AS TO THE ADMISSIBILITY OF

Application No. 11703/85

by N.D.

against Federal Republic of Germany

        The European Commission of Human Rights sitting in private

on 9 December 1987, the following members being present:

              MM. C.A. NØRGAARD, President

                  S. TRECHSEL

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  H.C. KRÜGER Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 8 August 1985

by N.D. against the Federal Republic of Germany and registered

on 21 August 1985 under file N° 11703/85;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having regard to the observations submitted by the respondent

Government on 4 February 1987;

        Having deliberated;

        Decides as follows:

THE FACTS

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

summarised as follows.

        The applicant is a Yugoslav citizen, born in 1949.  He is a

businessman.  When introducing his application the applicant was

detained on remand in a prison in Düsseldorf.  In the meanwhile he has

left the Federal Republic of Germany.  Before the Commission he is

represented by Mr.  Norbert Respondeck, a lawyer practising in

Düsseldorf.

        On 28 December 1981 the Yugoslav national D and the German

national W jointly committed aggravated robbery in a private apartment

in Mülheim-Ruhr.  They robbed cash, jewelry and diamonds to the value

of about 40-50,000 DM.  During the investigations which commenced

immediately after the robbery certain information appeared which

linked the applicant to this robbery.  On 7 July 1983 the Duisburg

Department of Public Prosecution therefore commenced investigations

against the applicant.

        Due to the outcome of the investigations against the

applicant, detention on remand was ordered against him on 17 August

1983 on the basis of a warrant of arrest issued by the District Court

(Amtsgericht) of Mülheim, the reasons being that he was strongly

suspected of being involved in the aggravated robbery and that, in

view of the severity of the sentence to be expected, he might attempt

to flee.  At that time, the applicant was still serving a prison

sentence for incitement to commit arson, pronounced by the Duisburg

Regional Court (Landgericht) on 25 April 1983.  He was expected to be

released on 7 March 1984, having served two thirds of it.  Until then,

the detention on remand and the prison sentence were co-terminus

(Ãœberhaft).

        On 22 December 1983 the applicant made a first request for a

review of his detention pursuant to Section 117, sub-section 1 of the

Code of Criminal Procedure (Strafprozessordnung - StPO).  He submitted

that there was no strong suspicion of his having committed an offence.

However, he withdrew his request at the hearing in the District Court

of Mülheim on 5 January 1984.

        On 24 January 1984 the Duisburg Department of Public

Prosecution brought charges before the Grand Criminal Division of the

Duisburg Regional Court (grosse Strafkammer des Landgerichts Duisburg)

against the above-mentioned W and D for aggravated robbery, bodily

injury and rape, and against the applicant for incitement to

aggravated robbery.  The indictment was served on the applicant on

10 February 1984.

        On 8 March 1984 the 14th Grand Criminal Division of the

Duisburg Regional Court opened proceedings against the applicant and

his co-accused.  At the same time the Court ordered that the detention

on remand should continue for the reasons given in the warrant of

arrest of 17 August 1983.

        Proceedings against the co-accused, W, were separated from

the rest of the complex on 8 March 1984.  Decisive for this step was

the fact that W - at this stage of the investigation - had confessed.

Consequently it was possible to conduct expedited proceedings against

him.  On 12 April 1984 he was sentenced in a judgment of the Duisburg

Regional Court, which has become final and binding, to an aggregate

prison sentence of four years for rape and aggravated robbery.

        On 9 March 1984 the applicant again requested a review of his

detention pursuant to Section 117, sub-section 1 StPO.  There was, he

claimed, no strong suspicion of his having committed an offence and,

in particular, the incriminating statements made by the suspect who

had confessed could not be relied upon.  Moreover, the applicant

maintained that there was no danger of flight since he was expecting

to be deported and had resigned himself to it.  In an order of

20 March 1984 the Duisburg Regional Court rejected the request, making

reference to the warrant of arrest of 17 August 1983 and the indicment

of 24 January 1984.

        On 25 May 1984, the applicant requested his release again.  He

maintained that the requirements for further detention on remand were

not fulfilled.  Furthermore, he requested that his case be separated

from the rest since the remaining investigation had nothing to do with

the charge brought against him.

        The Duisburg Regional Court decided on 29 May 1984 to prolong

the detention.  The Court found that the investigations carried out so

far revealed a justified reason to believe that he had committed the

offence with which he was charged.  Furthermore, the Court found that

there was a reason to believe that the applicant, if released, would

abscond and that a continuing detention would not be disproportionate,

having regard to the punishment to be expected, if convicted.

