Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20695/92

by Josef NELLES

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 1995, 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

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

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 2 July 1992 by

Josef NELLES against Germany and registered on 4 September 1992 under

file No. 20695/92;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 31 March 1993 to communicate the

application;

- the observations submitted by the respondent Government on

26 August 1993 and the observations in reply submitted by the

applicant on 11 January 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen, born in 1956 and was detained

on remand at the prison in Düsseldorf when he lodged the application.

He is represented by Mrs. S. Oster, a lawyer practising in Essen.

The facts as submitted by the parties are as follows:

The applicant was arrested on 13 June 1991 and remanded in prison

on suspicion of murder and other crimes.

On 17 December 1991 the Düsseldorf Court of Appeal

(Oberlandesgericht) ordered the detention on remand to continue. The

Court stated that in view of the nature of the crime it was not

necessary that there existed danger of absconding or of collusion. It

further considered that the length of the detention was not

disproportionate but justified in view of the difficulties and

complexity of the investigations.

On 7 February 1992 the Federal Constitutional Court

(Bundesverfassungsgericht) quashed the Court of Appeal's decision and

sent the case back for reconsideration on the ground that the reasons

stated in the appellate court's decision were insufficient.

On 25 February 1992 the Court of Appeal again decided that the

applicant's detention on remand should continue. This time the Court

pointed out that the confession of a co-accused T. had been

corroborated by other witnesses such as P. and the applicant's wife

U.N. The Court furthermore pointed out that in view of the severe

sentence which the applicant had to expect and also in view of the

possible revocation of a conditional release granted in another matter,

there was a danger that the applicant would abscond. Finally the Court

stated that the purpose of detention on remand could not be realised

by less stringent measures. Difficult detective investigations were

necessary as the applicant denied his participation contrary to the

statements of the co-accused T. In these circumstances the public

interest in solving the crime and prosecuting the perpetrators

prevailed over the applicant's right to liberty.

A constitutional complaint against this decision was rejected by

a panel of three judges of the Federal Constitutional Court on

11 May 1992 as being clearly ill-founded. It is stated in the

Constitutional Court's decision that the reasons given in the Court of

Appeal's order were unobjectionable.

On 11 May 1992 an indictment dated 17 April 1992 was submitted

to the competent Düsseldorf Regional Court (Große Strafkammer des

Landgerichts). The applicant and his half brother R.T. were accused

of having robbed and murdered Mrs. F. in her house. His friend L. was

accused of having aided and abetted.

On 9 June 1992 the Court of Appeal in Düsseldorf again ordered

that the applicant's detention on remand should continue. This time

the Court stated that there was no violation of the right to a speedy

trial as the investigations were complex and difficult necessitating

the hearing of a great number of witnesses and other criminal

examinations. Therefore the indictment could not have been terminated

before 17 April 1992. In addition the Court referred to the reasons

already stated in the order of 25 February 1992.

On 29 June 1993 R.T.'s defence counsel requested that his client

be examined by a psychiatric expert.

On 17 July 1992 the trial court ordered that both the applicant

and R.T. be examined by an expert.

On 23 July 1992 the Federal Constitutional Court again rejected

another constitutional complaint lodged by the applicant. This time

the Constitutional Court underlined however that the Court of Appeal,

when examining the necessity of the applicant's detention on remand,

would have to take into account that the weight of the applicant's

request for release increased with the length of his detention on

remand. Therefore it was not very satisfactory that the Court of

Appeal limited itself to saying that the indictment had been submitted

on 17 April 1992 without carefully examining what happened thereafter

in the proceedings against the applicant. The Court of Appeal was

consequently instructed to examine at the next occasion whether any

delays had occurred in the proceedings and whether such delays had

subsequently been corrected by particular diligence.

On 23 July 1992 applicant's counsel requested that the indictment

against his client not be admitted. At the same time he challenged the

judges of the trial court. The observations of the challenged judges

were communicated to the counsel on 7 August 1992 and a reply was

submitted on 14 August 1992. On 19 August 1992 the motion of challenge

was rejected. An appeal against this decision was dismissed on

17 September 1992.

Having been admonished by the trial court, the expert wrote on

18 October 1992 that his work had been delayed because he had been

awaiting a report from another expert who had examined R.T. in 1990 in

connection with other criminal proceedings. He expected however to

submit his report at the latest at the end of November 1992.

On 10 December 1992 Mrs. S.O. advised the trial court that she

was the applicant's defence counsel and requested to be appointed ex

officio counsel. On 15 December 1992 she was given the opportunity to

inspect the files and on 18 January 1993 she was appointed as official

defence counsel.

On 15 January 1993 the expert, being admonished by the trial

court, informed the court that for private reasons his work had been

delayed. He further stated that he had visited the applicant in prison

on 18 September 1992 but the applicant had refused to co-operate. He

could however only prepare an expert opinion if the applicant replied

to his questions. On the other hand he had prepared the expert opinion

on the other accused, R.T.

On 20 January 1993 the court of appeal again ordered that the

applicant's detention on remand continue. The court considered that

the length of the proceedings and the applicant's detention was not

excessive taking into account that an expert opinion was still

outstanding. While the expert opinion concerning the co-accused R.T.

was expected to be available within ten days the applicant had,

contrary to his own allegations, refused to undergo a medical

examination when he was visited in prison by the expert in October

1992. The presiding judge had furthermore stated that the trial was

scheduled to begin in March 1993.

