetzbuch) by having

knowingly misused the authority conferred on him to dispose of the

property of a third party or to bind a third party and failed in the

duty imposed on him and derived from his position of trust to protect

the property interests of a third party, thereby causing damage to the

party concerned. He was alleged to have co-operated with Karl-Heinz

Wemhoff, arrested on the same day, whose Application No. 2122/64 was

declared admissible by the Commission on 2nd July 1964 (1).

The warrant of arrest (Haftbefehl) was originally issued on the grounds

that the Applicant, Wilhelm Gericke, might flee the country

(Fluchtverdacht) or interfere in the investigation of his case by

suppressing evidence of influencing witnesses (Verdunkelungsgefahr).

Later, the warrant was confirmed on the sole ground of suspicion of

flight.

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(1) Cf. volume 14, page 29.

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On 28th June 1963, the District Court (Amtsgericht) of

Berlin-Tiergarten decided that the Applicant Wilhelm Gericke should be

released pending trial on condition that he surrendered his identity

papers to the Office of the Public Prosecutor (Staatsanwaltschaft) of

Berlin and that he registered twice a day with the police.

On appeal (Beschwerde) by the Office of the Public Prosecutor, this

decision was, however, reversed by the Regional Court (Landgericht) of

Berlin on 19th July 1963, and the further appeal of the second

Applicant was dismissed by the Court of Appeal (Kammergericht) of

Berlin on 5th August 1963.

On 23rd April 1964 the indictment was lodged with the Regional Court,

and on 17th July 1964 the second Applicant, together with Wemhoff and

several other defendants, was committed for trial (Eröffnung des

Hauptverfahrens), a new order for his continued detention having been

made by the Regional Court on 7th July.

On 16th October 1964, the Regional Court ruled that the detention of

the second Applicant should continue. His appeal from this decision was

dismissed by the Court of Appeal on 13th November 1964, the trial

(Hauptverhandlung) having opened before the Regional Court on 9th

November 1964.

Pointing out that Wilhelm Gericke has been detained on remand for a

period of three years, both Applicants allege a violation of Article

5, paragraph (3), of the Convention.

Proceedings before the Commission

A group of three members of the Commission examined the Application on

15th September 1964, and the President of the Commission decided on

17th September 1964:

1. in accordance with Rule 38 of the Rules of Procedure, to give

priority to the Application;

2. in accordance with Rule 45, paragraph (2) of the Rules of Procedure,

to give notice of the Application to the Government of the Federal

Republic of Germany and to invite the Government to submit to the

Commission within a time-limit of six weeks its observations in writing

on the admissibility of the Application.

Under cover of a letter dated 28th October 1964, the Respondent

Government submitted a report of the Attorney-General

(Generalstaatsanwalt) at the Regional Court of Berlin of 8th October

1964, together with copies of court decisions, and of opinions rendered

by the prosecution concerning the detention of the second Applicant.

The Government stated that the exceptional ramifications of the case

and the complexity of the facts which had to be investigated might be

gauged from these documents together with the written accusation

(Anklageschrift) of some 850 pages and the six-volume auditor's opinion

already submitted in connection with the Wemhoff Application No.

2122/64; these circumstances explained the long duration of the

detention on remand in this particular case as compared with other

criminal proceedings.

In the report of the Attorney-General, it was stated that the

prosecution and the Court did everything in their power to reduce to

a minimum the time between the arrest of the second Applicant and his

trial. It was also submitted that a real risk of his escape made his

continued detention necessary during that period.

On 30th October 1964, the Government's observations of 28th October

were sent to the Applicant, Helga Gericke, who was invited to submit

her reply on or before 23rd November 1964.

Under cover of a letter dated 18th November 1964, the first Applicant

submitted the following reply on her own behalf and as representative

of her husband:

1. As a result of the prolonged detention of the Applicant Wilhelm

Gericke, the Applicant, Helga Gericke, and their two children have been

deprived of support for over three years. The education of the

children, too, is in danger as the Applicant, Helga Gericke, working

to earn their living, must very often leave the children alone.