        On 3 July 1984 the applicant appealed against this decision to

the Court of Appeal (Oberlandesgericht) of Düsseldorf which, however,

upheld the decision on 16 July 1984.

        In the subsequent period, further ex officio reviews of the

applicant's detention were conducted in pursuance of Sections 122 and

117 StPO on 16 August 1984 (Duisburg Regional Court), on 28 September

1984 (Court of Appeal of Düsseldorf), on 3 December 1984 (Duisburg

Regional Court), and on 15 January 1985 (Court of Appeal of

Düsseldorf).   The courts ordered the continuation of the detention on

remand for the reasons already given.

        In the meantime it turned out that the investigative

proceedings against the co-accused D and the applicant, who denied

their parts of the offences, required obtaining evidence from

abroad.  On 12 June 1984 the Duisburg Regional Court, applying the

Judicial Assistance Treaty of 1 October 1971 between the Federal

Republic of Germany and Yugoslavia, made a request to the Yugoslav

authorities for the service of a summons on three witnesses of

Yugoslav nationality living in Yugoslavia.

        On 20 July 1984 the Regional Court of Duisburg fixed the dates

for the main hearing to be held from 4 to 21 February 1985.  The

applicant protested against this arrangement.  He referred to the

allegedly disproportionate length of detention and requested again

that his case be separated from the rest.  The Court, however,

rejected the applicant's protest on 27 August 1984 as being

inadmissible.  The applicant sought no legal redress from this

decision.

        The applicant's trial commenced on 4 February 1985 before the

Duisburg Regional Court.  During the trial the applicant's co-accused

D named nine further witnesses living in Yugoslavia who would confirm

that he, D, had been in Yugoslavia at the time of the offences.  In

order to serve a summons on these witnesses too, in the form of a

request for judicial assistance, the Court adjourned the main hearing

on 13 March 1985.  The new dates for the main hearing were set down

for the period from 9 December 1985 onwards.

        In view of the date set for the second main hearing

involving the applicant, he again submitted, on 18 April 1985, his

request for release from detention.  In addition to his previous

arguments he also pointed out that the reason for the adjournment

of the case had nothing to do with his case.  It would, in his view,

thus be unacceptable to continue the detention.  However, on

14 March 1985 the Duisburg Regional Court nevertheless ordered the

continuation of the detention on remand.  This decision was upheld on

24 April 1985 by the Court of Appeal of Düsseldorf.

        On 19 May 1985 the defence counsel for the applicant brought a

constitutional complaint (Verfassungsbeschwerde) before the Federal

Constitutional Court (Bundesverfassungsgericht) against the decision

of the Court of Appeal of Düsseldorf of 24 April 1985.  He asserted

primarily that the detention on remand was unjustified as there was no

basis for a suspicion of an offence.  The duration of the detention on

remand was, moreover, out of proportion to the offence of which the

applicant was accused and to the sentence to be expected.  The length

of the detention was furthermore attributable to avoidable delays in

the proceedings.  In particular, the applicant's proceedings ought to

have been separated from those of the co-defendants.

        On 28 May 1985 three judges of the Federal Constitutional

Court dismissed the applicant's complaint as it did not offer

sufficient prospects of success.  The judges found that the reasons

given by the Court of Appeal for the continuation of the detention

were tenable and not arbitrary.  No avoidable delays in the

proceedings could be identified.  Nor was there anything to indicate

at that stage that continued detention on remand could be regarded as

disproportionate.

        In the subsequent period further ex officio reviews of the

detention on remand were conducted on 10 July 1985 (Duisburg Regional

Court), on 14 August 1985 (Court of Appeal of Düsseldorf), on 11 and

22 October 1985 (Duisburg Regional Court) and on 26 November 1985

(Court of Appeal of Düsseldorf).

        The courts ordered the continuation of the detention on remand

on the grounds already given.  The applicant did not bring further

complaints before the Federal Constitutional Court.

        On 9 December 1985 the hearing recommenced before the Duisburg

Regional Court.  In the course of this hearing the Yugoslav witnesses

intended to clear the name of the co-accused D.  Their statements,

however, were disproved.  Judgment in the case was pronounced on

8 January 1986.  The co-accused D was convicted of aggravated robbery

and rape, the applicant of incitement to aggravated robbery.  The

applicant received a two-year prison sentence.   Pursuant to Sections

54 and 55 of the German Penal Code (Strafgesetzbuch-StGB) the Court

fixed an aggregate sentence of three years and six months, the

sentence for incitement to arson mentioned above being included.

