AS TO THE ADMISSIBILITY OF

Application No. 11755/85

by Walter STOCKE

against the Federal Republic of Germany

        The European Commission of Human Rights sitting in private on

9 July 1987, the following members being present:

                    MM. C.A. NØRGAARD, President

                        G. SPERDUTI

                        J.A. FROWEIN

                        F. ERMACORA

                        E. BUSUTTIL

                        G. JÖRUNDSSON

                        A. WEITZEL

                        J.C. SOYER

                        H. DANELIUS

                        G. BATLINER

                        H. VANDENBERGHE

                   Mrs.  G.H. THUNE

                   Sir  Basil HALL

                   Mr.  F. MARTINEZ

                   Mr.  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 20 September 1985

by Walter STOCKE against the Federal Republic of Germany and registered

on 23 September 1985 under file No. 11755/85;

        Having regard to:

-       the first report of March 1986 provided for in Rule 40 of the

        Rules of Procedure of the Commission;

-       the Commission's decision of 9 May 1986 to bring the

        application to the notice of the respondent Government and

        invite them to submit written observations on its admissibility

        and merits;

-       the observations submitted by the respondent Government on

        21 July 1986 and the observations in reply submitted by the

        applicant on 14 October 1986;

-       the second report of November 1986 provided for in Rule 40 of

        the Commission's Rules of Procedure;

-       the Commission's decision of 4 March 1987 to invite the

        parties to a hearing on the admissibility and merits of the

        application;

-       the submissions made by the parties at the hearing on

        9 July 1987;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts, which do not appear to be in dispute between the

parties, may be summarised as follows:

        The applicant is a German citizen, born in 1926.  When lodging

his application with the Commission, he was detained in prison at

Saarbrücken.  Before the Commission he is represented by

Mr.  T. Vogler, a law professor at Giessen.

        In June 1975, subsequent to the bankruptcy of his construction

firm, criminal investigations were instituted against the applicant on

the suspicion of fraud and fraudulent conversion.  In July 1975

investigations were also started on the suspicion that the applicant

had committed tax offences.  On 25 March 1976 the Ludwigshafen

District Court (Amtsgericht), in the latter proceedings concerning tax

offences, issued a warrant of arrest against the applicant.  From

26 March until 9 July 1976 he was in detention on remand.  The

execution of the warrant of arrest was then suspended.  As the

applicant did not respect the conditions under which he had been

released the execution of the warrant of arrest was again ordered in

November 1976.  To avoid his arrest the applicant absconded abroad.

He later lived in Strasbourg, France.

        In October 1978 the applicant was informed by his former

colleague Mr.  W that a certain Mr.  K who, according to the applicant,

collaborated from the very beginning with the German authorities was

organising a project to build a hotel in Spain.  Subsequently there was

a meeting in Luxembourg between the applicant and K as well as further

persons supposed to participate in the project.

        Two weeks later, a meeting was arranged for 7 November 1978 in

Strasbourg to conduct negotiations with an interested party.  However,

on 7 November 1978 the latter had not come to Strasbourg.  K stated

that the person concerned was in Luxembourg and that a private

aeroplane was ready to fly there.  The applicant, together with K,

boarded the aeroplane, which belonged to a charter company, had German

registration plates and was piloted by M and ME.  At 19.50 hours the

aeroplane made a stop-over at Saarbrücken- Ensheim airport.  The

pilots indicated that the air extraction duct of the engine had become

covered with ice.  Air traffic control in Saarbrücken had been

informed and had therefore alerted the fire brigade at the airport.

        The applicant was arrested by the Saarbrücken Police, which

assisted the Kaiserslautern Police, at the airport on the basis of the

arrest of warrant issued by the Ludwigshafen District Court in March

1976.  The applicant was then detained on remand.

        On 2 April 1979 the Kaiserslautern Public Prosecutor's Office

(Staatsanwaltschaft) preferred the indictment against the applicant.

        On 15 May 1979 the applicant laid information against K for

deprivation of liberty and subsequently also against several

policemen and unknown persons.  The Zweibrücken Public Prosecutor's

Office instituted preliminary investigations against K, the pilots M

and ME as well as the policemen involved in the applicant's arrest.

