THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49746/99

     by Zvonko CEVIZOVIC

against Germany

The European Court of Human Rights (Third Section), sitting on 3 April 2003 as a Chamber composed of

Mr I. Cabral Barreto , President , Mr G. Ress , Mr P. Kūris , Mr B. Zupančič , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve , Mr K. Traja, judges ,

and    Mr V. Berger , S ection Registrar ,

Having regard to the above application introduced on 8 March 1999 and registered on 20 July 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Zvonko Cevizovic, is a Croatian national , born in 1966. When lodging his application, he was detained in Oldenburg, Germany. He is presently living in Rogaška Slatina, Slovenia. Originally, the applicant was represented by Mrs Gabriele Braun, a lawyer practising in Strasbourg. He is now represented before the Court by Mr Željko Rajačić, a lawyer practising in Zagreb, Croatia. The respondent Government are represented by Mr Stoltenberg, Ministerialdirigent .

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

On 17 June 1996, the applicant was arrested in Wilhelmshaven.

On 18 June 1996, the Wilhelmshaven District Court issued a warrant of arrest against the applicant on the ground that he was urgently suspected of having committed, with others, robbery connected with attempted murder.

On 4 November 1996, the Oldenburg Public Prosecution charged the applicant with aggravated robbery, grievous physical injury, unauthorised carrying of weapons and attempted murder.

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 and took place on fifty-six days with an average duration of ninety minutes. On 22 May 1998 a lay assessor fell ill. As the additional lay assessor who was supposed to replace him had also fallen sick earlier on, the trial had to begin anew.

On 28 May 1998, after the proceedings had restarted, the Oldenburg Regional Court upheld the original arrest order. 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.

On 2 June 1998, the trial reopened with two additional lay assessors.

On 22 June 1998, the Oldenburg Court of Appeal rejected the applicant's appeal against the arrest warrant.

On 25 March 1999, the Oldenburg Regional Court dismissed the applicant's request to suspend the warrant of arrest of 18 June 1996 on the ground that the applicant remained under urgent suspicion of having committed the crimes that he was accused of.

On 7 May 1999, the Oldenburg Regional Court, upon the applicant's appeal, reconsidered and confirmed its decision of 25 March 1999. It forwarded the appeal to the Oldenburg Court of Appeal. The Regional Court considered that the delay in the trial had been caused by exceptional circumstances such as the difficulty in taking evidence, which required further investigations during the trial, and the illness of a lay assessor as well as the temporary illness of the presiding judge. The strong suspicions against the applicant had not been invalidated during the trial. There was also a certain danger that on being released, the applicant would abscond.

On 1 June 1999, the Oldenburg Court of Appeal confirmed the decision of the lower court, stating that although the applicant had at that point already been in custody for nearly three years, this did not justify his release.

On 9 July 1999, the Federal Constitutional Court refused to entertain the applicant's constitutional complaint.

On 14 June 2000, the Oldenburg Regional Court dismissed the applicant's new request to suspend the warrant of arrest of 18 June 1996 on the ground that the allegedly new evidence submitted by the applicant did not justify such a suspension. It found that if released, the applicant was very likely to 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. 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 proceedings. 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 21 June 2000, following the applicant's appeal, the Oldenburg Regional Court confirmed its original decision.

On 27 June 2000, the Oldenburg Court of Appeal confirmed this decision.

On 10 August 2000, the Federal Constitutional Court refused to entertain the applicant's constitutional complaint.

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

On 20 March 2001, the Oldenburg Regional Court convicted the applicant of attempted murder, aggravated robbery and grievous physical injury as well as of unauthorised carrying of weapons and sentenced him to ten years and six months' imprisonment. In its judgment, the Regional Court took into consideration the length of criminal proceedings, in particular the delays occasioned by the sickness of the lay assessor and the ensuing suspension of proceedings.

On 21 March 2001, the applicant appealed against the Regional Court's decision. In the negotiations that followed between the applicant's legal counsel and the Prosecutor's Office, the latter eventually consented to the applicant's expulsion to his country of origin in lieu serving of a prison sentence in Germany. In exchange for this, and due to the increasing length of his detention on remand, which would continue during appeals proceedings, the applicant agreed to withdraw his appeal.

On 4 April 2001, the applicant withdrew his appeal.

On 28 May 2001, the Prosecutor's Office suspended the further execution of the applicant's prison sentence and agreed to his expulsion to Croatia. A new arrest warrant was issued to the effect that, upon returning to Germany before the year 2026, the applicant would be arrested and imprisoned instantly in order to complete his prison sentence.