After deducting the period spent in detention on remand, a residual

sentence of 122 days was left.  Nonetheless, on the day on which

judgment was pronounced, the warrant of arrest was withdrawn and the

applicant released.

        The applicant appealed against the judgment on points of law.

However, on 30 July 1986 the appeal (Revision) was dismissed as

ill-founded by the Federal Court of Justice (Bundesgerichtshof).

        On 3 February 1986 the applicant informed the authorities

that he was returning to Yugoslavia.  On 12 February 1986 detention on

remand on suspicion of tax evasion concerning more than 1,400,000 DM

was ordered against the applicant in the form of a warrant of arrest

issued by the Duisburg Regional Court.  As his place of residence

is unknown, he has been declared a wanted person.

COMPLAINTS

        The applicant complains that his detention on remand was

unlawful since the requirements for such detention were not fulfilled.

He refers in this respect to Article 5 para. 1 (c) of the Convention.

Furthermore, he invokes Article 5 para. 3 of the Convention alleging

that he was not brought to trial within a reasonable time.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 8 August 1985 and registered

on 21 August 1985.

        After a preliminary examination by the Rapporteur, the

Commission decided on 13 October 1986 to bring the application to the

notice of the respondent Government and to invite them to submit

written observations on the admissibility and merits of the

application, limited to the question whether the applicant was brought

to trial within a reasonable time.

        After an extension of the time-limit, the Government's

observations were submitted on 4 February 1987.

        The time-limit for the submission of the applicant's

observations in reply expired on 7 April 1987 but no observations were

received.  Neither did the applicant request an extension of the

time-limit.

        The Commission's Secretary's reminders of 24 April and 1 June

1987 remained unanswered.  In reply to the Commission's Secretary's

third reminder of 22 July 1987 the applicant's representative informed

the Commission on behalf of the applicant that he intended to pursue

the application.  This point of view was maintained in the applicant's

representative's letter of 25 August 1987 in which he referred to his

submissions made prior to the registration of the application.  No

other submissions in reply to the observations of the Government have

been received.

SUBMISSIONS OF THE PARTIES

        The Government

        As to the admissibility

        The applicant did, it is true, bring a constitutional

complaint against the detention review order of the Düsseldorf Court

of Appeal of 24 April 1985.  Following this constitutional complaint,

however, he did not continue to exhaust domestic remedies.  Making an

application does not mean that he no longer has to make use of all

possible legal remedies (cf.  Eur.  Court H.R., Matznetter judgment of

10 November 1969, Series A no. 10 p. 33 para. 10).

        The German courts must be given the opportunity of examining

a possible violation of the Convention within the system of legal

remedies they themselves offer and thus, where possible, of avoiding

any such violation, particularly as the Convention is directly

applicable law in the Federal Republic of Germany and the applicant

can complain at any time before the German courts of its violation.

        The applicant did not continue to exhaust domestic remedies

after introducing his application.  He failed to bring another

constitutional complaint before the Federal Constitutional Court

against the decisions of the Düsseldorf Court of Appeal of 14 August

and 26 November 1985 ordering the continuation of detention on remand.

There was, however, good reason to do so.  The applicant cannot argue

here that the remedy in question would have been doomed to failure

right from the start.  On the contrary:  the Federal Constitutional

Court, in its decision of 28 May 1985, explicitly stated that at the

point in time when the decision was taken, there was nothing to

indicate that the continuation of the detention on remand would be

disproportionate.

        This shows that the Federal Constitutional Court was reserving

the right to examine again at a later date the proportionality of the

detention on remand and, if necessary, to arrive at a different

assessment.  This applies all the more as, under Section 117 sub-

section 5 and Section 122 sub-section 4 StPO, there must be a further

review by a court of the detention on remand every 3 months at the

latest.  This means that the applicant ought to have taken recourse to

the Federal Constitutional Court again at the latest on the expiry of

a 3 month period, in other words, after the decision of the Düsseldorf

Court of Appeal of 14 August 1985.  Thus, as regards the detention on

remand from that point in time onwards, he failed to exhaust all

domestic remedies.

        As to the merits

        The relevant date as regards the commencement of the period

spent in detention is not the day of issue of the warrant of arrest -

17 August 1983 - but rather 8 March 1984, the day on which the

applicant's prison sentence for incitement to arson was suspended on

probation and the detention on remand in the present proceedings first

became effective.  Until that point in time, the applicant's detention

was justified by Article 5 para. 1 (a) of the Convention in that the

applicant was serving a prison sentence following the final and

binding judgment of the Duisburg Regional Court of 25 April 1983.  The

detention on remand additionally ordered as a pure formality

(Ãœberhaft) did not constitute any further detriment pursuant to the

regulation of detention on remand set out in Section 119 StPO.  Nor

has he made a concrete submission as to any such additional grievance.

