FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34333/02 by Matthias BORGMANN against Germany

The European Court of Human Rights (Fifth Section), sitting on 10 July 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr K. Jungwiert , Mr R. Maruste , Mr J. Borrego Borrego , Mrs R. Jaeger , Mr M. Villiger, judges , and Mr J.S . Phillips , Deputy S ection Registrar ,

Having regard to the above application lodged on 11 September 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Matthias Borgmann, is a German national who was born in 1948 and lives in Berlin . He was represented before the Court by Mr Kaleck, a lawyer practising in Berlin .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 17 March 2000, the Federal Court of Justice issued an arrest warrant in respect of the applicant, who had been employed with the Technical University in Berlin, on the ground that he was strongly suspected of being member of a terrorist group called the Revolutionäre Zelle n and that he had participated in various terrorist attacks during the period between 1985 and 1994. The Revolutionäre Zelle n , which dissolved itself in 1995 , was responsible for at least 186 terrorist attacks. Its regional branch in Berlin , the Berliner Zelle , was responsible for at least forty terrorist attacks, inter alia for attempts to explode the Wedding Social Welfare Office for Asylum Seekers and the victory column in Berlin as well as for attempted assassinations of the chief of the Aliens Office and a presiding judge of the Federal Administrative Court .

On 19 April 2000, the applicant was put on detention on remand. On 30 October 2000, the Federal Prosecutor filed the bill of indictment against the applicant and three other indicted persons for membership of a terrorist organisation and the causing of an explosion in two instances. The bill of indictment was based on various items of evidence, among them the testimony of a privileged prosecution witness ( Kronzeuge ), the results of the preliminary investigations, the preliminary investigation against the above witness for the prosecution and subsequent measures under the Code of Criminal Procedure as well as further seized evidence. The main proceedings regarding the above charges commenced on 22 March 2001, but were subsequently adjourned until 17 May 2001 in order to join them to the proceedings against a further person.

On 12 April 2001, the Berlin Regional Court dismissed the applicant ’ s motion to quash or set aside the arrest warrant of 17 March 2000. It found that there existed a strong suspicion that the applicant had committed the crimes of which he was accused and that he was likely to abscond if released, given the sentence which he risked incurring if found guilty as charged. The Berlin Regional Court noted that the applicant had stable social ties as he had been married since 1997, he was frequently in touch with his daughter who lived in England , and the dismissal from his job at the Technical University in Berlin had not yet become final. However, the Berlin Regional Court took the view that there was concern that the applicant could vanish abroad as he owned with his wife an estate in France where he could travel uncontrolled. His various skills could earn him a living there, and his extradition to Germany could not be taken for granted given the practice of the French authorities. Moreover, the current length of the detention on remand was not disproportionate to the expected prison sentence.

On 23 May 2001, the Federal Court of Justice dismissed the applicant ’ s motion against the decision of the Berlin Regional Court of 12 April 2001. It found that neither the manner in which the proceedings had so far been conducted nor the adjournment until 17 May 2001 had been in violation of the obligation to proceed speedily ( Beschleunigungsgrundsatz ). The reasons given by the Federal Prosecutor for the adjournment were plausible, and the delay of the proceedings was still proportionate to the length of the applicant ’ s detention on remand.

On 20 July 2001, the Berlin Regional Court ordered the continuation of the applicant ’ s detention on remand because both the strong suspicion and the reasons for detention persisted.

On 23 August 2001, the Federal Court of Justice dismissed the applicant ’ s appeal against the decision of the Berlin Regional Court of 20 July 2001. It considered that there persisted strong suspicion which had not been dissipated by the evidence gathered during the main proceedings. The period of one year and four months which the applicant had so far spent in detention on remand had not eliminated the danger of the applicant ’ s absconding, nor had it made that detention disproportionate. Despite the considerable period since the crimes the applicant was charged with had been committed, the applicant ’ s probable sentence in view of their gravity and the fact that he had played a leading role in the terrorist organisation could justify the assumption that there was significant incentive to escape and that the continuation of the detention on remand was proportionate.

On 25 September 2001, the Berlin Regional Court dismissed the applicant ’ s motion to quash, or alternatively to set aside, the arrest warrant. The Berlin Regional Court took the view that there persisted a strong suspicion that the applicant and four other persons had committed the terrorist attacks, which was supported by evidence collected in the main proceedings. It further held that there was still the danger of him absconding and that it was proportionate to continue the detention on remand given the gravity of the charges and the likely prison sentence.