On 24 September 1979 the Prosecutor's Office decided to discontinue

the investigation proceedings.  The facts alleged by the applicant

were not considered to constitute a deprivation of liberty.

        On 25 October 1979 the applicant's trial opened before the

Kaiserslautern Regional Court (Landgericht).

        In September, October and November 1979 the public prosecutors

from the Kaiserslautern Public Prosecutor's Office all declared in

official statements that they had only learned of the applicant's

return from France on 8 November 1978 after the applicant had already

been taken into custody on remand.  In official statements dated

October 1979 the police officers from the Ludwigshafen Police declared

that the Kaiserslautern Police had requested their assistance to arrest

the applicant on the morning of 7 November 1979 and that the police

officer Kl had, on request, declared to act in accordance with the

competent Public Prosecutor's Office.

        On 5 February 1980 the Zweibrücken Court of Appeal (Oberlandes-

gericht), upon the applicant's appeal concerning the decision of

24 September 1979 to discontinue investigation proceedings, ordered

the Zweibrücken Director of Public Prosecutions (Generalstaatsanwalt)

to investigate the matter further.  In February and March 1981 the

police officers Kl, H and KE were heard on the charges against them.

They all refused to give evidence.

        On 17 March 1981 the Kaiserslautern Regional Court, in the

criminal proceedings against the applicant, ordered his continued

detention on remand.  The applicant's appeal was dismissed by the

Zweibrücken Court of Appeal on 16 April 1981.  The applicant lodged a

constitutional complaint (Verfassungsbeschwerde) relating to his

continued detention on remand and to the pending criminal proceedings

against him.  He submitted that the German police had unlawfully

brought him from France to the Federal Republic of Germany and that

this barred his prosecution.  On 26 August 1981 the Federal

Constitutional Court (Bundesverfassungsgericht) refused to admit the

applicant's constitutional complaint on the ground that it offered no

prospect of success.  The Court found in particular that the applicant

could only complain of the trial after a final decision had been taken

in these criminal proceedings.  As regards the applicant's complaint

of his continued detention on remand the Court observed that the

applicant's allegations concerning his return from France to the

Federal Republic of Germany had not yet been examined by the trial

court.

        On 23 September 1981 the Zweibrücken Director of Public

Prosecution dismissed the applicant's further request of May 1981 to

proceed against several public prosecutors and police officers

involved in his return from France.  The Director assumed from the

concurring statements of the public prosecutors concerned that these

persons were not aware of any intention to abduct the applicant from

abroad to Germany by aeroplane.  He found no reason to doubt the

correctness of these official statements.

        On 4 February 1982 the applicant was convicted by the

Kaiserslautern Regional Court of fraud in two cases one of which

concomitant with incitement to breach of trust, and of tax evasion

(Steuerhinterziehung) in three cases, each concomitant with a

violation of the statutory obligation to keep books (Buchführungs-

pflicht).  He was sentenced to six years' imprisonment.

        The judgment, comprising 399 pages, states, inter alia, that

contrary to the applicant's arguments the prosecution was not barred

by the alleged fact that the applicant was lured to the Federal

Republic by a police conspiracy.  It is pointed out that the applicant

was arrested on the territory of the Federal Republic on the authority

of a valid and lawful warrant of arrest.  In so far as the applicant

had been lured into the Federal Republic this "private kidnapping"

(private Entführung) did not render his arrest unlawful as the

subsequent approval by the authorities of such kidnapping was not an

unlawful act contrary to principles of international law.

        The Court further pointed out that contrary to the applicant's

allegations the Public Prosecutor's Office in Kaiserslautern had,

according to official statements (dienstliche Erklärungen) made by its

Director, its Head of Division and the Prosecutor dealing with the

case, neither instigated the alleged kidnapping nor known of it.  The

Court added that it did not consider it necessary to investigate the

matter further because even assuming the applicant's allegation was

true that K had acted under the instruction of the German police

authorities and had carried out the kidnapping with their support this

would not affect the jurisdiction of the German court.  If the

French-German extradition treaty or French territorial sovereignty had

been violated, this was a matter of international law affecting the

rights of a State but not the rights of the individual concerned.  It

would have been the right of France to protest against the alleged

violation and to request reparation for it.  However, France had not

done so.  On the contrary the Strasbourg Public Prosecutor (procureur

de la République) discontinued proceedings instituted at the

applicant's request (Anzeige) stating that no punishable act had been

committed on French territory (... das Vorliegen einer strafbaren

Handlung auf französischem Boden verneint und die Anzeige zu den Akten

gelegt).  On the same day the applicant was released from detention on

remand.