For the period up to 8 March 1984, therefore, there are no grounds for

invoking the protection offered by Article 5 para. 3 of the

Convention.

        The detention on remand ended on 8 January 1986 - the day of

the judgment of the Duisburg Regional Court - with the withdrawal of

the warrant of arrest and the release of the applicant.  The total

duration of the detention on remand was thus 1 year and 10 months.

The last 5 months of this period should not be considered here,

however, due to failure to exhaust all domestic remedies.

        According to the case-law of the European Court of Human

Rights the factors to be examined concerning the question whether the

time spent in detention was reasonable, are

-       whether the grounds for the domestic decisions justify the

continuation of the detention on remand when one takes into account

the opposing grounds of the applicant; and

-       whether the investigation and the criminal proceedings were

conducted without avoidable delays.

        The grounds for the detention orders were the strong suspicion

of the commission of a crime and the danger of flight.  They are set

out in detail in the orders of the Düsseldorf Court of Appeal of

16 July and 28 September 1984, to which reference is also made by the

order of 24 April 1985.

        Directed at the issue of a strong suspicion were firstly and

primarily the objections lodged by the applicant against his

detention.  There was, however, a strong suspicion of his having

committed an offence.  The applicant was incriminated by the

statements of the co-perpetrator W, and a witness, the one largely

corroborating the other.  He was unable to adduce any plausible

reasons as to why they should both want to incriminate him falsely.

The suspicion against him was then finally confirmed by his final and

binding conviction.

        As to the danger of flight, the orders of the Düsseldorf Court

of Appeal rightly pointed out that the applicant had to expect a

sizeable prison sentence, in relation to which the length of the

period spent in detention on remand was not disproportionate.  Robbery

(pursuant to Section 249 StGB), particularly in the form of aggravated

(armed) robbery, is reckoned under German law among the most serious

of crimes and is punished by a term of imprisonment of not less than

5 years, and even in less serious cases pursuant to Section 250

sub-section 2 StGB, by a prison sentence of between 1 and 5 years.

The incitement committed by the applicant is, under Section 25 StGB,

punished on principle in exactly the same way as the offence itself.

Accordingly, for incitement to aggravated robbery, the applicant was

also sentenced to 2 years' imprisonment.

        This penalty, which formed part of an aggregate penalty of 3

years and 6 months, had not been served in its entirety at the time of

his release on 8 January 1986.  It was rather the case that a residual

penalty of 4 months still remained.  Furthermore, at the point in time

when the orders were made concerning the continuation of detention,

and as long as the judgment on the applicant for incitement to robbery

had not been passed, there was every reason to expect that the

applicant would be punished even more severely.  The detention orders

made by the Düsseldorf Court of Appeal are convincingly reasoned as

regards the issue of the seriousness of the crime and the sentence to

be expected, if one takes into account the circumstances which were

then already known and also those which were foreseeable.  This is

true, even if consideration is also given to the fact that the danger

of flight decreases with the length of time already spent in detention

on remand.

        A continuation of detention on remand was also called for by

the applicant's personal circumstances, in particular by the fact that

he is a foreigner.  Given the circumstances as they were, the

applicant had no good reason to expose himself to the risk of even a

small residual penalty:  even if he did have ties with Germany, he

was, on his own admission, still fully expecting to be deported very

quickly, with the result that he had already broken off psychologically

any ties he may still have had.  His determination to throw off any

ties he still had was finally confirmed by his departure from the

Federal Republic of Germany immediately after his release, without

waiting for the result of the appeal on points of law against the

judgment of the Duisburg Regional Court of 8 January 1986.

        In examining the way in which the proceedings were conducted,

the following criteria are the relevant ones according to the case-law

of the European Court of Human Rights:

-       how difficult the proceedings are;

-       the kind of treatment accorded to the case, whereby there is

on the one hand a particular imperative existing, especially in cases

of detention on remand, to deal with the matter as quickly as

possible, and on the other hand, a continuing duty to clear up the

case carefully, in particular in favour of the accused;

-       the applicant's behaviour.

