THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 65745/01 by Dževdet DZELILI against Germany

The European Court of Human Rights (Third Section) , sitting on 8 July 2004 as a Chamber composed of

Mr I. Cabral Barreto , President , Mr G. Ress , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mr J. Hedigan , Mrs A. Gyulumyan, judges , and    Mr   V. Berger , Section Registrar , Having regard to the above application lodged on 7 December 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Džetvet Dzelili, is a national of the Former Yugoslav Republic of Macedonia , who was born in 1971. When lodging his application, he was detained in Oldenburg, Germany. He is presently living in Hamburg , Germany. He is represented before the Court by Mr B. Wagner, a lawyer practising in Hamburg. The respondent Government are represented by Mr K. Stoltenberg, Ministerialdirigent .

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

A. Investigation proceedings

On 6 July 1996 the applicant was arrested in Wilhelmshaven.

On 7 July 1996 the Wilhelmshaven District Court issued a warrant of arrest against the applicant on the ground that there was a strong suspicion that he had committed five counts of robbery and one count of robbery in connection with attempted murder.

On 4 November 1996 the Oldenburg Public Prosecutor’s Office charged the applicant with attempted murder, aggravated robbery causing physical injury, and an offence under the Federal Weapons Act.

On 6 December 1996 the Oldenburg Regional Court rejected the applicant’s application to have Mr B. appointed as defence counsel.

On 8 January 1997 the Oldenburg Court of Appeal ordered that the applicant’s detention on remand be continued on the grounds that the strong suspicion against him persisted and that he was likely to abscond if released.

On 14 January 1997 the Oldenburg Court of Appeal dismissed the applicant’s appeal against the decision of 6 December 1996.

B. First trial before the Oldenburg Regional Cour t

On 18 February 1997 the Oldenburg Regional Court admitted the indictment without modifications and decided to open the trial against the applicant and two other accused. The trial started on 14 March 1997.

On 25 June and 26 September 1997 the Oldenburg Regional Court confirmed the arrest warrant of 7 July 1996.

On 29 December 1997 the Oldenburg Regional Court dismissed the applicant’s request to suspend the arrest warrant of 7 July 1996.

On 22 May 1998, after the trial had taken place on fifty-six days with an average duration of ninety minutes, a lay assessor fell ill. As the designated substitute lay assessor had withdrawn previously, also due to illness, the trial had to begin anew.

On 28 May 1998 the Oldenburg Regional Court upheld the original arrest warrant. It found that irrespective of the delays occasioned by the assessors’ illness, the applicant’s continued detention was proportionate given the serious nature of the crimes he was accused of.

C. Second trial before the Oldenburg Regional Court

On 2 June 1998 the trial was reopened with two substitute lay assessors.

On 22 June 1998 the Oldenburg Court of Appeal rejected the applicant’s appeal against the Oldenburg Regional Court’s decision upholding the arrest warrant.

On 1 February 1999, the applicant alleged for the first time that he had been in Tetovo, Macedonia, at the time of the offence.

On 10 February 1999 the Oldenburg Regional Court dismissed the applicant’s request to suspend the execution of the arrest warrant. It decided that investigations in Macedonia with regard to the applicant’s alibi be conducted by way of letters rogatory.

On 25 February 1999 the Oldenburg Regional Court, following the applicant’s appeal, refused to change its decision of 10 February 1999 ( Nichtabhilfe der Beschwerde ) and forwarded the appeal to the Oldenburg Court of Appeal. According to the Regional Court, the applicant’s continued detention on remand was not disproportionate. It reasoned that, if the applicant were convicted, his sentence would exceed the length of the detention on remand so far, due to the serious nature of the crimes and the damages and injuries suffered by the victims. As to the length of the proceedings, the Regional Court noted that there had been debates on whether to disjoin the applicant’s case from those of his co-accused, but the applicant had not seemed interested in speeding up the proceedings.

