AS TO THE ADMISSIBILITY OF

                      Application No. 19791/92

                      by B.H.

                      against Germany

      The European Commission of Human Rights (First Chamber) sitting

in private on 13 October 1993, 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

           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 30 January 1992

by B.H. against Germany and registered on 1 April 1992 under file No.

19791/92;

      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

parties, may be summarised as follows.

      The applicant, born in 1962, is a German national.  When lodging

his application he was detained at a psychiatric hospital at Wiesloch.

Since February 1993 the applicant has been represented in the

proceedings before the Commission by Mr. Sieh, a lawyer practising in

Wiesloch.

      On 2 April 1988 the applicant was arrested on the suspicion of

murder or manslaughter, namely of having killed a young woman.  On

3 April 1988 the Freiburg District Court (Amtsgericht) ordered his

detention on remand.

      Furthermore, on 27 April 1988 separate investigation proceedings

were instituted against the applicant on the suspicion of having raped

another woman.

      On 7 October 1988 the Karlsruhe Court of Appeal (Oberlandes-

gericht) ordered the applicant's continued detention on remand.  The

Court of Appeal stated that the proceedings had been duly furthered,

and that the investigations, due to their complexity, had not yet been

completed.

      In December 1988 the Freiburg Public Prosecutor's Office (Staats-

anwaltschaft) received a report on the state of investigations by the

Freiburg Criminal Investigation Department (Kriminalpolizei), according

to which a forensic expert opinion as to the circumstances of the

offence was to be prepared in order to provide a basis for psychiatric

expert opinions on the applicant's criminal responsibility.

Furthermore, the applicant's defence counsel was given access to the

file, and he was asked for information whether the applicant intended

to make any statements on the charge against him.  Moreover, the

investigation files were copied.

      On 9 January 1989 the Karlsruhe Court of Appeal ordered the

applicant's further detention on remand.

      On 26 January 1989 the Freiburg Public Prosecutor's Office

instructed the forensic expert Dr. R. to prepare the above-mentioned

opinion on elements of the offence in question.  The copied set of the

files was transmitted to him.  In February 1989 the expert announced

that his opinion was to be ready by the end of March 1989.

      On 9 March 1989 the Freiburg Public Prosecutor's Office discussed

with counsel the question of choosing the psychiatric and psychological

experts to be appointed in the applicant's case.  There was agreement

that the experts could only be chosen after receipt of the forensic

expert opinion.

      On 6 April 1989 the Karlsruhe Court of Appeal again ordered the

applicant's continued detention on remand.  The Court of Appeal noted

that the forensic expert opinion had not yet been received, and that

further experts could only be appointed thereafter.  Having regard to

the seriousness of the charge against the applicant, the length of his

detention on remand was not disproportionate.

      On 10 April 1989 the forensic expert informed the Public

Prosecutor's Office that the opinion was complex and necessitated

further experiments, and could only be terminated by the end of April

1989.  The applicant's defence counsel was informed accordingly.

      On 18 May 1989, following an inquiry, the Public Prosecutor's

Office received the forensic expert opinion, a copy of which was sent

to the applicant's defence counsel.

      On 4 July 1989 the Prosecutor's Office discussed the question of

choosing psychiatric and psychological experts with defence counsel.

He informed the prosecution that the applicant continued not to make

any statements on the charge against him.

      On 14 July 1989 the Karlsruhe Court of Appeal, having regard to

the further steps in the investigations, ordered the applicant's

continued detention on remand.

      On 25 July 1989 the applicant's defence counsel made proposals

as to the appointment of the psychiatric expert and of the

psychological expert.

      In August 1989 the Public Prosecutor's Office instructed the

psychiatric expert Prof. S., one of the experts proposed by the

applicant, to prepare an opinion as to the applicant's criminal

responsibility.  Prof. S. was requested to inform the Prosecutor's

Office in time, should he consider a supplementary opinion by a

psychological expert necessary.  Copies of the files were submitted to

him.  Defence counsel was informed accordingly.

      In September 1989 the Freiburg District Court, upon the request

of Prof. S., ordered the applicant's transfer to a prison in Hamburg

in order to arrange for an observation by Prof. S. and Dr. M., one of

the psychological experts proposed by the applicant.