2. In the name of her husband, the Applicant Helga Gericke protested

against the statement of the prosecution and the courts that, because

he might be sentenced to a long term of imprisonment and would never

be able to make good the damage inflicted by him on the August Thyssen

Bank, the Applicant, Wilhelm Gericke, was suspected of intending to

escape. That he had no such intention was shown by the fact that, until

his arrest, he had remained in Berlin where were his wife, children and

his mother. He had also fully co-operated with the prosecution and

offered bail. In the opinion of the Applicants, there is a danger that

an excessive sentence may be imposed in order to justify the duration

of detention pending trial.

THE LAW

I. As to the complaint under Article 5, paragraph (3) (Art. 5-3),

of the Convention, made on behalf of the Applicant, Wilhelm Gericke;

Whereas Article 5, paragraph (3) (Art. 5-3), provides 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, Wilhelm Gericke, was arrested

on 9th November 1961 on suspicion of having committed abuse of trust;

that he has been detained since that date, his various applications for

release from custody having been rejected by the competent Courts; and

that his trial was finally opened before the Regional Court on 9th

November 1964;

Whereas the Applicants allege that the detention pending trial of the

Applicant, Wilhelm Gericke, during a period of three years, namely,

from his arrest on 9th November 1961 until the opening of his trial on

9th November 1964, constitutes a violation of Article 5, paragraph (3)

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

Whereas the Respondent Government submits that, in the present case,

the duration of the detention on remand is justified in view of the

complexity of the facts which were to be investigated; that the

investigation was carried out with the greatest possible expedition;

and that the continued detention of the Applicant was necessary in

order to prevent his escape;

Whereas the Commission was called upon to examine a similar issue in

Application No. 343/57 (Nielsen v. Denmark) in which the Applicant was

detained for 29 months pending trial; whereas, although it rejected

this part of the Application for non-exhaustion of domestic remedies

in accordance with Articles 26 and 27, paragraph (3) (Art. 27-3),

of the Convention, the Commission, "having regard to the very long

period of time which elapsed before the Applicant was brought to trial

in the present case and to the general circumstances of the case",

considered that the Applicant's complaint of an alleged violation of

his right to trial within a reasonable time, under Article 5, paragraph

(3) (Art. 5-3), was not "manifestly ill-founded" within the meaning of

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

the European Convention on Human Rights, Volume 2, pages 412 [452,

454]);

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 Applications Numbers 1474/62 and

1769/63 - Collection of Decisions of the Commission, Volume 11, pages

50 and 59); whereas in the present case the Commission has carried out

a preliminary examination of the information and arguments submitted

by the Parties regarding the Applicants' complaint that the Applicant,

Wilhelm Gericke, was not brought to trial within a reasonable time nor

released from detention pending trial, within the meaning of Article

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

(see Application Number 2122/64, Collection of Decisions, Volume 14,

page 29);

II. As regards the remainder of the Application, namely, in so far as

it concerns the complaints made independently by the Applicant Helga

Gericke

Whereas the Applicant, Helga Gericke, complains that, as a result of

prolonged detention of her husband, the Applicant Wilhelm Gericke, she

and their two children have been deprived of their main support for

over three years; that the education of their children is in danger as

she is working to earn their living and must very often leave them

alone; whereas, in respect of these complaints, the Commission finds

that an examination of the file in its present state does not give it

the information required for deciding whether or not this part of the

Application is admissible; whereas, therefore, the Commission decides

to adjourn, pending the examination of the merits of the complaint

dealt with under I above, its examination of this remaining part of the

Application;

Now, therefore, the Commission:

1. Declares admissible, without in any way prejudging its merits, the

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

made on behalf of the Applicant, Wilhelm Gericke;

2. Adjourns its examination of the remainder of the Application.