On 28 June 1999 the Oldenburg Regional Court again dismissed the applicant’s request to suspend the execution of the arrest warrant.

On 12 July 1999 the Oldenburg Regional Court rejected the applicant’s further appeal and confirmed its decision of 28 June.

On 23 July 1999 the Oldenburg Court of Appeal rejected the applicant’s appeal and confirmed the decision of 28 June 1999.

On 10 September 1999 the Oldenburg Regional Court rejected the applicant’s request to dismiss his official defence counsel from office as there was no appearance that the said counsel had not fulfilled his duties. It also found that the loss of trust alleged by the applicant and his counsel had not been substantiated.

On 17 September 1999 the Oldenburg Regional Court was informed by the Public Prosecutor’s Office that the investigations in Macedonia with regard to the applicant’s alibi by way of letters rogatory had not been carried out. The applicant stated that he would adduce one hundred defence witnesses, two at each hearing.

On 27 September 1999 the Oldenburg Regional Court rejected the applicant’s motion for bias.

On 31 January 2000 one of the four Macedonian alibi witnesses who were summoned by the Oldenburg Regional Court via diplomatic channels following the alibi of 1 February 1999, appeared and testified in court.

On 14 June 2000 the Oldenburg Regional Court dismissed the applicant’s request to suspend the execution of the arrest warrant. It found that, if released, the applicant very likely would abscond, given the circumstances of his arrest and the sentence which he risked incurring if found guilty as charged. The Regional Court noted that the applicant was residing illegally in Germany and that an expulsion order had been issued against him. It further observed that he had been about to abscond when he was arrested. The length of the applicant’s detention on remand did not compare to the risk mentioned above. The Regional Court included a detailed account of the trial, explaining the continued conduct of the proceedings, which disclosed that on several occasions witnesses could not be questioned by the court because they either did not come to the hearing or made use of their right not to testify. Furthermore, the applicant and his co-accused had, often later than necessary, filed numerous motions for evidence to be taken. It observed that at the present time, it was not possible to disjoin the applicant’s case from those of the other accused, as they were accused of committing the offences jointly.

On 15 August 2000 the Oldenburg Court of Appeal rejected the applicant’s appeal against the decision of 14 June 2000. It found that the amount of time spent in detention on remand alone did not justify releasing the applicant and that his continued detention was proportionate.

On 26 September 2000 the Oldenburg Regional Court dismissed the applicant’s request to suspend the execution of the arrest warrant on the grounds that contrary to his allegations, suspicion persisted that the applicant had committed the crimes he was accused of. It was still likely that he would abscond if released, especially considering the high prison sentence he risked incurring if found guilty according to the indictment.

On 1 November 2000 the Oldenburg Regional Court refused to change its decision of 26 September and forwarded the applicant’s appeal to the Oldenburg Court of Appeal. It noted that the applicant had caused some of the procedural delays himself by knowingly delaying the naming of the defence witnesses.

On 16 November 2000 the Oldenburg Court of Appeal rejected the applicant’s appeal and confirmed the decision of 26 September 2000.

On 13 December 2000 the applicant lodged a complaint against the decisions of the Oldenburg Regional Court of 26 September 2000 and of the Oldenburg Court of Appeal of 16 November 2000 with the Federal Constitutional Court. He argued that his continued detention on remand, given, inter alia , the excessive duration of the trial before the Oldenburg Regional Court, was unconstitutional.

On 28 December 2000 the Oldenburg Regional Court, after having been informed that twenty-three further Macedonian defence witnesses refused to appear in court, read out the translated protocols of their hearing which had been conducted by way of letters rogatory by Macedonian judges.

On 11 January 2001 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint.

On 20 March 2001 the Oldenburg Regional Court pronounced its judgment, comprising 201 pages, after having held an average of less than four hearings per month with an average duration of less than two and a half hours each. It convicted the applicant of serious robbery and dangerous bodily injury and acquitted him of attempted murder. It sentenced him to eight years’ imprisonment. In fixing the length of the sentence, the Regional Court took into consideration as a mitigating factor the inordinate length of his detention and of the criminal proceedings. It refered in particular to the delay occasioned by the sickness of the lay assessors and the ensuing suspension of proceedings, and stated that this delay was not attributable to the applicant.