      On 13 October 1989 the Karlsruhe Court of Appeal again ordered

the continuation of the applicant's detention on remand.  The Court of

Appeal found that, having regard to the seriousness of the charge

against the applicant and the sentence he expected in case of his

conviction, the length of his detention on remand was not

disproportionate.  The proceedings had not yet been completed due to

the complexity of the investigations.

      In November 1989 the prosecution authorities were informed by

Prof. S. that the applicant's psychiatric and psychological examination

would continue until mid-December 1989, and that the written version

of his expert opinion would be ready by the end of January 1990.  On

1 December 1989 the Freiburg Public Prosecutor's Office requested

Prof. S. to inform them, possibly by phone, about the termination of

the applicant's examination and its result, and to pass this request

on to Dr. M., the second expert.  On 6 December 1989 Prof. S. informed

the Prosecutor's Office that the examination was terminated, and that

both expert opinions could be expected for January 1990.  The applicant

was transferred back to the Freiburg Prison.

      At the end of December 1990 review proceedings were again pending

before the Karlsruhe Court of Appeal.  On 5 January 1990 Prof. S., upon

inquiry of one of the judges dealing with the applicant's case, stated

that it could be excluded that the applicant was not criminally

responsible.  The applicant's defence counsel was informed accordingly.

      On 12 January 1990 the Court of Appeal decided that the

applicant's detention on remand should continue.  The Court of Appeal

stated in particular that there was a reasonable suspicion that the

applicant had committed the crime in question.  Having regard to his

attempt to abscond shortly after his arrest and taking into account the

seriousness of the charges against him, there was a danger of his

absconding.  The Court of Appeal also found that his continued

detention on remand was proportionate in view of the extensive

investigations involving expert opinions concerning matters of forensic

medicine and expert opinions as regards the applicant's criminal

responsibility.  The Court of Appeal stated in particular that there

had been an avoidable delay in the investigations in that the Public

Prosecutor's Office, after the information given by Prof. S. that he

had completed the examination of the applicant, had failed to ask for

a provisional opinion whether the applicant's criminal responsibility

was excluded.  On the basis of such provisional information, the

indictment could have been prepared to a large extent.  However, as

this delay only amounted to one month it could still be accepted.

      On 7 February 1990 the Freiburg Public Prosecutor's Office

received the expert opinion of Dr. M. which was dated 20 January 1990.

On 19 February 1990 the expert opinion prepared by Prof. S. which was

dated 20 December 1989 was received.  Both opinions were submitted to

defence counsel.

      On 1 March 1990 the Public Prosecutor's Office preferred the

indictment against the applicant on the charge of in particular murder.

On 7 March 1990 the indictment concerning the charge of rape was

preferred with a request for a joinder of the two proceedings.  The

Presiding Judge of the competent Chamber (Schwurgerichtskammer) at the

Freiburg Regional Court (Landgericht) asked the experts and defence

counsel for comments on the envisaged date for the trial, namely April

to October 1990.

      On 24 April 1990 the Court of Appeal ordered the applicant's

further detention on remand.  The Court of Appeal noted that the Public

Prosecutor's Office had received two psychiatric expert opinions on the

applicant's mental health in February 1990, and had meanwhile preferred

the indictment.  The date of the trial had been discussed with the

experts and the applicant's defence counsel and 19 September 1990 was

the earliest possible date for the trial.

      On 27 June 1990 the Federal Constitutional Court (Bundesver-

fassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) about the decision of 24 April 1990.

The Constitutional Court considered that the applicant's continued

detention on remand could not yet be objected to under constitutional

law.  The Constitutional Court noted that numerous witnesses had been

heard and that expert opinions had been necessary.  Thus the overall

length of the preliminary investigations from April 1988 until the

indictment in March 1990 could not be held against the prosecution

authorities, although there might have been some periods of delay.  The

fixing of the trial for September 1990 was not due to the workload of

the Regional Court, but there had been a coordination.

