Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19929/92

by H.Ö.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 1 September 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

G.B. REFFI

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 21 February 1992

by H.Ö. against Germany and registered on 16 April 1992 under file No.

19929/92;

Having regard to:

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

Commission;

- the observations submitted by the respondent Government on

27 October 1992 and the observations in reply submitted by the

applicant on 25 January 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen, born in 1945 and presently

detained in prison in Koblenz. He is represented by Mr. M. Enders, a

lawyer practising in Koblenz.

The applicant complains of his detention on remand.

It follows from his statements and the documents submitted that

on 24 July 1991 the District Court (Amtsgericht) in Koblenz issued a

warrant of arrest against the applicant who was suspected of tax

evasion. The applicant had been provisionally arrested the previous

day, i.e. 23 July 1991.

On 24 October 1991 the District Court ordered that the

applicant's detention on remand should continue.

On 4 November 1991 the Koblenz Regional Court (Landgericht)

rejected the applicant's appeal against the order of 24 October 1991.

It is stated in the decision that on the basis of the result of the

investigations and in particular the seized documents, there was strong

suspicion that the applicant as manager of the firm API GmbH (company

with limited liability) had evaded taxes. The company had according

to the findings of the investigation authorities been acting as an

employment agency and had not paid taxes and social security

contributions due in connection with the wages paid by it.

The court further considered that there was danger of absconding

as the applicant had to expect serious punishment and might therefore

be tempted to return to Turkey despite the fact that his family lived

in Germany and two of his children went to school there. Furthermore

his company had gone bankrupt and the applicant no longer had any

regular income. The court noted that it was unnecessary to decide

whether the danger of suppression of evidence, mentioned in the arrest

warrant of 24 July 1991, still existed.

On 2 December 1991 the Koblenz Court of Appeal

(Oberlandesgericht) rejected the applicant's further appeal. The court

considered that in view of the evidence given by the applicant's former

employee H. there was evidence that the applicant had knowingly evaded

taxes in the amount of some 836,000 DM and social security

contributions in the amount of some 407,000 DM. He therefore had to

expect a severe sentence and consequently there was a risk of

absconding in that he returned with his family to Turkey in order to

live there under a new identity to avoid extradition. According to the

courts, however, no danger of suppression of evidence could be

established.

The applicant then lodged a constitutional complaint.

On 29 January 1992 a group of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) rejected this complaint

as offering no prospects of success. The court considered that the

decisions complained of did not disclose any violation of

constitutional rights or arbitrariness. The continuing detention on

remand was also not disproportionate as the applicant had to expect a

severe sentence.

On 7 February 1992 the Koblenz Court of Appeal ordered that the

applicant's detention should continue and that the question of whether

or not it should be maintained should again be examined on 7 May 1992.

The court stated further evidence taken in the meantime confirmed

the strong suspicion against the applicant. Contrary to the arguments

of the defence, the courts considered that the finance authorities'

decision of 16 January 1992 suspending the execution of a tax payment

order dated 28 August 1991 did not prove that the claims raised by the

tax authorities against the applicant were unfounded. The suspension

had been ordered in consequence of an appeal lodged by the applicant

and had only been ordered provisionally pending the outcome of the

examination of the applicant's appeal. This did not mean that the

appeal and the applicant's objections against his tax liability were

well-founded. The court further stated that in view of the complexity

of the case and the necessity to hear a large number of witnesses it

had not yet been possible to terminate the investigation proceedings.

According to information given by the public prosecution a further

month was necessary to hear witnesses. Furthermore the final report

of the finance authorities had not yet been established. Consequently

it was necessary to prolong the detention on remand for three more

months as danger of absconding also continued to exist for the reasons

expressed in the previous decision of 2 December 1991. This did not

violate the principle of proportionality.

The applicant again lodged a constitutional complaint which was

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

on 10 March 1992 as offering no prospects of success. It is stated

in the decision that there was nothing to show that the existence of

strong suspicion against the applicant was arbitrarily assumed. In

view of the difficulty and complexity of the investigations no

violation of the right to speedy proceedings was manifest and the

length of detention on remand was proportionate in view of the sentence

which the applicant had to expect.

On 14 May 1992 the Koblenz Court of Appeal again prolonged

detention on remand.

On 11 June 1992 an indictment was filed and the main proceedings

were opened on 10 July 1992.

Requests made by the defense on 15 July 1992 to suspend the

proceedings pending proceedings before the finance courts and to

suspend enforcement of the arrest warrant were rejected on 21 July

1992. After several hearings the applicant was convicted on 27 August

1992 of fraud and tax evasion (Betrug und Steuerhinterziehung) and

sentenced to three years imprisonment. According to the findings of

the trial court the applicant had evaded wage taxes in the amount of

at least DM 700,000. He had also caused damages to the social security

authorities but had, to a great extent, repaired them in the meantime.

The offences had been admitted by the applicant who accepted the

judgment waiving his right to appeal on the day the judgment was

pronounced.

Also on the same day the warrant of arrest was set aside and the

applicant set free.

At the trial the applicant was defended by Mr. B, a defence

counsel from Munich.