D. Appeal proceedings before the Federal Court of Justice

On 22 March 2001 the applicant lodged an appeal on points of law against the Oldenburg Regional Court’s judgment.

On 13 July 2001 the Oldenburg Regional Court dismissed the applicant’s request to suspend the arrest warrant. It argued that the applicant had been sentenced to eight years’ imprisonment and that his detention on remand was not yet disproportionate as he had not yet served two thirds of his prison sentence.

On 7 August 2001 the Oldenburg Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 13 July 2001, holding that the danger that the applicant might abscond if released still persisted.

On 17 August 2001 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that the Oldenburg Regional Court, in its decision of 13 July 2001, and the Oldenburg Court of Appeal, in its decision of 7 August 2001, had refused to suspend the execution of the arrest warrant and had in particular not taken the length of his detention on remand and of the criminal proceedings adequately into consideration.

On 10 September 2001 the Federal Constitutional Court refused to entertain the applicant’s constitutional complaint.

On 12 September 2001 the reasoned judgment of the Oldenburg Regional Court was deposited with its registry.

On 6 November 2001 the Oldenburg Regional Court decided to suspend the execution of the arrest warrant against the applicant.

On 7 November 2001 the applicant was released from prison.

On 8 November 2001 the applicant substantiated his appeal on points of law. He argued, inter alia , that in its decision, the Regional Court had not taken the length of the criminal proceedings adequately into account and had not specified its effects on the sentence.

On 27 November 2001 the Federal Public Prosecutor General sent the case files and his own motions concerning the applicant’s appeal to the Federal Court of Justice.

On 11 September 2003 the Federal Court of Justice, after a hearing, quashed the judgment of the Oldenburg Regional Court in respect of the applicant’s sentence and remitted the case to a different chamber of the Oldenburg Regional Court.

In the reasons of the judgment prepared on 22 October 2003, the Federal Court of Justice found that the duty to proceed expeditiously guaranteed by Article 6 § 1 of the Convention had been violated at least during the first half of the second trial by the Oldenburg Regional Court. It stated that the judges rehearing the case would have to assess in detail the reasons and exact length of these delays as well as further delays contrary to the rule of law which had occurred afterwards. They would then have to fix explicitly the sentence which would have been adequate without the delays in the proceedings and the actual sentence mitigated because of these delays, thereby precisely assessing the amount of compensation granted.

E. New trial before the Oldenburg Regional Court

The case is currently still pending before the Oldenburg Regional Court.

On 13 April 2004 the Oldenburg Regional Court quashed the arrest warrant against the applicant.

COMPLAINTS

The applicant complained under Article 5 §§ 1 and 3 and Article 6 § 1 of the Convention about the length of his detention on remand and of the criminal proceedings.

THE LAW

1. The applicant complained that the length of his detention on remand infringed Article 5 §§ 1 and 3 of the Convention which, in so far as relevant, reads as follows:

“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;  ...

3. 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. Release may be conditioned by guarantees to appear for trial.”

a) The Government contended that the applicant did not exhaust all domestic remedies as required by Article 35 § 1 of the Convention. They took the view that, pursuant to this provision, an application with the Court was to be filed only after all final domestic decisions had been given. They pointed out that the applicant had filed his application with the Court in December 1999, when the Federal Court of Justice had not yet given its judgment and when the applicant had not yet filed his constitutional complaint of 13 December 2000. He therefore did not comply with this requirement.

The applicant disputed this view. He argued that, by lodging constitutional complaints on 13 December 2000 and 17 August 2001, both of which the Federal Constitutional Court refused to entertain, he had exhausted domestic remedies.