        The difficulty of the present case does not lie in its

complexity, but rather in the fact that a number of witnesses from

abroad had to be heard, requiring their summoning through the

time-consuming process of international judicial assistance.  If their

statements had confirmed the alibi of the co-defendant D, they would

also have made a decisive contribution to clearing the applicant's

name, since his incrimination by the co-perpetrator W would no

longer have been credible.  They were therefore indispensable to the

proceedings.

        The investigation proceedings conducted by the Department of

Public Prosecution lasted approximately 5 months.  In view of the great

number of interrogations to be carried out, visits to certain places

and face-to-face meetings of persons involved, this is not excessive.

Nor was the length here the subject of any complaint by the

applicant.  On the contrary: he withdrew his request for a review of

detention on 5 January 1984.

        There was no delay in the main proceedings either.  It was

not appropriate to sever the applicant's proceedings from the rest of

the complex, as he himself wished, since the alibi witnesses named by

D would indirectly have cleared the applicant's name too, and

therefore needed to be heard as a measure in his favour.  The case of

the co-perpetrator W was of a decisively different nature in this

respect, since he had confessed.  The summoning of witnesses from

Yugoslavia was inevitably time-consuming.  It was necessary here to

prepare the summons, translate the request for the serving of the

summons, and establish the competent Yugoslav authorities.  This

required the use of official channels on both the German and the

Yugoslav side.  Nor should one underestimate the time taken for postal

delivery in Yugoslavia.  Lastly, it was also necessary to arrange an

advance of travel expenses and allow sufficient time such that the

journey to the Federal Republic of Germany might be both possible and

reasonably expected of the Yugoslav witnesses.  Given these

difficulties, the dates set down by the Duisburg Regional Court for

the two main hearings were not unduly late.  A further speeding up of

things was not possible.

        In regard to the applicant's behaviour, it should not be

overlooked that, through his persistent denials, he himself caused the

delay.  Whilst he does enjoy, as an accused person, the uncontested

right to make a denial, he must at the same time be aware of and

accept the consequences of this to a certain degree.  In the present

case, he had at all times in his own hand the possibility of

achieving, through a confession, the immediate severance of his

proceedings from those of the others and a swift judgment.

        The Applicant

        The applicant did not reply to the Government's observations

(cf. PROCEEDINGS BEFORE THE COMMISSION).  The following is a

summary of the applicant's submissions made on 8 August 1985, prior to

the registration of the application.

        As to the admissibility

        The applicant has exhausted the domestic remedies available.

He complained of his detention on remand and of its length to the

Federal Constitutional Court which, however, rejected his complaints

on 28 May 1985.  The application to the Commission was submitted on

8 August 1985 which is within a period of six months.  Accordingly the

requirements under Article 26 of the Convention have been fulfilled.

        As to the merits

        According to Article 5 para. 3 of the Convention, everyone

detained on remand is entitled to a trial within a reasonable time or

to release pending trial.  Moreover, as in the case when a person is

arrested, also the continuing detention requires a reasonable

suspicion under Article 5 para. 1 (c) of the Convention.  It is already

questionable whether the decisions of the courts fulfil this

requirement.  According to the investigations carried out there was no

reasonable suspicion that the applicant had committed the offences with

which he is charged.  In any event a reasonable suspicion which could

justify the continuing detention of the applicant was not at hand.

        The length of detention exceeded what could be considered

reasonable within the meaning of Article 5 para. 3 of the Convention.

The period in question started on the day of the issuing of the arrest

warrant, which was 17 August 1983.  It is true that the applicant at

that time was in prison serving another prison sentence.  However, in

such circumstances a prisoner is subjected to all restrictions which

follow from detention on remand.  Accordingly 17 August 1983 should be

considered as the starting point.

        On 8 August 1985 (date of the present submissions) the

applicant had thus been detained on remand for a period of almost 2

years (the applicant was subsequently released on 8 January 1986).

        Whether this period of time is reasonable cannot be examined

in abstracto.  However, as a considerable burden is placed on a person

in detention on remand while his case is dealt with, it appears that a

period of detention exceeding six months would be in conflict also

with Article 6 para. 2 of the Convention.  It should also be noted

that the respondent State as a general rule considers six months as a

maximum period of detention.  An extension should only be allowed when

special difficulties make this necessary.  An extension would not

violate the Convention as such.  However, in cases of an exceptional

extension the interpretation of Article 5 para. 3 should be very

strict.

        Detention on remand should only be allowed where proportionate

and justified by the general interest.  An important element in this

respect is first of all the objective difficulties of the

investigations.  The applicant was a suspect only due to very

questionable statements by his co-accused.  He had, however, always

denied all charges.  The facts of the case were accordingly clear,

which also follows from the fact that the case of the co-accused W was

separated and determined quickly.

