Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28397/95

by Robert LÖHR

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 28 February 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 November 1994

by Robert LÖHR against Germany and registered on 31 August 1995 under

file No. 28397/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant, born in 1948, is a German national and resident

in Cologne. When lodging his application, he was detained in a prison

in Koblenz.

A. Particular circumstances of the case

On 19 May 1994 the applicant was arrested on the suspicion of

having committed theft on several counts, together with three

accomplices. He was taken into detention on remand on the basis of an

arrest warrant issued by the Koblenz District Court (Amtsgericht).

In the criminal proceedings against him, the applicant was

assisted by defence counsel.

On 9 November 1994 the Koblenz Court of Appeal (Oberlandes-

gericht), as confirmed by its further decision of 28 November 1994,

ordered the applicant's continued detention on remand.

On 7 February 1995 the Koblenz Public Prosecutor's Office

(Staatsanwaltschaft) preferred the indictment against the applicant

finding that, having regard to the result of the investigations, there

was a strong suspicion that he had, together with other members of a

gang, committed theft on numerous counts.

On 14 February 1995 the Presiding Judge at the competent 4th

Criminal Chamber at the Koblenz Regional Court (Landgericht) ordered

that the bill of indictment be served upon the applicant and his

counsel.

On 7 March 1995 the Koblenz Court of Appeal ordered the

applicant's further detention on remand.

In its decision, the Court of Appeal, referring to its earlier

decisions of 9 and 28 November 1994, considered that there was a strong

suspicion against the applicant of having committed the criminal

offences in question, and also that the reasons justifying his

detention within the meaning of S. 112 para. 2 of the Code of Criminal

Procedure (Strafprozeßordnung), namely the risk of his absconding,

persisted. As regards the suspicion against the applicant, the Court

of Appeal referred in particular to the results of the investigations

as stated in the bill of indictment of 7 February 1995.

As to the conduct of the proceedings, the Court of Appeal noted

that the indictment had been served upon the applicant and his defence

counsel on 14 February 1995. The Presiding Judge of the competent

Criminal Chamber had indicated that the trial would open in the

beginning of May 1995. Such timing could not be objected to, taking

into account the time-limits for the defence and the time necessary to

prepare the trial. The Court of Appeal further considered that the

complexity of the investigations had not allowed for terminating the

bill of indictment at an earlier stage. In this respect, the Court

noted that the applicant denied the charges against him and that

considerable circumstantial evidence had to be investigated. The final

report regarding the police investigations was dated 16 January 1995.

Investigation reports to be submitted by the Rhineland Palatinate

Office of Criminal Investigations (Landeskriminalamt) were still

outstanding.

The Court of Appeal, balancing the seriousness of the charges

against the applicant and the severity of the sentence which he risked

incurring against the length of the applicant's detention on remand,

considered that there was no indication of a lack of proportionality.

On 19 May 1995 the 3rd Criminal Chamber of the Koblenz Regional

Court committed the applicant for trial. It further ordered the

applicant's continued detention on remand. Moreover, the applicant was

informed that 7 August 1995 was fixed as date for the start of the

trial against him, which was to be continued on five dates in

August 1995 and on further dates in September 1995, as long as

necessary.

On 9 June 1995 the Court of Appeal again ordered the applicant's

continued detention on remand.

The Court of Appeal, referring to its decision of 7 March 1995,

considered in particular that the risk of the applicant's absconding

persisted as he had no personal links and no professional prospects

and, in case of his conviction, was liable to be sentenced to a

substantial cumulative period of imprisonment taking the numerous

offences concerned and his criminal record into account.

Furthermore, the Court of Appeal found that important reasons had

so far hindered a judgment. The Criminal Chamber first competent in

respect of the applicant's case had been overburdened with work. On

1 May 1995 the President's Office at the Regional Court had, therefore,

transferred the case to the 3rd Criminal Chamber which had meanwhile

committed the applicant for trial and fixed the dates for the opening

and continuation of the trial. No reasons to doubt the proportionality

of the applicant's continued detention on remand existed.

On 29 June 1995 the Federal Constitutional Court

(Bundesverfassungsgericht) refused to admit the applicant's

constitutional complaint (Verfassungsbeschwerde) against the Court of

Appeal's decision of 9 June 1995.

On 4 October 1995 the 3rd Criminal Chamber at the Koblenz

Regional Court convicted the applicant of grave theft committed as a

member of a gang (schwerer Bandendiebstahl) and sentenced him to five

years' imprisonment. The applicant was acquitted of some further

charges.