The Court recalls that under Article 35 § 1, an applicant is required, in principle, to exhaust the different domestic remedies available to him before he applies to the Court. However, the last stage in the exhaustion of these remedies may be reached after the application has been lodged, but before the Court is called on to pronounce on the issue of admissibility (see, mutatis mutandis , Ringeisen v. Austria , judgment of 16 July 1971, Series A no. 13, p. 38, § 91; Yüksel v. Turkey (dec.), no. 40154/98, 2 December 2003).

The Court notes that, with respect to the length of the applicant’s detention on remand, only his applications to the Oldenburg Regional Court and the Oldenburg Court of Appeal with a view to suspending the execution of the arrest warrant and a subsequent complaint about the continued detention to the Federal Constitutional Court, can be regarded as domestic remedies capable of affording redress in respect of the continued detention. It observes that the applicant lodged his application with the Court on 7 December 1999. On 13 December 2000 and on 17 August 2001, respectively, he lodged a constitutional complaint against the refusal of the Oldenburg Regional Court and the Oldenburg Court of Appeal to suspend the execution of the arrest warrant. The Federal Constitutional Court gave its final decisions, refusing to entertain the applicant’s constitutional complaints, on 11 January 2001 and 10 September 2001 respectively, that is, before the Court has adopted its decision on admissibility.

Therefore, the Court considers that the applicant in this respect has exhausted domestic remedies as required by Article 35 § 1 of the Convention.

b) The Government further maintained that the applicant lost the status of a “victim” within the meaning of Article 34 of the Convention. They pointed out that in its judgment of 11 September 2003, the Federal Court of Justice expressly established and recognised a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings and the undue length of the applicant’s detention on remand. Therefore, the Regional Court would have to mitigate the applicant’s sentence explicitly and measurably. They argued that thereby redress would also be afforded for the length of the applicant’s detention on remand, as the strain put on the applicant in connection with the proceedings, comprising his continued detention, was to be taken into consideration as an independent factor when mitigating the sentence because of the length of the proceedings. They also stated that compensation could be granted by virtue of the rules providing that the entire period of pre-trial detention was to be deducted from the applicant’s prison sentence and that in cases where the length of detention on remand exceeded the length of the sentence, damages could be granted on an equitable basis.

The applicant contested these views. He maintained that even though the Federal Court of Justice found that his detention on remand had lasted an unreasonably long time, national law did not provide for an adequate redress in this respect. He claimed that the mitigation of his sentence was ordered by the Federal Court of Justice only because of the protracted length of the criminal proceedings, irrespective of his continued detention on remand.

In the Court’s view, the issue whether the applicant is deprived of the status of victim within the meaning of Article 34 is closely linked to the one raised with respect to his complaint under Article 5 § 3 as to the length of his detention on remand. It therefore joins this issue to the merits of the application.

c) The Government contended that the length of the applicant’s detention on remand, five years and four months, was reasonable within the meaning of Article 5 § 3.

They submitted that there were substantial and sufficient grounds for the applicant’s continued detention on remand. They argued that the Oldenburg Regional Court and Court of Appeal had rightly found that, throughout the proceedings, the applicant had remained under an increasingly strong suspicion of having committed the crimes he was accused of. The courts’ decisions ordering the applicant’s continued detention were also rightly based on the seriousness of the offences the applicant was accused of and on the assumption that the applicant was likely to abscond if released. Given the serious charges against the applicant, the continued pre-trial detention could not be regarded as disproportionate.

The Government further maintained that the national courts consistently accelerated the proceedings as much as possible. They claimed that the criminal proceedings were very complex, in particular since they necessitated enquiries abroad by way of letters rogatory as well as the questioning of a large number of witnesses, some of whom had to be summoned from outside Germany.

They argued that the delay caused by the need to repeat the initial part of the trial after two lay assessors had fallen ill was unforeseeable and not preventable. The duration of the individual hearings was irrelevant when deciding on whether the proceedings were conducted within a reasonable time. In this context, the Government observed that many of the witnesses summoned did not attend the hearings, with or without permission from the Regional Court, while others made use of their right not to testify. The short duration of some of the hearings could therefore not be attributed to the Regional Court.