        The applicant's requests for a separation of his case,

however, were refused because he denied all charges and because more

witnesses from Yugoslavia should be heard.  It should be noted in

this respect, however, that these witnesses were called to clarify

the situation of the co-accused D whereas they could not make any

statements as to the alleged complicity of the applicant.

        On the other hand the applicant had constantly requested that

his case should proceed.  He did not in this respect do anything which

could possibly extend the length of the proceedings.  Having regard

therefore to the right to  be presumed innocent he had a right to

demand that his case should be dealt with quickly.  On the other hand

if this is not done and if the delays are caused by the authorities,

then the applicant cannot be expected to accept his detention on

remand.  This is even more obvious in a procedural system like that of

the Federal Republic of Germany where it is possible, by separating a

part of the case, to avoid an unreasonable length of the proceedings.

        As a reason for the continuing detention of the applicant the

risk of absconding has been invoked.  This fear originated from an

anonymous letter in which this was indicated.  However, no attempts to

escape have been made, and from anonymous letters it will not be

possible to establish any reasons which could justify the detention on

remand.  Furthermore, a risk of absconding has been assumed due to the

fact that the applicant is a foreigner and that the punishment to be

expected, if convicted, would be considerable.  The applicant,

however, has lived in the Federal Republic of Germany since 1972 where

he cohabited with a woman by whom he has a child.  As regards the

expected punishment, it should be considered that the time spent in

detention is counted towards the actual sentence and the reason to

abscond therefore becomes less as time passes.  The applicant saw no

reason to abscond due to any possible prison sentence, since the time

he had already spent in detention would more or less outweigh it.

        Furthermore it was possible to use less strict measures than

detention on remand in order to prevent his escape.  This, however,

has not been explored.

        In these circumstances, the applicant is of the opinion that

his right to a trial within a reasonable time has not been respected,

in particular due to the fact that the competent authority has

failed to proceed with the case with reasonable speed.

THE LAW

1.      The applicant has first complained that his detention was unjustified.

The Commission has considered this complaint under Article 5 (Art. 5) of the

Convention which secures everyone's rights to liberty and security of person

and which allows a deprivation of liberty only in accordance with a procedure

prescribed by law in the cases enumerated in paragraph 1 of this Article.

These include inter alia the lawful detention of a person after conviction by a

competent court (sub-paragraph a), and the lawful arrest or detention of a

person effected for the purpose of bringing him before the competent legal

authority on reasonable suspicion of having committed an offence or when it is

reasonably considered necessary to prevent his committing an offence or fleeing

after having done so (sub-paragaraph c).

        The applicant's detention prior to the issuing of the arrest

warrant on 17 August 1983 was based on his conviction of incitement

to arson by the Duisburg Regional Court on 25 April 1983.  His

detention on this basis ended on 7 March 1984 when he had served two

thirds of his sentence.

        The applicant has not complained of this title for his

detention, and a complaint in this respect would in any event be

inadmissible due to the six months rule in Article 26 (Art. 26) of the

Convention as the applicant lodged his present application with

the Commission only on 8 August 1985, that is, more than six months

after the end of the above period of detention.  The Commission

accepts that his deprivation of liberty during this period was covered

by the terms of Article 5 para. 1 sub-para. a (Art. 5-1-a).

        There remains the question of justification of the applicant's

subsequent detention which was based on the warrant of arrest of

17 August 1983 and which was upheld throughout the various stages of

the proceedings by numerous decisions by the courts, including the

Federal Constitutional Court, until the applicant's release on

8 January 1986.

        The Commission has considered this complaint under Article 5

para. 1, sub-para. c (Art. 5-1-c) of the Convention but it has found nothing

suggesting that the applicant's detention could not have been

justified under this provision.  The Commission therefore concludes

that the applicant's complaints regarding the justification of his detention,

insofar as they can be considered under Article 5 para. 1 (Art. 5-1), are

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

the Convention.

2.      The applicant has furthermore complained of the length of his detention

and has in this respect referred to Article 5 para. 3 (Art. 5-3) of the

Convention which reads:

   ...

"3.      Everyone arrested or detained in accordance with the

provisions of paragraph 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.

Release may be conditioned by guarantees to appear for

trial. "

   ...

        As regards the period of time, the applicant has maintained

that the starting point should be 17 August 1983 - the day of the

issuing of the arrest warrant.  He was also serving prison sentence

until 7 March 1984 but detention on remand is stricter than detention

whilst serving a prison sentence and he was affected by that.