On 20 December 2001 , the Federal Court of Justice dismissed the applicant ’ s appeal against the decision of the Berlin Regional Court of 25 September 2001. It referred to its earlier decision of 23 August 2001 and found that the applicant ’ s continued detention on remand was justified as the circumstances had not significantly changed since then. The Federal Court of Justice noted that it was not objectionable that the Berlin Regional Court had found that there persisted a strong suspicion of the applicant ’ s responsibility for the crimes. The Federal Court of Justice also held that the main proceedings had so far been conducted speedily which was appropriate in view of the applicant ’ s detention on remand. The complexity of the proceedings against several accused persons combined with the difficulty in establishing events planned with conspirative means by a terrorist group in the period between 1985 and 1994 had so far prevented the judgment from being delivered. The assessment of the reason for arrest and the proportionality of the detention on remand had not considerably changed since the Federal Court of Justice ’ s decision of 23 August 2001. The likely sentence of the applicant still exceeded the period of his detention on remand; hence there remained the danger of his absconding. Therefore, the continuation of the detention on remand was proportionate.

On 11 February 2002, the Berlin Regional Court suspended the arrest warrant of 17 March 2000 and ordered the applicant instead to participate in the main proceedings, to submit his passport and not to leave the territory of the Federal Republic of Germany without prior consent by the court. The Berlin Regional Court found that, in view of a serious accident of the applicant ’ s son-in-law who needed intensive care, the danger of the applicant absconding was reduced to such a degree that the less far-reaching measures which had been ordered instead would satisfy the purpose of the detention on remand. The applicant was released on 12 February 2002.

On 4 March 2002, the Federal Constitutional Court refused to admit the applicant ’ s constitutional complaint against the decisions of the Berlin Regional Court of 25 September 2001 and the decision of the Federal Court of Justice of 20 December 2001. The applicant ’ s lawyer received the decision on 11 March 2002.

On 18 March 2004, the Berlin Regional Court convicted the applicant of ringleadership of a terrorist organisation and of causing an explosion on two occasions and sentenced him to four years and three months ’ imprisonment. In determining the sentence, the Berlin Regional Court took into account the length of the detention on remand and the length of the criminal proceedings as mitigating facts. The judgment has since become final.

B. Rele vant domestic law

Section 117 of the Code of Criminal Procedure provides, inter alia :

“ As long as the accused is in detention on remand, he may at any time apply for a court hearing to determine whether the arrest warrant is to be revoked or whether its execution is to be suspended in accordance wi th Section 116. ”

Section 230 of the Code of Criminal Procedure provides, inter alia :

“No trial shall be held in respect of a person who is absent.”

COMPLAINTS

The applicant complained under Article 5 § § 1 (c), 3 and 4 and Article 6 §§ 1, 2 and 3 (d) of the Convention about the allegedly excessive length of his detention on remand.

THE LAW

1. The applicant complained that his detention on remand had lasted an excessively long time . He invoked Article 5 § 3 of the Convention , which provides :

“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.”

The applicant submitted that the domestic courts had erroneously assumed that there was strong suspicion that he was guilty of the crimes he had been charged with and that there was a danger of his absconding. The suspicion had been entirely based on the questionable testimony of a witness for the prosecution. In any event, the detention on remand had become unlawful with the passage of time because the domestic courts had violated the obligation to proceed speedily. The applicant also submitted that the domestic courts, when finding that there was the danger of his absconding, did not address the applicant ’ s arguments that the alleged crimes had been committed a long time ago, that he had no previous convictions, that he had a family and worked in an upper position at university and that he had offered a caution if released on bail. He further complained that the decisions to continue the detention on remand had not been sufficiently reasoned. The national courts had merely used stereotyped formulations and referred to earlier decisions.

The Court notes that the period to be taken into consideration under Article 5 § 3 started with the applicant ’ s arrest on 19 April 2000 and ended with his release on 12 February 2002. The applicant ’ s detention on remand thus lasted one year and almost ten months.

The Court reiterates that the issue of whether a period of detention is reasonable cannot be assessed in abstracto . Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features and on the basis of the reasons given in the domestic decisions and of the well-documented facts mentioned by the applicant in his applications for release (see Chraidi v. Germany , no. 65655/01, § 35 , ECHR 2006-, with further references). Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see W. v. Switzerland , judgment of 26 January 1993, Series A no. 254-A, p. 15, § 30 , and Labita v. Italy [GC], no. 26772/95, § 142, ECHR 2000 ‑ IV , § 152).

The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty (see Chraidi , cited above, § 36). Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see I.A. v. France , judgment of 23 September 1998, Reports 1998-VII, p. 2979, § 102 , and Labita , cited above, § 153).