The Regional Court, having heard the applicant, several witnesses

as well as technical experts of the Office for Criminal Investigations,

found that the applicant, together with accomplices, had burgled

several post offices as from February 1994. In particular he had

burgled a post office near Cochem in the night from 17 to 18 May 1994

and stolen a safe. As regards further charges of burglaries in April

and May 1994, the Regional Court regarded the evidence as insufficient.

The written version of the judgment was finalised on

22 November 1995. According to the applicant, appeal proceedings are

pending.

B. Relevant domestic law

SS. 112 to 131 of the Code of Criminal Procedure (Strafprozeß-

ordnung) concern the arrest and detention of a person on reasonable

suspicion of having committed a criminal offence.

S. 112 prescribes the prerequisites of detention on remand, in

particular a strong suspicion that the person concerned committed a

criminal offence and that there was a reason justifying detention, as

for example, a risk of the person's absconding.

According to SS. 121 and 122, detention on remand may only exceed

a period of six months, without any judgment imposing a sentence of

imprisonment or other measure requiring the accused's detention having

been passed, if the complexity of the case or investigations or another

important reason justified such detention.

COMPLAINTS

1. The applicant complains that his detention on remand violated the

principle of the presumption of innocence within the meaning of

Article 6 para. 2 of the Convention. He submits that he was detained

on remand for the mere reason of his previous criminal record.

2. The applicant complains under Article 5 para. 3 of the Convention

about the length of his detention on remand.

3. The applicant complains under Article 6 para. 1 of the Convention

about the length of the criminal proceedings against him.

4. Finally, the applicant complains about his conviction and the

alleged unfairness of the proceedings concerned. In this respect, he

invokes Article 6 para. 2 of the Convention.

THE LAW

1. The Commission, assuming compliance with the conditions of

Article 26 (Art. 26)of the Convention, has considered the applicant's

complaint about his detention on remand under Article 5 para. 1 (c)

(Art. 5-1-c) of the Convention.

The Commission, having regard to the applicant's submission that

he was detained on remand for the mere reason of his previous criminal

record, notes that the German courts duly applied the relevant

provisions of the Code of Criminal Procedure. The Commission, having

taken into consideration the reasons advanced in these court decisions

on the applicant's detention on remand, both as to the strong suspicion

against him as well as the danger of his absconding, finds no

indication that the deprivation of the applicant's liberty had not been

"in accordance with a procedure prescribed by law" and that his arrest

and detention had not been "lawful" and effected for the purposes of

Article 5 para. 1 (c) (Art. 5-1-c).

In these circumstances, there is no appearance of a violation of

Article 5 para. 1 (Art. 5-1) of the Convention. The applicant's

submissions further disclose no appearance of a violation of the

presumption of innocence.

Consequently, this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2).

2. The applicant complains under Article 5 para. 3 (Art. 5-3) of the

Convention about the length of his detention on remand.

Article 5 para. 3 (Art. 5-3), so far as relevant, provides as

follows:

"Everyone arrested or detained in accordance with the provisions

of paragraph 1 (c) of this Article (Art. 5-1-c) ... shall be

entitled to trial within a reasonable time or to release pending

trial."

The Commission notes that the applicant was detained on remand

between 19 May 1994 and 4 October 1995, i.e. approximately one year,

four months and two weeks.

The Commission recalls that it is in the first place for the

national authorities to ensure that, in a given case, pre-trial

detention of an accused person does not exceed a reasonable time. To

this end, they must examine all the facts arguing for or against the

existence of a genuine requirement of public interest justifying (with

due regard to the principle of the presumption of innocence) a

departure from the rule of respect for individual liberty and set them

out in their decisions on the question of release. It is essentially

on the basis of the reasons given in these decisions and of the true

facts mentioned by the applicant in his appeals that the Convention

organs are called upon to review the reasonableness of the length of

detention (Eur. Court H.R., W. v. Switzerland judgment of

26 January 1993, Series A no. 254, p. 15, para. 30).

The persistence of reasonable suspicion that the person arrested

has committed an offence is a condition sine qua non for the validity

of the continued detention, but, after a certain lapse of time, it no

longer suffices; the Convention organs must then establish whether the

other grounds cited by the judicial authorities continue to justify the

deprivation of liberty, and whether the domestic authorities displayed

special diligence in the conduct of the proceedings (W. v. Switzerland

judgment, loc. cit.).