        The Commission notes in this respect that the applicant has not

submitted any information as to what extent restrictions were placed

on him due to the arrest warrant of 17 August 1983.  Furthermore the

Commission recalls that insofar as restrictions are imposed on a

person already deprived of his liberty, they do not require additional

justification under Article 5 para. 1 (Art. 5-1) of the Convention (cf.

7754/77, Dec. 9.5.77, D.R. 11 p. 216).

        Article 5 para. 3 (Art. 5-3) of the Convention guarantees to everyone

detained under Article 5 para. 1 sub-para. c (Art. 5-1-c) the right to trial

within a reasonable time.  The provision is accordingly only applicable as long

as the applicant's detention is exclusively based on Article 5 para. 1

sub-para. c (Art. 5-1-c).  The Commission recalls that the applicant was

serving a prison sentence when the arrest warrant was issued and this ended on

7 March 1984.  Therefore Article 5 para. 3 (Art. 5-3) does not apply to the

applicant's detention prior to that date as it was not effectively based on the

arrest warrant but covered by the judgment of the Duisburg Regional Court

pronounced on 25 April 1983.  The Commission therefore finds that the starting

point of the applicant's detention on remand, to be considered under Article 5

para. 3 (Art. 5-3) of the Convention, is 8 March 1984.  However, to establish

what time can still be considered as reasonable, it should be taken into

account that the investigation could also take place during the detention based

on Article 5 para. 1 (a) (Art. 5-1-a).

        The applicant's detention on remand ended on 8 January 1986

when he was released from prison.  The respondent Government have,

however, submitted that the time spent in detention on remand after

14 August 1985 should not be taken into consideration since the

applicant did not, in regard to this period, exhaust the domestic

remedies available to him.

        As regards the period after 14 August 1985 and until he was

released on 8 January 1986, it is true that the applicant did not

submit further complaints to the Federal Constitutional Court.

However, the Commission recalls that the applicant had on several

occasions appealed against the decisions as to his continuing

detention and, after 13 March 1985 when the dates for the

continuation of the main hearing had been announced, protested against

these dates.  When the Federal Constitutional Court thus rejected the

applicant's complaint concerning the length of the detention on 28 May

1985 it was an ascertainable fact that the applicant's trial would not

recommence until 9 December 1985.  In these circumstances the

Commission finds that the applicant was not required to continue

constantly to bring this question before the Federal Constitutional

Court.  The Commission therefore considers that also the period from

14 August 1985 to 8 January 1986 is sufficiently covered by his

complaint to the Federal Constitutional Court and its decision of

28 May 1985.  Therefore the Commission finds that it may proceed to

examine the applicant's complaint covering the period until

8 January 1986.

        It follows from the above considerations that the applicant's

detention, to be considered under Article 5 para. 3 (Art. 5-3) of the

Convention, lasted from 8 March 1984 until 8 January 1986;  that is a total of

1 year and 10 months.

        The Commission and the European Court of Human Rights have on

several occasions been called upon to interpret the above provision

(e.g.  Eur.  Court H.R., Wemhoff judgment of 27 June 1968, Series A

no. 7; Neumeister judgment of 27 June 1968, Series A no. 8; Stögmüller

judgment of 10 November 1969, Series A no. 9; Matznetter judgment of

10 November 1969, Series A no. 10; Bonnechaux v.  Switzerland, Comm.

Report 5.12.79, D.R. 18 p. 100 and Schertenleib v.  Switzerland, Comm.

Report 11.12.80, D.R. 23 p. 137).

        In the light of the case-law mentioned above, the Commission

points out in the first place that, in determining in a given case

whether or not the detention of an accused person exceeds a reasonable

limit, it is for the national judicial authorities to seek all the

facts arguing for or against the existence of a genuine requirement of

public interest justifying a departure from the rule of respect for

individual liberty.  The reasonableness of the duration of detention

pending trial can thus not be judged in the abstract and it is

essentially on the basis of the reasons given in the decisions on

applications for release pending trial that the question whether or

not there has been a violation of the Convention has to be determined.

        Furthermore, even if the grounds relating to the public

interest cited by the national judicial authorities are pertinent and

sufficient to justify keeping a person in detention pending trial,

that does not free the authorities from their obligations under the

Convention if they themselves are seen to have prolonged the detention

unreasonably.

        In the present case the Commission recalls that the judicial

authorities, in addition to the suspicion of his having committed an

offence, relied mainly on the risk of absconding when justifying the

continuing detention of the applicant.

