Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18999/91

by J.I. P.

against Germany

The European Commission of Human Rights (First Chamber) sitting in

private on 12 January 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

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 9 October 1991 by

J.I. P. against Germany and registered on 25 October 1991 under file No.

18999/91;

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

of Procedure of the Commission;

Having regard to :

- the Commission's decision of 2 April 1992 to communicate the

application;

- the observations submitted by the respondent Government, after an

extension of the time-limit, on 15 July 1992 and the observations

in reply submitted by the applicant on 27 July 1992 as well as his

further submissions of 9 August 1993;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the parties, may be

summarised as follows.

The applicant, born in 1955, is a Dutch national of Bulgarian

origin. He is resident in The Hague, Netherlands. Before the Commission

he is represented by Mr. H.-O. Sieg, a lawyer practising in Frankfurt.

On 29 October 1987 the Darmstadt District Court (Amtsgericht), in

the course of criminal proceedings against another accused W., issued a

warrant of arrest against the applicant. The District Court considered

that there was a reasonable suspicion that in 1985 the applicant had

dealt in heroin of a considerable quantity, in that, on two occasions,

he had arranged deals for the other accused W. in the Netherlands; the

heroin was later imported into the Federal Republic of Germany. The

District Court, in this respect, relied on the statements of the other

accused W. It further assumed a danger of absconding on the ground that

the applicant lived in the Netherlands.

The applicant was arrested on 26 January 1988, and informed about

the arrest warrant by the Geldern District Court on 27 January 1988. The

applicant stated that, at the relevant time, he had been on holidays in

Greece. The applicant remained in detention on remand. In the following

proceedings he was represented by defence counsel.

On 14 April 1988 the Darmstadt Public Prosecutor's Office

(Staatsanwaltschaft) preferred the indictment (Anklageerhebung) against

the applicant on the charge of having dealt in drugs of a considerable

quantity.

On 11 May 1988, in the course of appeal proceedings concerning the

applicant's continued detention on remand, the Darmstadt Regional Court

(Landgericht) quashed the arrest warrant. The Regional Court found that,

having regard to the applicant's alleged alibi, there was no longer a

strong suspicion that he had committed the offences in question. The

applicant left for the Netherlands.

On 26 July 1988 the Darmstadt Regional Court, following further

investigations concerning the applicant's alibi, quashed its decision of

11 May 1988 and reinstated the arrest warrant. The arrest warrant was

amended on 18 August 1988.

On 6 September 1988 the proceedings against the applicant were

provisionally discontinued in view of his absence.

On 13 January 1989 the Darmstadt Regional Court, following a

reminder of the Public Prosecutor's Office, committed the applicant for

trial.

On 27 March 1990 the applicant was arrested in Belgium and

extradited to the Federal Republic of Germany on 8 May 1990, and taken

into detention on remand.

On 10 July 1990 the Darmstadt Regional Court ordered the applicant's

further detention on remand. On 23 August 1990 the Frankfurt Court of

Appeal (Oberlandesgericht) ordered the applicant's continued detention.

On 6 November 1990 the Darmstadt Regional Court, upon a hearing,

ordered the applicant's continued detention on remand. The Court, having

regard to the statements of W., who had meanwhile been convicted, and

W.'s son, found a reasonable suspicion that the applicant had been

involved in the drug deals in question. His attempt to prove his alibi

had failed. In this respect, the Regional Court referred in detail to

the result of inquiries at a German travel agency and the statements of

witnesses named by the applicant.

On 9 November 1990 the Regional Court again committed the applicant

for trial.

On 8 January 1991 the Frankfurt Court of Appeal ordered the

applicant's continued detention on remand.

Furthermore, in January 1991 the Presiding Judge at the Darmstadt

Regional Court inquired in how far two foreign witnesses were prepared

to appear at the trial. On 5 March 1991 the Regional Court decided to

hear a Greek witness on the question of the applicant's alibi in

proceedings on letters rogatory.

On 2 April 1991 the Regional Court, and on 13 May 1991 the Court of

Appeal, prolonged the applicant's detention on remand.

The letters rogatory concerning the hearing of the Greek witness

were translated into Greek on 2 April and sent on 23 May 1991.