        On 10 November 1982 the Zweibrücken Public Prosecutor's Office

preferred an indictment against the two pilots, M and ME, as well as

against three police officers - Kl, H and KE - for the offence of

being an accessory to unlawful deprivation of liberty.   The criminal

proceedings against K, who was already under investigation concerning

several offences of fraud, were provisionally discontinued on the

ground that K had gone abroad and the Austrian Federal Ministry of

Justice, in a letter of 12 August 1982, had refused extradition in

this respect.  K was in detention on remand from August 1982 until

July 1983.  The warrant of arrest was then suspended and, inter alia,

a duty of reporting imposed.  However, K disappeared.  An international

warrant of arrest was issued in connection with the proceedings

concerning the charges of fraud.

        On 26 July 1983 the Frankenthal Regional Court decided not to

open main proceedings against the five accused, M, ME, KI, H and KE,

on the ground that there was no sufficient suspicion.

        The respective complaints of the Public Prosecutor's Office

and the applicant were dismissed by the Zweibrücken Court of Appeal on

6 April 1984.  The Court found that the pilots would have to be

acquitted because their defence that they were not aware of K's plan

could not be refuted.  It further stated that any suspicion that the

accused police officers might have committed an offence was not

sufficient for a conviction.  The Court considered that the witness Ku

who had alleged that there had been collaboration between K and the

police in order to arrange the applicant's return from abroad was not

credible.  It assumed that Ku, who had himself been a police informer,

wanted to take his revenge.  In the circumstances of the case it was

possible that the three officers had been informed by K that the

applicant would be landing at Saarbrücken airport on 7 November 1978

and could be apprehended there.  However, it could not be shown that

they knew that the applicant was to be tricked into boarding the

aeroplane and thus be trapped and brought to Saarbrücken airport

against his will.

        On 25 July 1984 the Federal Court of Justice (Bundesgerichtshof),

in proceedings concerning the applicant's appeal on points of law

(Revision) against the Regional Court's judgment of 4 February 1982,

had the witness Ku again examined with regard to the applicant's

allegation that his return to the Federal Republic of Germany was

performed by a police conspiracy.  On 2 August 1984 the Court rejected

the applicant's appeal on points of law.  It found in particular that

the applicant's allegation that he had been kidnapped on French

territory did not bar his criminal prosecution in the Federal Republic

of Germany.  The Court first pointed out that the applicant did not

belong to the circle of persons enjoying immunity.  The jurisdiction of

German courts would only have been put in question had the French

Republic requested reparation for an alleged violation of its

territorial sovereignty or for an alleged violation of the

French-German extradition treaty.  However, although the competent

French authorities had been informed about the applicant's allegations

by his counsel no such requests had been formulated.

        On 17 July 1985 a group of three judges of the Federal

Constitutional Court (Bundesverfassungsgericht) rejected as offering

no prospects of success the applicant's constitutional complaint

against the aforementioned decisions by the criminal courts.  In its

decision the Constitutional Court stated inter alia that there existed

no general rule in international law according to which prosecution of

a person was barred in a State to whose territory the person concerned

had been taken in violation of the territorial sovereignty of another

State.  Citing international case law (namely: U.S. Court of Appeal,

8.1.75, U.S. ex rel Lujan v.  Gengler, AJIL 69 <1975>, p. 895 et seq.;

Jerusalem District Court, 15.12.61, Eichmann case, ILR 36 <1968>, p.

57 et seq.;  U.S. Supreme Court, Ker v.  Illinois, 119 US 436 <1886>)

the Constitutional Court stated that according to international

practice courts would in general only refuse to assume jurisdiction in

case of a kidnapped accused if another State had protested against the

kidnapping and had requested the return of the accused.  Even though

there also existed decisions expressing the opinion that the

kidnapping of an accused could bar prosecution in the State the

kidnapped person has been taken to there was no established practice

of the like in international law.