        In this respect the Commission refers to the above case-law

according to which it is necessary to examine a whole set of

circumstances - in particular the expectation of a heavy sentence in

the case of conviction or the lack of well-established ties in the

country, giving reason to suppose that the consequences and hazards of

absconding will seem to him a lesser evil than continued imprisonment

- in order to determine whether in a given case there is a risk of a

person absconding.

        In this case the Commission recalls that the applicant is a

foreigner.  Although he had certain ties with the Federal Republic of

Germany, he did not expect that he could remain there after having

served his sentence and he had resigned himself to this.  Furthermore,

according to the prosecution's case, the applicant's alleged offence

made him liable to a severe sentence of imprisonment under the German

Penal Code.  It is hardly possible in such circumstances to rule out

the risk that a person will abscond.  In view of the various

considerations set out above the Commission is satisfied that the

judicial authorities had sufficient reason to fear that the applicant,

once at large, would escape in order to evade justice.

        It thus remains to be examined whether the German authorities

displayed the special diligence required by the Convention in the case

of a detained person.

        The Commission recalls that the proceedings against the

applicant and the co-accused opened on 8 March 1984, which is also the

starting point of the period to be taken into consideration under

Article 5 para. 3 (Art. 5-3) of the Convention.  It turned out that it would be

necessary to summon witnesses from abroad for which reason appropriate

requests were made on 12 June 1984.  The trial commenced on 4 February

1985 but was adjourned in March 1985 in order to summon further

witnesses from abroad.  Having done this, the Regional Court recommenced

the trial in December 1985 and gave judgment on 8 January 1986.

        The Commission acknowledges that, in any criminal case, time

must be allowed for all the routine work that the authorities carry

out and which the documents only reflect indirectly.  The Commission

has noted, however, that the applicant's trial did not start until 11

months after the proceedings opened in the Duisburg Regional Court.

The Commission has furthermore noted that approximately 9 months

passed from the day the trial was adjourned in March until it

recommenced in December 1985.

        The respondent Government have submitted that these delays

were not caused by the complexity of the case but rather by the fact

that a number of witnesses from abroad had to be heard, requiring

their summoning through a time-consuming process of international

judicial assistance.  It was necessary to prepare summonses, translate

the request for the serving of the summons and establish the competent

Yugoslav authorities through official channels.  It was also necessary

to arrange an advance of travel expenses and allow sufficient time in

order to enable the witnesses to appear.

        The applicant has not disputed these facts nor has he

maintained that the time spent for this purpose was excessive as

such.  He alleges, however, that the statements of the witnesses in

question were irrelevant in regard to his alleged acts for which

reason his case could and should have been separated and finished

quickly.

        In this respect the respondent Government have submitted that

it would not have been appropriate to separate the applicant's case

from that of the co-accused since the statements of the witnesses to

be heard would also be material to the outcome of the case brought

against the applicant.

        The Commission finds that a concern for speed cannot dispense

the authorities responsible for the investigation or the conduct of

the trial from taking every measure likely to throw light on the truth

or falsehood of the charges brought against the accused.  This is a

basic element of a fair trial which is secured to everyone under

Article 6 (Art. 6) of the Convention.  The Commission recalls that the

applicant's request to separate his case from that of the co-accused

was examined by the competent authorities.  It was, however, refused

since the statements of the witnessses to be heard were considered of

importance for the outcome also of the applicant's case.  It is

impossible to judge in advance whether such evidence subsequently

turns out to be of little or no value in the case against the accused.

However, although the applicant's case might have been accelerated had

it been severed from that of his co-accused, there is nothing to

suggest to the Commission that such severance would here have been

compatible with the good administration of justice.  It follows that

the Commission cannot criticise the particular decision taken in this

respect.

        As regards the question of hearing witnesses from abroad, the

Commission is disturbed by the delays this caused.  However, the

Commission finds that those delays cannot be imputed to any action or

omission on the part of the German authority, but are the consequence

of a system of mutual assistance as it operates in many countries and

under which the requesting State is dependent on the co-operation of

the State to whom the request has been sent.  The delays which occurred

should therefore be considered as a part of a recognised system which

unfortunately is time-consuming and thus, at least on the basis of the

facts submitted by the parties, as unavoidable.

        In these circumstances the Commission concludes that the

period of the applicant's detention did not exceed what can be

considered reasonable within the meaning of Article 5 para. 3 (Art. 5-3) of the

Convention.  It follows that this part of the application is also

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

the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission         President of the Commission

       (H.C. KRÜGER)                       (C.A. NØRGAARD)