On 31 October 1992 the applicant was invited to start serving the

remaining part of sentence, deduction being made of the period he had

spent in prison on remand. A request to stay the execution of sentence

was rejected by the Public Prosecution and this decision was confirmed

on 9 November 1992 by the Regional Court. A further appeal was

rejected by the Koblenz Court of Appeal on 8 December 1992. Insofar

as the applicant had submitted that he needed time to propose an action

against the tax authorities - action which would prove his innocence -

it is stated by the appellate court that in view of the existing

results of the tax authorities' investigations this action could as

well be prepared while the applicant served his sentence, the stay of

execution could be granted only in conjunction with a request for a

retrial - if such request appeared to offer any chance of success.

The applicant thereupon returned to Turkey in order to avoid

further imprisonment.

COMPLAINTS

The applicant mainly complains under Article 5 paras. 1 (c) and

3 of the Convention that his detention on remand was unjustified and

unreasonably prolonged. He submits that he admitted the charges laid

against him only in order to get free and obtain access to the seized

documents needed for the preparation of his action against the tax

authorities. He further submits that had he been released before his

trial and given enough time and opportunity to prepare his defense he

would not have fled. After conviction as a result of an unfair trial

he had however no other choice than to leave Germany provisionally and

leave his family behind. He now also complains of the alleged

unfairness of the criminal proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 February 1992 and registered

on 16 April 1992.

On 7 July 1992 the Commission decided that notice of the

complaint on the length of detention should be given to the respondent

Government, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure,

and that the parties should be invited to submit their written

observations on the admissibility and merits of this complaint.

The Government sent their written observations on 27 October

1992. The applicant's representative submitted observations in reply

on 25 January 1993.

THE LAW

1. The applicant mainly questions the lawfulness and length of his

detention on remand.

The applicant points out that once he was made to "confess"

during the trial he was immediately released and there was no longer

question of any danger of absconding.

The Government submit, that in the course of the investigations

first of all a great number of documents had to be sifted and examined,

then a number of witnesses had to be heard and an audit report of the

tax authorities had to be awaited. In view of the difficulty and

complexity of the matter it had been handled with adequate diligence,

and a detailed and uncontested calendar of proceedings was submitted

by the Government in support of the latter submission.

It is in the first place the task of the national judicial

authorities to ensure that pre-trial detention does not exceed a

reasonable time. Convention organs decide the question of whether or

not the "reasonable time" exigency was respected essentially on the

basis of the reasons given in the decisions of the domestic courts and

of the true facts mentioned by the applicant in his applications for

release.

The persistence of a reasonable suspicion that the person

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

validity of continued detention, but, after a certain lapse of time,

it no longer suffices. The Commission must then establish whether the

other grounds given by the judicial authorities continued to justify

the deprivation of liberty and whether the competent national

authorities displayed adequate diligence in the conduct of the

proceedings (Eur. Court H.R., W. v. Switzerland, judgment of 26 January

1993, Series A No. 254, para. 30) which lasted from 23 July 1991 until

27 August 1992 when the applicant was convicted and sentenced. He thus

spent a little more than thirteen months in detention on remand.

The Commission notes that the applicant's detention on remand

was, in accordance with German law, prolonged at regular intervals by

the Koblenz Court of Appeal on the ground that not only was there

strong suspicion against the applicant but also, at the first stage of

proceedings, danger of collusion and throughout the applicant's

detention danger of absconding. The Federal Constitutional Court twice

examined complaints against these decisions and found that the

complaints were unfounded the matter being dealt with by the competent

authorities with adequate diligence and the length of detention being

proportionate to the sentence the applicant had to expect.

The Commission cannot find that these reasons are arbitrary or

unwarranted by the underlying facts . It follows in fact from the

uncontested submissions of the respondent Government and the calendar

of the proceedings that the length of detention on remand was due to

the complexity and difficulty of the investigations and that throughout

the period in question the competent authorities pursued the matter

with the necessary and required diligence.

It follows that this part of the application does not disclose

any appearance of a violation of Article 5 para. 1 (c) or 3

(Art. 5-1-c, 5-3) of the Convention and therefore has to be rejected

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

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

2. The applicant further complained that he was denied a fair trial

and has alleged, subsequent to his conviction, that he was brought to

admit the charges laid against him and to accept the judgment in order

to be set free and to have access to documents necessary to prove that

he had not evaded taxes.

However, the Commission is not called upon to examine this

complaint as under Article 26 (Art. 26) of the Convention it may only

deal with an application after all domestic remedies have been

exhausted.

It is true that the applicant alleged that he accepted the

judgment under pressure. However his allegations in this respect are

unsubstantiated and unsupported by any kind of at least prima facie

evidence. There is consequently nothing to show that the applicant,

who was assisted at his trial by a defense counsel, was in any

objectionable manner prevented from appealing against conviction and

sentence. The applicant has not therefore, in accordance with Article

26 (Art. 26) of the Convention, complied with the condition as to the

exhaustion of domestic remedies.

It follows that this part of the application has to be rejected

for non-exhaustion of domestic remedies under Article 27 para. 3

(Art. 27-3) 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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H.Ö. v. GERMANY

H.Ö. v. GERMANY

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