The Commission notes that the Koblenz Court of Appeal, referring

to the investigations against the applicant and in particular the bill

of indictment, found that there was a strong suspicion that the

applicant had committed theft as member of a gang. The Court's finding

as to the risk of his absconding was based on the absence of any

personal links and of professional prospects as well as the severity

of the sentence which he risked.

As regards the conduct of the proceedings by the domestic

authorities, the Commission notes that the preliminary investigations

started in mid-may 1994 and the Public Prosecutor's Office preferred

the indictment in the beginning of February 1995. The applicant was

committed for trial in May 1995 and the trial started in August 1995.

His conviction was dated 4 October 1995.

The Koblenz Court of Appeal, in its respective decisions,

carefully examined the progress of the proceedings against the

applicant and considered the question of proportionality of the

applicant's continued detention on remand.

The Commission notes that the investigations were of some

complexity, as they concerned charges of burglary on several counts and

the applicant claimed to be innocent. The circumstantial evidence had

to be investigated, necessitating the taking of expert evidence. In

the course of the preliminary investigations as well as in the court

proceedings, no particular delays can be attributed to the German

authorities. In particular, when the 4th Criminal Chamber of the

Koblenz Regional Court appeared to be overburdened with work, the

applicant's case was, without any considerable delay, transferred to

the 3rd Criminal Chamber, which speedily fixed the date for the trial.

The applicant failed to show any failure by the police or the judicial

authorities to act with the necessary diligence.

In these circumstances, the Commission finds that the period of

the applicant's detention on remand did not yet exceed a reasonable

time within the meaning of Article 5 para. 3 (Art. 5-3) of the

Convention.

It follows that this part of the application is likewise

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2).

3. The applicant further complains under Article 6 para. 1

(Art. 6-1) of the Convention about the length of the criminal

proceedings against him.

Article 6 para. 1 (Art. 6-1) provides, inter alia, that in the

determination of any criminal charge against him, everyone is entitled

to a hearing within a reasonable time.

The Commission considers that the period to be examined under

Article 6 para. 1 (Art. 6-1) started on 19 May 1994. According to the

applicant, proceedings concerning his appeal against his conviction on

4 October 1995 are pending. The proceedings have so far lasted more

than one year and nine months.

The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular

circumstances of the case and having regard to the complexity of the

case, the conduct of the applicant and the conduct of the authorities

dealing with the case. In the present case, the circumstances call for

an overall assessment (Eur. Court H.R., Ficara judgment of

19 February 1991, Series A no. 196-A, p. 9, para. 17).

The Commission, referring to its above findings as to the

complexity of the case and the conduct of the proceedings by the German

authorities, considers that there is no indication that the proceedings

against the applicant were not duly furthered. Accordingly, there is

no indication that the proceedings against the applicant have exceeded

a reasonable time within the meaning of Article 6 para. 1 (Art. 6-1).

It follows that the applicant's complaint about the length of the

criminal proceedings against him is manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2).

4. The applicant also complains about his conviction and apparently

the alleged unfairness of the proceedings concerned. In this respect,

he relies on Article 6 para. 2 (Art. 6-2) of the Convention.

With regard to the judicial decision of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77, pp. 81, 88 and Eur.

Court H.R., Van de Hurk judgment of 19 April 1994, Series A no. 288,

p. 20, para. 61; Klaas judgment of 22 September 1993, Series A no. 269,

p. 17, para. 29).

As regards any complaints under Article 6 (Art. 6) that the

criminal proceedings, in particular the trial before the Koblenz

Regional Court, were not fair, the Commission recalls that the question

of whether a trial conforms to the standards laid down in Article 6

(Art. 6) must be decided on the basis of an evaluation of the trial in

its entirety (cf. No. 11058/84, Dec. 13.5.86, D.R. 47, pp. 230 with

further references). It is true that it cannot be excluded that a

specific factor may be so decisive as to enable the fairness of the

trial to be assessed at an earlier stage in the proceedings (cf. Nos

8603/79, 8722/79, 8723/79 and 8729/79 joined, Dec. 18.12.80, D.R. 22,

p. 216). However, the Commission finds that the applicant failed to

show any such specific factors. Accordingly, the applicant's

complaints in this respect are premature.

It follows that this part of the application is likewise

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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LÖHR v. GERMANY

LÖHR v. GERMANY

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