On 18 July 1991 the Federal Constitutional Court (Bundesver-

fassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) concerning the Court of Appeal's

decision of 13 May 1991 on the ground that it offered no prospect of

success. The Constitutional Court noted the Court of Appeal's finding

that the proceedings had been furthered and that delays had not been

caused by grave mistakes of the judicial authorities, but had been due

to the illness of the Rapporteur at the Regional Court.

On 20 September 1991 the Frankfurt Court of Appeal ordered again the

applicant's continued detention on remand.

On 20 December 1991 the Frankfurt Court of Appeal quashed the arrest

warrant of the Darmstadt Regional Court of 18 August 1988. The Court of

Appeal considered that the interference with the applicant's right to

liberty was no longer proportionate. It noted in particular that the

charges against the applicant related to facts which had occurred a long

time ago. Furthermore, the applicant, having his family in the

Netherlands, suffered particular hardship due to his detention in the

Federal Republic of Germany. Moreover, the date of his trial was

uncertain, and it could not be assumed that, if he were convicted, his

sentence would exceed the period of his detention on remand, which would

have to be taken into account. The applicant was released on the same

day.

On 18 September 1992, in the proceedings under letters rogatory, the

witness concerned was questioned in Greece.

COMPLAINTS

The applicant complains about the length of the criminal proceedings

and his detention on remand. He invokes Article 6 para. 1 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 October 1991 and registered on

25 October 1991.

On 2 April 1992 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

On 15 July 1992 the Government submitted their observations after

an extension of the time-limit. The observations in reply by the

applicant were submitted on 27 July 1992. The applicant filed further

submissions on 9 August 1993.

THE LAW

The applicant complains about the length of his detention on remand

and also about the length of the criminal proceedings against him.

The Government submit that the application is inadmissible for non-

exhaustion of domestic remedies on the ground that the applicant only

lodged a constitutional complaint with the Federal Constitutional Court

as regards the third of altogether four decisions prolonging his

detention on remand, namely the Court of Appeal's decision of

13 May 1991. He should have again lodged a constitutional complaint

about the subsequent decision taken by the Court of Appeal on

20 September 1991.

The Commission notes that the applicant unsuccessfully complained

with the Federal Constitutional Court about the third decision of the

Frankfurt Court of Appeal to prolong his detention on remand, which had

at that stage already lasted altogether more than thirteen months. The

Commission finds that the applicant was not required to bring the

question of the reasonableness of the length of his detention on remand

again before the Federal Constitutional Court (cf. no. 10965/84, Dec.

6.7.88, D.R. 56 p. 62; No. 11703/85, Dec. 9.12.87, D.R. 54 p. 116). The

application may not, therefore, be rejected for non-exhaustion of

domestic remedies within the meaning of Article 26 (Art. 26) of the

Convention.

Article 6 para. 1 (Art. 6-1), so far as relevant, provides that "in

the determination ... of any criminal charge against him, everyone is

entitled to a ... hearing within a reasonable time".

The applicant's complaint about the length of his detention on

remand falls within the scope of Article 5 para. 3 (Art. 5-3), which

provides that "everyone arrested or detained in accordance with the

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

brought promptly before a judge or other officer authorised by law to

exercise judicial power and shall be entitled to trial within a

reasonable time or to release pending trial".

The Government, referring to the case-law of the Convention organs,

argue that one problem of the case was to verify the applicant's alibi

which involved the hearing of a witness abroad, that some delay in autumn

1990 was due to the applicant's request to postpone the date for hearing

to review his detention on remand. They submit that some periods of

inactivity on the part of the judicial authorities was excusable or could

have had good reasons, however, they accept that the Court of Appeal's

decision of 20 September 1991, confirming the proportionality of the

applicant's detention on remand at that time, was questionable. As

regards the applicant's complaint about the length of the criminal

proceedings, the Government also submit that experience showed that, in

proceedings under letters rogatory with Greek authorities, it was not

uncommon for more than one year to elapse until their termination.

The Commission finds that the applicant's complaints raise difficult

issues of fact and of law which are of such complexity that their

determination should depend upon a full examination of the merits. These

complaints cannot, therefore, be declared manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No

other ground for declaring them inadmissible has been established.

For these reasons, the Commission, unanimously

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the First Chamber President of the First Chamber

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

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J.I.P. v. GERMANY

J.I.P. v. GERMANY

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