Furthermore there existed no general rule in international law

according to which prosecution of a person was barred because

that person had been taken to the prosecuting State in violation of an

extradition treaty with another State.

        The Federal Constitutional Court further stated that although

the applicant had unsuccessfully laid charges of kidnapping the

Federal Court nevertheless had also dealt with and correctly denied

that prosecution against the applicant had to be considered barred on

the assumption that his kidnapping involved the criminal

responsibility of German public officials.  So far a bar to

prosecution had been considered only in cases of inordinate length of

proceedings and of incitement by an agent provocateur to commit an

offence.  Even if kidnapping was likewise to be considered as a

possible bar to prosecution this could be assumed only in exceptional

cases but not in the applicant's case.  Even assuming that the

applicant had been taken to the Federal Republic by subterfuge and not

by physical force.  He had been arrested by the German police on

German and not foreign territory.  His arrest had been based on a

lawful and valid warrant of arrest.  Any involvement of public

officials in the alleged kidnapping related, according to the findings

of the Public Prosecutor, only to unauthorised activities of lower

police officers not involving responsibility of superior authorities.

In these circumstances there was nothing which would have barred the

proceedings against the applicant.

        Finally the Constitutional Court pointed out that the

applicant had had no reason to trust that in France he was safe from

prosecution in the Federal Republic because his extradition was,

despite the fact that the main charges against him were of tax law

character, not excluded from the beginning.

        The applicant served the remaining part of two thirds of his

sentence of imprisonment from 10 June to 6 December 1985, the further

third was suspended on probation.

COMPLAINTS

        The applicant considers that, in view of the manner in which

he was brought from France to the Federal Republic of Germany, his

arrest and subsequent imprisonment constituted unlawful arrest and

detention in breach of Article 5 para. 1 of the Convention.

Furthermore he complains under Article 6 para. 1 of the Convention

that the trial against him was unfair on the ground that the German

courts did not consider his kidnapping as a bar to his prosecution and

conviction in the Federal Republic of Germany.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 20 September 1985 and

registered on 23 September 1985.

        On 9 May 1986 the Commission decided to invite the respondent

Government to present observations on the admissibility and merits of

the application.  The Government's observations dated 21 July 1986

were received on 24 July 1986.  The applicant submitted his reply,

after an extension of the time-limit, on 9 October 1986.

        On 4 March 1987 the Commission decided to invite the parties

to a hearing on the admissibility and merits of the application.

        At the hearing which was held on 9 July 1987 the parties were

represented as follows:

The respondent Government

Mrs.  Irene Maier        Ministerialdirigentin, Federal Ministry of

                        Justice, Agent

Mr.  Heinrich Gauf       Generalstaatsanwalt, Directorate of Public

                        Prosecutions of Zweibrücken, Adviser

Mr.  Jens Meyer-Ladewig  Ministerialrat, Federal Ministry of Justice,

                        Adviser

The Applicant

Mr.  Theo Vogler         Professor, Counsel

The applicant was also present.

SUBMISSIONS OF THE PARTIES

A.      The respondent Government

I.      As to the facts

        The respondent Government submit that after the applicant

absconded abroad the competent German authorities did not know his

whereabouts.  On 3 November 1977 the Kaiserslautern Public

Prosecutor's Office asked the Federal Office for Criminal

Investigations (Bundeskriminalamt) for an international search.  The

Prosecutor's Office submitted that the applicant was presumably in

Switzerland and occasionally in France.  Having regard to the relevant

laws on extradition the international search should be limited to

France.  The Government observe that, according to the Extradition

Treaty between the Federal Republic of Germany and France, extradition

of a person charged with tax offences is possible insofar as the

Governments agree in the case concerned.

        On 27 October 1978 the Kaiserslautern Public Prosecutor's

Office renewed its request for an international search.

        The Government maintain that it is doubtful and, in any case,

not proved that officers of the Ludwigshafen Police or public

prosecutors were involved in K's plan and the action taken to bring

the applicant back to the Federal Republic of Germany.  The

Ludwigshafen Police had only on the morning of 7 November 1978

received a telephone call from K that the applicant would arrive in

Saarbrücken during the day.  They were not informed about how and from

where the applicant would come.  In a second telephone call K informed

the police that the applicant could be found in the evening at the

Saarbrücken airport.  The police officers Kl, H and KE then asked the

Saarbrücken Police for assistance and went to Saarbrücken to

participate in the arrest.  The Ludwigshafen Public Prosecutor's

Office was only informed about the applicant's arrest on the morning

of 8 November 1978.

