Lexploria

SUR LA RECEVABILITÉ

Application No. 23673/94

by Hans-Joachim BRAUCKS

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 1994, the following members being present:

MM. A. WEITZEL, President

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 19 August 1993 by

Hans-Joachim BRAUCKS against Germany and registered on 14 March 1994

under file No. 23673/94;

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 applicant is a German citizen, born in 1964 and presently

detained on remand in prison at Osnabrück.

It follows from his statements and the documents submitted that

on 1 February 1993 the applicant was arrested in Rotenburg. A warrant

of arrest was issued on the following day by the District Court

(Amtsgericht) Rotenburg Wümme. The applicant has been detained on

remand since then on suspicion of having committed six aggravated

thefts.

On 23 February 1993 the case was transferred to the District

Court Osnabrück which considered that the detention on remand should

continue.

On 17 June 1993 the Osnabrück Regional Court (Landgericht)

rejected the applicant's complaint against the warrant of arrest.

According to the grounds given in the decision there was strong

suspicion against the applicant not only because he was incriminated

by a co-accused, W., but also because a car, rented by the applicant

had at the relevant time been seen near the place of the offence and

burglary tools were later found in that car. Similar tools and loot

were likewise found in an apartment rented by the applicant.

The court considered that there was danger of absconding in view

of the heavy sentence the applicant had to expect. In addition it is

pointed out that he had during his interrogations before the police in

March 1993 confessed to some 50 thefts. His present allegation that

his confessions had been obtained by unlawful interrogation methods was

contradicted by the records of these interrogations which the applicant

had signed and which state that the applicant had made the confessions

after consultation with, and on the advice of, his defence counsel.

This had been confirmed by the counsel.

In respect of danger of absconding the court also stated that the

applicant did not have any family links and also no place of work and

fixed abode. An apartment rented by him was admittedly used as a sham

address and deposit for loot but the rent had not been paid. Before

his arrest he had spent the nights in hotel rooms or in the car in

which he and his co-accused had been travelling around.

On 20 July 1993 the Public Prosecutor at the District Court

Osnabrück requested to extend the warrant of arrest to a further 87

criminal offences, mostly thefts.

On 6 August 1993 the Oldenburg Court of Appeal

(Oberlandesgericht) ordered that detention on remand should continue.

The court states in the decision that the applicant only admitted to

having committed certain of the offences in question. There was

nevertheless strong suspicion with regard to all the charges as his

co-accused, W., had given evidence against the applicant. Furthermore

the court considered that there was a danger of absconding in view of

the heavy sentence which the applicant had to face and also in view of

his previous convictions for similar offences. His living conditions

did not disclose any circumstances likely to be an obstacle to his

absconding.

Moreover the court considered that the investigations were

complex and difficult. An expert opinion was still outstanding. In

all these circumstances and in view of the serious charges at issue the

length of the detention on remand was not disproportionate.

On 21 September 1993 the Osnabrück Regional Court decided that

detention on remand should continue. The court pointed out that in the

meantime an indictment had been submitted by the Public Prosecution.

The applicant had partly admitted the charges made against him and as

to the remainder he was strongly suspected in view of the statements

of the co-accused, W. Furthermore the court considered that there was

a danger of absconding there being no personal circumstances likely to

prevent the applicant from doing so.

On 6 October 1993 the applicant's constitutional appeal was

rejected by a group of three judges of the Federal Constitutional Court

(Bundesverfassungsgericht).

On 26 October 1993, the Regional Court admitted the indictment

and opened the main proceedings. Furthermore it decided to keep the

applicant in detention on remand.

On request the applicant informed the Commission's Secretariat

on 18 August 1994 that on 22 December 1993 he had been convicted and

sentenced to three years and nine months imprisonment. An appeal on

points of law (Revision) is apparently still pending.

COMPLAINTS

The applicant considers that he is still in detention on remand

and that it exceeds a reasonable time and therefore violates Article

5 para. 3 of the Convention

THE LAW

The applicant complains about the length of his detention on

remand and invokes Article 5 para. 3 (Art. 5-3) of the Convention which

provides insofar as relevant:

"Everyone arrested or detained in accordance with the provisions

of para. 1.c of this Article .... shall be entitled to trial

within a reasonable time or to release pending trial."

The Commission notes that the applicant was arrested on

1 February 1993 and was convicted in first instance on 22 December

1993. As he was imposed a three years and nine months prison sentence

he is now serving the sentence and detained in accordance with Article

5 para. 1 (a) (Art. 5-1-a) of the Convention (cf. Eur. Court H.R.,

Letellier judgment of 26 June 1991, series A No. 207, p. 17 para. 34).

Consequently the period under consideration lasted from 1 February 1993

until 22 December 1993, i.e. ten months and 21 days.

The Commission recalls that it falls in the first place to the

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

pretrial detention of an accused person does not exceed a reasonable

time and 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 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

(See, the most recent authority, Eur. Court H.R., W. v. Switzerland,

judgment of 26 January 1993, Series A No 254, p. 32, p. 15 para. 30).

In the present case the applicant was arrested on suspicion of

having committed several aggravated thefts. On 6 August 1993 the

Oldenburg Court of Appeal ordered that the detention on remand should

continue on the ground that the applicant had admitted having committed

certain of the offences in question while as to the remainder he was

implicated by statements made by a co-accused. The court considered

that in view of the heavy sentence which the applicant had to expect

and in view of his living conditions there was a danger of absconding.

Furthermore the court considered that the principle of proportionality

was not violated in view of the complexity and difficulty of the case

and the serious charges at issue.

On 21 September 1993 the Osnabrück Regional Court decided that

detention on remand should continue and pointed out that in the

meantime an indictment had been submitted.

The indictment was admitted on 26 October 1993 while a

constitutional complaint on the length of the detention on remand was

rejected by the Federal Constitutional Court on 11 August 1993.

The Commission cannot find that the domestic courts based their

decisions on the applicant's continued detention on arbitrary reasons

or disregarded vital arguments submitted by the applicant. It can

furthermore not be found that the conduct of the proceedings to date

was objectionable in that the judicial authorities could be considered

to have caused substantial delays.

The applicant, for his part, has, neither in his submissions to

the domestic courts, nor in his present application, stated any facts

or developed any arguments likely to contradict the findings and the

reasoning of the domestic courts. The Commission therefore finds that

the length of the detention at issue is satisfactorily explained and

justified by the unrefuted reasons stated in the various decisions

given on the issue by the domestic courts. It follows that there is

no appearance of a violation of Article 5 para. 3 (Art. 5-3) of the

Convention and the application therefore has to be rejected as being

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

(Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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BRAUCKS v. GERMANY

BRAUCKS v. GERMANY

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