      On 10 July 1990 the Freiburg Regional Court committed the

applicant for trial as regards the charge of rape, on 12 July 1990 the

Regional Court also committed the applicant for trial as regards the

charge of murder, and it joined both proceedings.  It further ordered

the applicant's continued detention on remand.

      On 26 July 1990 the Karlsruhe Court of Appeal ordered the

applicant's further detention on remand.  The Court of Appeal,

referring to its earlier decision, considered in particular that the

investigations against the applicant had been duly furthered.  It noted

that the applicant had been committed for trial on 12 July, and that

the trial was scheduled to start on 19 September 1990.

      On 3 August 1990 the Presiding Judge at the Freiburg Regional

Court fixed 19 September 1990 as date for the start of the trial

against the applicant, which was to be continued in September and

October 1990.

      On 18 September 1990 the Federal Constitutional Court refused to

admit the applicant's constitutional complaint about the decision of

26 July 1990 on the ground that it offered no prospect of success.  The

Constitutional Court found that the length of the applicant's detention

on remand could still be accepted from a constitutional point of view.

It noted that the trial had in the meantime been fixed.  Furthermore,

the decision in question did not disclose any arbitrariness and had

regard to all relevant aspects and arguments put forward by the

applicant.  The decision was served on 19 September 1990.

      On 20 December 1990 the Freiburg Regional Court convicted the

applicant of manslaughter, rape, unlawful coercion and deprivation of

liberty, sentenced him to eleven years' imprisonment, and also ordered

his detention in a psychiatric hospital.  In fixing the sentence, the

Regional Court had regard to the extraordinary length of the

applicant's detention on remand, which, due to his personality, put a

particular strain on him.

      On 16 July 1991 the Federal Court of Justice (Bundesgerichtshof)

dismissed the applicant's appeal on points of law (Revision).  The

decision was served on 31 July 1991.

      According to S. 449 of the German Code of Criminal Procedure

(Strafprozessordnung) a criminal conviction and sentence must not be

executed unless the judgment has become final (rechtskräftig).

COMPLAINTS

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

about the length of his detention on remand.

2.    He also complains under Articles 3 and 6 of the Convention about

his conviction of 20 December 1990, and of the proceedings concerned.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 30 January 1992 and registered

on 1 April 1992.

      On 1 July 1992 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

      On 8 October 1992 the Government submitted their observations.

      On 2 December 1992 the applicant was granted legal aid.

      The applicant submitted observations in reply on 13 December

1992, which were amended by counsel on 13 April 1993.  On 18 June 1993

the Government supplemented their observations.

THE LAW

1.    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 ... shall be entitled to trial

      within a reasonable time or to release pending trial."

a.    The respondent Government consider that the applicant can no

longer claim to be the victim of a violation of his right under

Article 5 para. 3 (Art. 5-3), as any possible breach was remedied by

the Freiburg Regional Court's judgment of 20 December 1990.

      The Commission notes that the Freiburg Regional Court, in the

said judgment of 20 December 1990, convicted the applicant in

particular of manslaughter and rape, sentenced him to eleven years'

imprisonment, and also ordered his detention in a psychiatric hospital.

In fixing the sentence, the Regional Court took into account that the

applicant's detention on remand had attained an extraordinary length

and thereby put a particular strain on him.

      The Commission recalls that, as regards complaints about a breach

of Article 6 para. 1 (Art. 6-1), mitigation of sentence and

discontinuance of prosecution on account of the excessive length of

proceedings do not in principle deprive the individual concerned of his

status as a victim within the meaning of Article 25 (Art. 25), unless

the national authorities have acknowledged either expressly or in

substance, and then afforded redress for, the breach of the Convention

(Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, p.

30, para. 66).

      The Commission finds that the Freiburg Regional Court, though

referring to an extraordinary length of the applicant's detention on

remand, did not thereby make any finding of a violation of Article 5

para. 3 (Art. 5-3).  Moreover, this length and its impact on the

applicant were only indeterminate elements in fixing his sentence.