II.     As to Article 26 of the Convention (six months' rule)

        In the Government's view the applicant's complaint that his

arrest on 7 November 1978 violated Article 5 para. 1 (c) of the

Convention is inadmissible because it was submitted out of time.  The

applicant should have submitted this complaint within the six months'

time-limit under Article 26 - running from the date of the decision by

which his custody complaint was dismissed.  The Government consider

that, although in fact the question of the applicant's abduction was

of relevance in the further criminal proceedings on the merits, he

could, during his detention on remand, not be sure that the issue

would be dealt with in the later proceedings.  The Government

furthermore contend that even if in view of the continuing effect of

this arrest the release from custody on remand on 4 February 1982 is

considered as relevant for the time-limit (No. 8130/78, Eckle v. the

Federal Republic of Germany, Dec. 10.5.79, section V 3) the complaint

contained in the application of 20 September 1985 was introduced out

of time.

III.    As to Article 5 para. 1 of the Convention

        The Government contend that the applicant was lawfully

arrested and detained in conformity with Article 5 para. 1 (c) of the

Convention.

        The applicant was arrested by German police officers on German

territory on the basis of a valid judicial warrant of arrest "for the

purpose of bringing him before the competent legal authority" because

there was "reasonable suspicion" that he had committed an "offence".

This suspicion was corroborated by his conviction.  Furthermore the

detention was justified on the ground that the applicant had to be

prevented from fleeing abroad again.

        The applicant's arrest and detention was also "lawful" and "in

accordance with a procedure prescribed by law" within the meaning of

Article 5 para. 1 of the Convention.

        The lawfulness of the arrest was not affected by the facts

alleged by the applicant, namely the "abduction" organised on behalf

of, or in collaboration with, the police, as these allegations have

not been proved during the domestic investigations conducted against

persons accused of unlawful deprivation of liberty.  The Government

consider that the Commission is bound to follow these findings.  The

principle of presumption of innocence would be violated if the

applicant's allegations were to be held against those involved in the

supposed "abduction" without their guilt being established according

to the law.

        The Government further submit that even if the alleged

abduction had taken place both the conduct of criminal proceedings

against the applicant and his detention were lawful.  Under German law

criminal proceedings are permissible against a person who has been

abducted to the Federal Republic of Germany contrary to international

law provided that the foreign State whose sovereign rights have been

violated does not demand that the person abducted be returned to that

State.

        The Government refer to the Commission's case-law according to

which the question of the "lawfulness" of detention under Article 5

para. 1 of the Convention is not determined solely and definitively in

terms of domestic law.  On the contrary, a certain supervisory

function remains with the organs of the Convention to the extent that

they examine whether or not domestic law has been applied in an

arbitrary manner (No. 10689/83, Dec. 4.7.84) or whether the criteria

applied by the domestic courts in assessing the lawfulness were in

conformity with the basic principles of the Convention law (No.

10893/84, Dec. 2.12.85).

        The Government point out that the German law was not

arbitrarily applied in the present case.  The legal view that criminal

proceedings could be conducted against a person abducted from abroad

contrary to international law was supported by the Kaiserslautern

Regional Court, the Federal Court of Justice and the Federal

Constitutional Court with convincing reasons.  It follows in

particular from the decision of the Federal Constitutional Court that

the view taken by the German courts also corresponds to international

standards according to which extradition treaties do not entail

individual rights.  It is true that there are isolated judgments and

scholarly opinions that deny the abducting state - in a case where

there has been an abduction contrary to international law - the right

to conduct criminal proceedings against the person who has been

abducted.  However, this practice is not sufficiently widespread to be

considered either as an established international practice restricting

State jurisdiction or as a rule requiring the termination of criminal

proceedings against a person abducted in a manner contrary to

international law.  Moreover the special guarantees of the Convention

concerning criminal proceedings are intended to protect every innocent

person, but they should not provide and are not intended to provide

the criminal offender with a loophole to avoid his responsibility.