On 19 February 1993 the medical expert opinion on R.T. was

submitted to the trial court.

On 8 March 1993 the indictment was admitted and the trial fixed

to take place on 13, 14, 18 and 21 May 1993. The trial court also

ordered that the applicant's detention on remand continue.

On 14 May 1993 the trial court set aside the applicant's warrant

of arrest as the co-accused had admitted having robbed and murdered

Mrs. F. alone.

On 21 May 1993 the Düsseldorf Regional Court convicted R.T. and

imposed on him a life sentence. The applicant and L. were acquitted

and granted compensation for their detention on remand. According to

the findings of the court R.T., a person with an extensive criminal

record, had absconded from prison and found refuge in the applicant's

apartment. The applicant also had a criminal record, in particular

several cases of theft but the court did not exclude that R.T. had

exerted pressure on the applicant in order to be offered shelter by

him. While during the investigations R.T. had alleged to have robbed

Mrs. F. together with the applicant and that the applicant had

committed the murder, he admitted at the trial that he had acted alone

and had incriminated the applicant as an act of revenge.

COMPLAINTS

The applicant is of the opinion that his detention on remand

exceeded a reasonable time. He invokes violations of Articles 5 para.

3 and 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 July 1992 and registered on

28 September 1992.

On 31 March 1993 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48 para. 2

(b) of the Rules of Procedure.

The Government's written observations were submitted on

26 August 1993. The applicant replied on 11 January 1994.

On 17 May 1994 the Commission granted the applicant legal aid.

THE LAW

The applicant complains of the length of his detention on remand

which began on 13 June 1991 and ended on 14 May 1993, i.e. one year and

eleven months. He considers in particular that the trial court should

have taken measures to oblige the psychiatric expert to submit his

request on time or should have charged another expert. The applicant

invokes Article 5 para. 3 (Art. 5-3) and Article 6 para. 1 (Art. 6-1)

of the Convention.

The Commission considers that this complaint falls to be examined

under Article 5 para. 3 (Art. 5-3) only.

The respondent Government point out that the applicant will

receive compensation for his detention on remand and question whether

in these circumstances he can still be considered to be a victim of the

alleged violation. In any event the Government consider that the

length of the detention was justified in the circumstances of the case

and given the complexity of the matter.

a) The Commission first observes that payment under domestic law of

compensation for detention on remand which turns out to have been

unjustified does not constitute reparation for an alleged violation of

Article 5 para. 3 (Art. 5-3) on account of an excessive length of such

detention (cf. Eur. Court H.R., Tomasi judgment of 27 August 1992,

Series A no. 241, p. 34, paras. 79-81).

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

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

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

To this end they must examine all the facts arguing for and 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 applications for 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 decide whether or not there has been a

violation of Article 5 para. 3 (Art. 5-3) of the Convention (cf. Eur.

Court H.R., Neumeister judgment of 27 June 1968, Series A No. 8, p.37,

paras. 4-5).

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 (cf. Eur. Court H.R., Stögmuller judgment

of 10 November 1969, Series A No. 9, p. 40, para. 4).

The grounds invoked by the national judicial authorities may be

sufficient to justify keeping a person in detention pending trial but

with time they will diminish in pertinence when balanced against the

right to liberty guaranteed by Article 5 (Art. 5) of the Convention to

the person provisionally detained, and even where such grounds are

"relevant" and "sufficient" the Convention organs must ascertain

whether the competent national authorities displayed diligence in the

conduct of the proceedings (cf. Eur. Court of H.R., Letellier judgment

of 26 June 1991, Series A No. 207, p. 18, para. 35)

c) As to the reasons given by the domestic authorities the

Commission considers that they justified the continued detention in

view of the initial evidence against the applicant which strengthened

the suspicion against him. Also, the fact that the applicant had to

expect a severe sentence and in addition risked the revocation of a

conditional release granted in another matter could reasonably lead the

authorities to assume that there was danger of absconding. The

Commission further notes that the Court also considered the possible

use of less stringent measures. In these circumstances the Commission

is of the opinion that the present matter is distinguishable from the

Yagci and Sargin case which related to a comparable period of detention

on remand on account of however charges of a different nature (Eur.

Court H.R., judgment of 8 June 1995, Series A no. 319).

d) As to the handling of the case by the authorities the Commission

notes that the applicant himself has not alleged any particular

circumstances tending to show that the authorities delayed the

investigations. In fact the matter has been of a complex nature given

that difficult detective investigations were necessary according to the

uncontested finding of the Court of Appeal. It is true that the

psychiatric expert exceeded the time-limits within which he was

supposed to submit his report. However, in view of the applicant's

refusal to co-operate and the necessity to obtain a prior expert

report relating to the co-accused R.T., the delays in the preparation

of the expert opinion are sufficiently explained. The Commission

cannot therefore in the circumstances find that the authorities did not

actively pursue their investigations.

e) Assessing the period in question generally the Commission finds

in view of the foregoing that the period of detention on remand does

not appear to be unreasonable so as to amount to a possible violation

of Article 5 para. 3 (Art. 5-3) of the Convention. The Commission also

notes in this context that the trial court ordered the applicant's

release and also granted him compensation immediately after R.T.'s

confession that he committed the murder alone.

It follows that in these circumstances the application has to be

rejected as being manifestly ill-founded in accordance with Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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NELLES v. GERMANY

NELLES v. GERMANY

LEXI