      Consequently, the applicant may still claim to be victim of a

violation of his right under Article 5 para. 3 (Art. 5-3) of the

Convention.

b.    The Government also submit that the applicant failed to exhaust

domestic remedies, as required by Article 26 (Art. 26) of the

Convention, on the ground that he did not lodge a constitutional

complaint with the Federal Constitutional Court regarding his

conviction, as confirmed by the Federal Court of Justice on 16 July

1991.      Under Article 26 (Art. 26) of the Convention, the Commission may

only deal with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

      The Commission notes that the applicant lodged a constitutional

complaint against the Karlsruhe Court of Appeal's decision of 24 April

1990 ordering his continued detention on remand.  This complaint was

rejected by the Federal Constitutional Court on 27 June 1990.

Furthermore, the applicant unsuccessfully lodged a constitutional

complaint against the Court of Appeal's decision of 26 July 1990 on the

continuation of his detention on remand.  In its decision of

18 September 1990, the Federal Constitutional Court took into account

that a date for the trial had in the meantime been fixed, and its

considerations thus also covered this period.

      In these circumstances, the Commission considers that the

applicant could not be expected, under Article 26 (Art. 26) of the

Convention, to lodge a further constitutional complaint about the

length of his detention on remand (cf. No. 11703/85, Dec. 9.12.87, D.R.

54 p. 116).

      The applicant's complaint under Article 5 para. 3 (Art. 5-3)

cannot, therefore, be rejected under Article 26 (Art. 26) of the

Convention for non-exhaustion of domestic remedies.

c.    The Commission further observes that, under Article 26 (Art. 26)

of the Convention, a matter must be raised before the Commission within

six months from the date on which the final decision was taken.

      As regards the applicant's complaint about the length of his

detention on remand, the Commission notes that the decision of the

Federal Constitutional Court of 18 September 1990 was served on

19 September 1990.

      The applicant's detention on remand, which had started at the

date of his arrest on 2 April 1988, ended, for the purposes of

Article 5 para. 3 (Art. 5-3) of the Convention, on 20 December 1990

when he was convicted at first instance (cf. Eur. Court H.R., B. v.

Austria judgment of 28 March 1990, Series A no. 175, pp. 14-16, paras.

36-38).

      The applicant lodged his present application on 30 January 1992,

i.e. not within six months after either the Constitutional Court's

second decision or the termination, for the purposes of Article 5 para.

3 (Art. 5-3), of his detention on remand.  However, he complied with

the six-months-rule in respect of the judgment of the Federal Court of

Justice of 16 July 1991 on his appeal on points of law against his

conviction, which was served on 31 July 1991.

      The Commission finds that, under Article 26 (Art. 26) of the

Convention, the applicant could not be expected to complain about the

length of his detention on remand until termination of the criminal

proceedings against him as a whole, where the trial courts were in a

position to review the length of his detention on remand and, in fixing

the sentence, give redress, if they should have established a breach

of Article 5 para. 3 (Art. 5-3) (see, mutatis mutandis, No. 11755/85,

Dec. 9.7.87, D.R. 53 p. 166).

      The Commission considers that, in these circumstances, this part

of the application cannot be rejected under Article 26 (Art. 26) for

non-compliance with the time-limit of six months.

d.    The Government further submit that the overall length of the

applicant's detention on remand of less than thirty-two months and

eighteen days was not unreasonable in the circumstances.  They refer

in particular to the complexity of the facts and of the investigations,

which necessitated the taking of expert evidence.  They contend that

there were no undue delays on the part of the German authorities.

      The applicant considers that the proceedings until the

applicant's conviction could have been terminated after eighteen months

as a maximum.  He submits that the case was not complex, and that the

relevant results of the investigations were already available in

September and October 1988.  The experts could have been appointed

simultaneously.  According to the applicant, his refusal to make any

statements on the charges against him did not render the investigations

more difficult.

      The applicant points at several delays in the course of the

proceedings, in particular the delay in preparing the first report on

the result of the investigations and transmitting it to the Public

Prosecutor's Office.  The forensic expert opinion on the circumstances

of the offence should have been ordered from the very beginning of the

investigations.  Following a first contact with the forensic expert,

it took a month until he was appointed as expert in January 1989.  The

applicant further submits that the appointments of the psychiatric and

the psychological experts were belated.  The Public Prosecutor's Office

could have also started to prepare the indictment earlier and thus have

it preferred one month earlier.