In the Government’s view, the delays in the proceedings were mainly attributable to the applicant. They pointed out in particular that the applicant, almost three years after the proceedings had started, produced an alibi which necessitated time-consuming investigations abroad before it proved to be false. In addition to that, he refused to submit the names and addresses of defence witnesses to the Regional Court for a long time, thereby intentionally protracting the proceedings. Throughout the proceedings, he filed numerous motions to take further evidence and repeatedly challenged the judges of the Regional Court for bias.

The applicant disputed this view. He submitted that both before and after the interruption of the proceedings in 1998, the proceedings had been delayed by an insufficient number of hearings per month, each of which was of very short duration.

The Court considers, in the light of the parties’ submissions, that this aspect of the complaint raises serious issues of fact and law under the Convention, the determination of which require an examination of the merits. It concludes therefore that this part of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant considered the length of the criminal proceedings against him excessive and alleged a violation of Article 6 of the Convention, which, in so far as relevant, reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] tribunal ...”

a) The Government contended that the applicant did not exhaust all domestic remedies as required by Article 35 § 1 of the Convention. Their submissions in this respect were the same as those concerning Article 5 § 3 of the Convention.

The applicant disputed this view. He pointed out that he had lodged two complaints with the Federal Constitutional Court, which the latter had refused to entertain. Alternatively, he maintained that, in the exceptional circumstances of the present case in which the German courts appeared to be unwilling to expedite the proceedings still pending, and in order to prevent further damage, the application should be declared admissible before all domestic remedies had been exhausted.

In the Court’s view, the issue whether the applicant has exhausted all effective domestic remedies as required by Article 35 § 1 of the Convention is closely linked to the questions raised with respect to his complaint under Article 6 § 1 of the Convention as to the length of the proceedings. It therefore joins this issue to the merits of the application.

b) The Government further maintained that the applicant had lost the status of a “victim” within the meaning of Article 34 of the Convention also as regards his complaint under Article 6 § 1 of the Convention. Their arguments in this respect were identical with those concerning Article 5 § 3 of the Convention.

The applicant contested this view. He claimed that it was to be feared that after the judgment of the Federal Court of Justice, the Regional Court would only formally apply the principles set out in this decision, without fixing a lower sentence than in its first judgment.

In the Court’s view, the issue whether the applicant is deprived of the status of victim within the meaning of Article 34 of the Convention is closely linked to the questions raised with respect to his complaint under Article 6 § 1 of the Convention as to the length of the proceedings. It therefore joins this issue to the merits of the application.

c) The Government contended that the applicant’s right to a hearing within a reasonable time under Article 6 § 1 of the Convention had not been violated. Their submissions with regard to the complexity of the case and the conduct of the parties in the proceedings at first instance were the same as those concerning Article 5 § 3 of the Convention.

As regards the appeal proceedings, the Government submitted that no delays have been caused by the Regional Court or the Federal Court of Justice. In particular, the long judgment of the Oldenburg Regional Court was reasoned sooner than required by the statutory time-limits.

The applicant contested this view, endorsing his reasons given with respect to Article 5 § 3 of the Convention. He added that neither in the appeal proceedings nor in the proceedings pending before the Oldenburg Regional Court after the remittal of the case did the courts make an effort to expedite the proceedings.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the significance of the case for the applicant, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required. It concludes therefore that this part of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Decides to join to the merits the question whether the applicant has exhausted all domestic remedies as required by Article 35 § 1 of the Convention with respect to his complaint about the length of the proceedings;

Decides to join to the merits the questions whether the applicant has lost his status of victim with respect to his complaints as to the duration of his detention on remand and the length of the proceedings;

Declares the application admissible, without prejudging the merits of the case.

Vincent b erger Ireneu c abral b arreto Registrar President