As regards the grounds for the applicant ’ s continued detention, the Court notes that the German courts reviewed the applicant ’ s continued detention on seven occasions during the period of one year and almost ten months . They advanced two principal reasons for not suspending the arrest warrant, namely that the applicant remained under a strong suspicion of having committed the crimes of which he was accused and the fact that the applicant would be likely to abscond if released, given the sentence which he risked incurring if found guilty as charged. The Court accepts that the reasonable suspicion that the applicant committed the crimes with which he had been charged, being based on cogent evidence, persisted throughout the trial leading to his conviction. As far as the applicant submitted that the bill of indictment had been entirely based on the questionable statement of one prosecution witness, the Court notes that the bill of indictment was also based on other items of evidence. The Court also agrees that the alleged offences were of a serious nature.

Regarding the danger of the applicant ’ s absconding, the Court observes that the possibility of a severe sentence alone is not sufficient after a certain lapse of time to justify continued detention based on the danger of flight (see Wemhoff v. Germany , judgment of 27 June 1968, Series A no. 7, p. 25, § 14, and B. v. Austria , judgment of 28 March 1990, Series A no. 175, p. 16, § 44). In the present case the national courts also relied on other relevant circumstances, including the fact that the applicant owned an estate in France to which he could freely move, and that if he did move to France , subsequent extradition requests might not guarantee his return.

Acc ordingly , the Court is satisfied that a substantial risk of the applicant ’ s absconding persisted throughout his detention and accepts the domestic courts ’ finding that no other measures to secure his presence would have been appropriate. It further observes that, pursuant to section 230 of the Code of Criminal Procedure, no trial can be held in respect of an accused who has absconded and whose whereabouts are unknown . Consequently, the Court concludes that there were relevant and sufficient grounds for the applicant ’ s continued detention.

The Court further notes that, after the applicant ’ s son-in-law was involved in a serious accident, the Berlin Regional Court found that the danger of the applicant ’ s absconding had been sufficiently reduced to justify suspending his detention on remand. In this respect, the Court finds that the decisions of the national courts, while partly referring to earlier decisions, were not merely based on stereotype formulations and indeed took note of changing circumstances during the course of the applicant ’ s detention on remand.

As regards the conduct of the proceedings, the Court notes that the criminal proceedings before the Berlin Regional Court were very complex as they concerned charges against five accused persons for terrorist attacks which dated back to the period between 1985 and 1994. The Federal Prosecutor filed the bill of indictment less than six and a half months and the main proceedings commenced less than twelve months after the applicant ’ s arrest. The proceedings were adjourned at one point for a period of two months for a plausible reason. Given that the merger of the proceedings against all perpetrators was required in order to conduct a proper prosecution and that the competent domestic courts did not have other means to deal with the complexity of the case, the Court finds that the length of the proceedings was inevitable. In the light of the above reasons, it cannot be said that the Berlin Regional Court acted without the necessary special diligence in conducting the proceedings in the applicant ’ s case.

Moreover, the Court also takes note of the fact that the Berlin Regional Court , when determining the applicant ’ s sentence, took into account among the mitigating circumstances the length of the detention on remand. Even after the reduction, the applicant ’ s sentence of four years and three months was still more than twice as long as the period he spent in detention on remand.

In these circumstances, the Court concludes that the length of the applicant ’ s detention cannot be regarded as unreasonable. It follows that this complaint must be re j ected as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complained that his detention on remand violated Article s 5 § 1 (c). The relevant part of that provision provides:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c) 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;...“

Moreover, the applicant complained under Article 6 that the length of his detention on remand violated the presumption of innocence and that he was unable to question the witness for the prosecution during the preliminary investigations and that the possibility to address that witness during the criminal proceedings had not compensated that fault. The relevant parts of Article 6 provide :

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;...”

In the light of the above considerations, the Court sees no reason to doubt that the applicant ’ s detention was compatible with Article 5 § 1 (c). With regard to Article 6 § 2, the Court recalls that it takes into accou nt the presumption of innocence in assessing whether the length of a period of pre-trial detention was justified (see KudÅ‚a v. Poland [GC], no. 30210/96, § 110, ECHR 2000 ‑ XI , and Labita , cited above, § 152). With regard to the remainder of the complaints, to the extent that they fall within its competence, the Court finds that they do not disclose a violation of the applicant ’ s Convention rights.

Accordingly, the above complaints must be likewise rejected as manifestly ill-founded.

For these reasons, the Cou rt unanimously

Declares the application inadmissible.

Stephe n P hillips Pee r Lorenzen Deputy Registrar President