      The Commission notes that the applicant was arrested on 2 April

1988 and detained on remand until 20 December 1990, i.e. approximately

two years, eight months and three 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 (cf. Eur. Court H.R., Letellier judgment of 26 June 1991,

Series A no. 207, p. 18, para. 35; W. v. Switzerland judgment of

26 January 1993, para. 30, to be published in Series A no. 254).

      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 (cf. Eur. Court

H.R., Letellier judgment, loc. cit.; W. v. Switzerland judgment, loc.

cit.).

      The Karlsruhe Court of Appeal, referring to the investigations

and evidence against the applicant, found that there was a reasonable

suspicion that he had committed the offence in question.  Its finding

as to the risk of the applicant absconding was based on the seriousness

of the charges against him and the severity of the sentence which he

risked as well as his attempt to abscond shortly after his arrest.  The

applicant's continued detention was thus based on sufficient and

relevant grounds.

      As regards the conduct of the proceedings by the domestic

authorities, the Commission notes that the preliminary investigations

started in April 1988 and the Public Prosecutor's Office preferred the

indictment in March 1990.  The applicant was committed for trial in

July 1990, and convicted on 20 December 1990.

      The Karlsruhe Court of Appeal, in its respective decisions,

carefully examined the progress of the criminal proceedings against the

applicant and considered the question of proportionality of the

applicant's continued detention on remand.  It did state a delay of one

month in the handling of the case by the Public Prosecutor's Office,

which nevertheless did not render the continued detention on remand

disproportionate.  The findings of the Court of Appeal were confirmed

by the Federal Constitutional Court in its decisions of 27 June and

18 September 1990.

      The Commission considers that especially the period of almost two

years for completing the preliminary investigations may at first sight

appear excessive.

      The Commission recalls that the right of the accused in detention

to have his case examined with particular expeditiousness must not

hinder the efforts of the prosecution authorities to carry out their

tasks with proper care (cf. Eur. Court H.R., Tomasi judgment of 27

August 1992, Series A no. 241-A, p. 39, para. 102; W. v. Switzerland

judgment, loc. cit., para. 42).

      In the present case, the investigations were of some complexity.

Though the applicant was suspected and arrested at the very beginning

of the investigations on the case of manslaughter, extensive taking of

expert evidence was necessary in order to clarify the circumstances of

the offence and the question of the applicant's criminal

responsibility.  The applicant himself did not make any statements on

the charges against him.  The investigations, in particular regarding

the taking of expert evidence, were conducted by the Freiburg Public

Prosecutor's Office in cooperation with the applicant's defence

counsel, who was also involved in the choice of the medical experts

concerned.

      It does not appear that the conduct of the investigations by the

Freiburg Public Prosecutor's Office was in general unreasonable and

gave rise to delays which run counter to the requirements of promptness

under Article 5 para. 3 (Art. 5-3).  It is true that the Karlsruhe

Court of Appeal, in its decision of 12 January 1990, pointed at a delay

of one month in preparing the indictment; the Federal Constitutional

Court, in its decision of 27 June 1990, also referred to some possible

delays.  However, there is no indication of any periods of inactivity

on the part of the prosecution authorities.  Their approach to the

investigations cannot be regarded as inefficient and unreasonable,

thus, on the whole, as failure to act with the necessary diligence.

      In these circumstances, the Commission considers that the period

of the applicant's detention on remand did not 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 manifestly

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

Convention.

2.    The applicant further complains about his conviction by the

Freiburg Regional Court on 20 December 1990 and the proceedings

concerned.

      However, the Commission is not required to decide whether or not

the applicant's submissions in this respect disclose any appearance of

a violation of the Convention as the applicant failed to lodge a

constitutional complaint with the Federal Constitutional Court as

regards his conviction and the court proceedings.  He has not,

therefore, as required by Article 26 (Art. 26) of the Convention,

exhausted the remedies available to him under German law.

      It follows that this part of his application must be rejected

under Article 27 para. 3 (Art. 27-3) of the Convention.

      Accordingly, the Commission by a majority

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber        President of the First Chamber

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