On 25 July 2001, the applicant was expelled to Croatia.

COMPLAINTS

The applicant complained under Articles 5 §§ 1 and 3 and 6 § 1 of the Convention about the length of his detention on remand and about the length of the criminal proceedings in general. He considers that, as he had allegedly only participated as an accessory to the robbery, his continued detention was disproportionate.

THE LAW

1. The applicant complained about the length of his detention. He relied on Articles 5 §§ 1 and 3 of the Convention, which, as far as relevant, 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;

...

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.

...”

The Government noted that the wording of Article 5 § 3 did not set an absolute limit for the time spent in detention. They found that during the course of proceedings, it became increasingly likely that the applicant would abscond, as the further accumulation of evidence enhanced the impression that he had committed the crimes he was accused of. It was thus necessary and proportionate, under Article 5 § 1, to order the continuation of the applicant's detention.

The Government submitted that the proceedings had been delayed mainly due to the sickness of both a lay judge and her replacement lay judge in 1998, which made it necessary to rehear all relevant witnesses. These factors were beyond the Regional Court's control. The Government referred to the Regional Court's decisions of 5 June 1998 and 7 May 1999, according to which calling in a single additional judge for the first main hearing had been considered an adequate, even “superfluous” measure. In the same decisions, the Regional Court noted that the applicant and the other accused had prolonged the existing delays by protesting their innocence and attempting to incriminate each other. On top of this, the Regional Court concluded that, as investigations proceeded, they raised further questions, which drew out further the taking and evaluation of evidence.

The Government further submitted that the court proceedings dealt with a large-scale case involving several accused. This complicated and delayed the taking of evidence, in particular as investigations had to be extended to Slovenia and Macedonia and some witnesses had to be summoned from outside Germany.

The Government argued that the Regional Court had attempted to speed up proceedings as far as possible by ordering a second hearing right after the end of the first one. Short delays in December 1997 and January 1998, as well as in July 1998, 1999 and 2000, had to be attributed to the lay judge's sickness and the holidays of the parties' legal counsel, which had caused the proceedings to be interrupted for thirty days.

The Government maintained that the duration of each hearing could not be relevant when deciding on whether proceedings had been conducted within a reasonable amount of 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. The Government added that one of the victims and key witnesses could not be heard before June 1999 due to his unexpected long hospitalisation in Belgrade, Serbia.

The Government agreed that the applicant had the right to avail himself of the defence remedies offered to him under national law. However, he had delayed the conduct of the proceedings by only raising his objections in the course of the proceedings and by requesting the taking of evidence regarding his alibi, which was in no way supported by the evidence hitherto taken. The same was true for his extensive motions to hear further evidence, which would have required international legal assistance.

In this context, the Government also referred to a belated motion to hear evidence submitted by one of the other accused, which caused a considerable delay in proceedings. It had been impossible to disjoin the applicant's proceedings from the main proceedings due to the factual link between the two.

The applicant reiterated his arguments to the effect 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 same witnesses were summoned several times instead of being interviewed in one longer hearing, while special hearings were fixed for experts. The interruption in proceedings could have been avoided if, at their beginning, the Regional Court had appointed two replacement lay judges instead of one.

The applicant denied that the delays in the proceedings were attributable to him, as he already had submitted evidence regarding his alibi in November 1997. Nor were his motions to hear further evidence responsible for the slowness of the proceedings: of the thirty-nine such motions submitted to the Regional Court between 1998 and August 2000, five were accepted and eight were rejected. Twenty-two of the applicant's motions to hear further evidence had not been decided on at this point.

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 complained under Article 6 of the Convention about the excessive length of court proceedings before the Oldenburg Regional Court.

Article 6, as far as relevant, reads as follows:

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

...”

The Government's submissions with regard to this question are the same as those regarding the alleged violation of Article 5 § 3 of the Convention.

The Court notes that the criminal proceedings before the Oldenburg Regional Court ended on 20 March 2001. The applicant lodged an appeal against this decision which he later withdrew.

Regarding the question of whether he has thereby exhausted domestic remedies according to Article 35 § 1, the Court notes that the Government have not raised this argument in the present case. It is thus assumed that the applicant's complaint under Article 6 § 1 of the Convention is in compliance with Article 35 § 1.

However, the Court considers that the applicant's complaint under Article 6 does not raise any separate issue and thus must be examined further together with his submissions under Article 5 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits .

Vincent Berger Ireneu C abral Barreto Registrar President