IV.     As to Article 6 para. 1 of the Convention

        The Government maintain that a violation of the principle of

fair trial embodied in Article 6 is excluded for the very reason that

the guarantees under Article 6 only apply to court proceedings and not

to police activities preceding the arrest of a criminal offender on

the run.  The circumstances of the applicant's return could not affect

the fairness of his trial.  As the Kaiserslautern Regional Court, the

Federal Court of Justice and the Federal Constitutional Court have

unanimously found, the circumstances of the applicant's arrest in

Saarbrücken on 7 November 1978 did not constitute a procedural bar to

criminal proceedings against the applicant.

V.      Conclusion

        The Government request the Commission to declare inadmissible

the complaint under Article 5 para. 1 (c) of the Convention on the

ground that it was submitted out of time; and to declare the remainder

of the complaints to be inadmissible as being manifestly ill-founded

(Article 27 para. 2 of the Convention).

B.      The Applicant

I.      As to the facts

        The applicant points out that K collaborated from the

beginning with the German police.  Already at the first meeting in

Luxembourg police officers, who pretended to be architects, had been

present.  These persons were probably the officers Kl, H and KE.

        Furthermore he submits that on 7 November 1978 he had

requested that the territory of the Federal Republic of Germany should

not be overflown.  The pretended engine defect of the aeroplane

constituted part of the pre-established plan to bring him back to the

Federal Republic of Germany.  In fact, having regard to the type of

the aeroplane used, the pretended defect of the engine could not have

occurred.

        The applicant points out that on the national level he did not

succeed in proving that national authorities were involved in his

abduction from France to the Federal Republic of Germany on the ground

that the accused policemen made use of their right not to give

evidence in order not to incriminate themselves.  Certain public

prosecutors, who were dealing with the proceedings against him, had

not been heard.  K had not even been examined as a witness although he

could have confirmed that he had collaborated with the police.  In

this respect the applicant refers to correspondence between K and the

police officer Kl as well as a public prosecutor in which K admitted

that there was a police conspiracy.

        The applicant does not agree with the Government's submission

that the Commission would be bound by the findings of national courts

or that the principle of presumption of innocence would exclude an

independent establishment of the facts by the Commission.

II.     As to Article 26 of the Convention

        The applicant submits that the complaints as regards Article 5

para. 1 (a) and (c) of the Convention are based on a unique set of

facts which cannot be separated.

III.    As to Article 5 para. 1 of the Convention

        The applicant disagrees with the Government as to the

lawfulness of his arrest.  He emphasises that rules of international

law were violated in that he was arrested in breach of the territorial

sovereignty of another State.  The applicant considers that the

domestic warrant of arrest could not render his abduction from France

lawful.  This warrant of arrest was, therefore, not lawfully executed

in a procedure prescribed by law.  The German authorities should have,

in accordance with the rule of law, taken resort to the international

law on extradition.

IV.     As to Article 6 para. 1 of the Convention

        The applicant disagrees with the German courts' reasoning on a

possible violation of the French territorial sovereignty and its legal

consequences as a procedural impediment to prosecution.  He considers

that the main issue under Article 6 para. 1 of the Convention is,

whether or not criminal proceedings can still be regarded as fair if

the pre-condition to conduct these proceedings, i.e. the accused's

presence, was brought about by an unlawful act.  The unlawful abduction

taints the whole criminal proceedings and renders them unfair.  The

injustice committed by a State illegally obtaining the arrest of a

person could only be redressed by terminating the criminal proceedings

and releasing the person.

THE LAW

1.      The applicant complains that his arrest and subsequent

detention were unlawful and not in accordance with a procedure

prescribed by law within the meaning of Article 5 para. 1 (Art. 5-1)

of the Convention.  He also considers that, as a consequence of his

unlawful arrest, his right to a fair hearing under Article 6 para. 1

(Art. 6-1) of the Convention was violated in the criminal proceedings

against him.

        Article 5 para. 1 (Art. 5-1) of the Conventions states, inter alia:

        "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:

        a)  the lawful detention of a person after conviction by a

        competent court;

        ...

        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; ... "

        Article 6 para. 1 (Art. 6-1) of the Convention reads, inter alia:

        "In the determination of ... any criminal charge against

        him, everyone is entitled to a fair and public hearing ... "

2.      The respondent Government consider the applicant's complaint,

under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention, concerning

his arrest and subsequent detention on remand as inadmissible under

Article 26 (Art. 26) of the Convention on the ground that it was

submitted out of time.  In their view the applicant should have

submitted an application in this respect within the time-limit of six

months which started at the date when his appeal against detention on

remand was dismissed.  The Government submit that, although in fact

the question of the applicant's alleged abduction was of relevance in

the further criminal proceedings on the merits, he could, during his

detention on remand not be sure that the issue would be dealt with in

the later proceedings.  As the latest date for the beginning of the

six months' period the Government consider the applicant's release

from detention on remand on 4 February 1982.

        It is true that under Article 26 (Art. 26) of the Convention the

Commission may only deal with a matter after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law, and within a period of six months from the date on

which the final decision was taken.

        The Commission notes that the applicant's appeal against the

decision of the Kaiserslautern Regional Court of 17 March 1981

concerning his detention on remand was dismissed by the Zweibrücken

Court of Appeal on 16 April 1981.  On 26 August 1981 the Federal

Constitutional Court refused to admit his constitutional complaint

concerning the continuation of his detention on remand.

        However, the Commission finds that the applicant could not be

expected to lodge an application with the Commission within six months

after the date of that decision.  The Commission notes that the trial

against the applicant before the Kaiserslautern Regional Court had

started on 25 October 1979 and - as the trial court judgment and the

further court decisions on the applicant's appeal on points of law and

his second constitutional complaint show - the German courts were, in

the criminal proceedings on the merits, required to consider the legal

consequences of the applicant's alleged abduction for prosecution and

conviction.  On 25 July 1984 the Federal Court of Justice, in the

proceedings concerning the applicant's appeal on points of law,

ordered the taking of evidence on the applicant's allegation that

German authorities had been involved in his return from France and

heard K as witness.  A court decision in the criminal proceedings on

the merits which would have accepted that the alleged abduction

created a procedural impediment for the prosecution could also have

affected the lawfulness of the applicant's detention on remand.

Furthermore the Federal Constitutional Court, in its decision of

26 August 1981 on the applicant's first constitutional complaint,

stated that the trial court had "not yet" decided on the facts and the

legal consequences of the applicant's allegations concerning his

abduction from France.  The applicant could thus assume that he should

pursue this issue in the main criminal proceedings pending before the

Kaiserslautern Regional Court since October 1979.

        In these circumstances the Commission finds that the Federal

Constitutional Court's decision of 17 July 1985 must be considered as

the final decision also with regard to the applicant's complaint

concerning his alleged abduction from France.  The applicant, having

lodged the application on 20 September 1985, has, therefore, observed

the six months' rule under Article 26 (Art. 26) of the Convention.

3.      The Government further submit that the applicant was lawfully

arrested and detained in accordance with Article 5 para. 1 (Art. 5-1) of the

Convention.  They contest the applicant's allegations of a police

conspiracy to effect his return to the Federal Republic of Germany and

point out that these allegations were not proved in the domestic

investigation proceedings.  Moreover, the Government state that it is

permissible to conduct criminal proceedings against a person who was

allegedly abducted to the Federal Republic of Germany contrary to

international law on condition that the foreign State whose sovereign

rights were violated does not request that the person abducted be

surrendered.  As regards Article 6 para. 1 (Art. 6-1) of the Convention the

Government contend that the principle of fair trial only applies to

court proceedings and is not affected by police activities preceding

the arrest of a criminal offender.

4.      The Commission, having made a preliminary examination

of the applicant's complaints, finds that they cannot be declared

manifestly ill-founded on the grounds invoked by the Government

without further investigation into the facts.  The application raises

difficult issues of fact and law, in particular under Article 5 para.

1 (c) (Art. 5-1-c) of the Convention, which can only be determined by an

examination of the merits of the case.

        No other grounds for inadmissibility having been established,

the application must, therefore, be declared admissible.

        For these reasons, the Commission,

        without in any way prejudging the merits,

        DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Commission                President of the Commission

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