FIFTH SECTION

Applications nos 8824/09 and 42836/12 Boutros Yaacoub EL KHOURY against Germany lodged on 13 February 2009 and 3 July 2012 respectively

STATEMENT OF FACTS

The applicant, Mr Boutros Yaacoub El-Khoury, is a Lebanese national, who was born in 1977. When lodging his applications he was detained in Berlin Moabit prison. As regards the first application (no. 8824/09) he is represented before the Court by Mr S. Scharmer and concerning the second application (no. 42836/12) by Mr M. Rubbert, both lawyers practising in Berlin.

A. The circumstances of the case

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

1. The investigation proceedings

On 2 August 2005 the Berlin Tiergarten District Court issued a warrant of arrest against the applicant on suspicion of two counts of drug trafficking. The arrest warrant specified that the strong suspicion that the applicant had committed the offences resulted from statements made by one of his co ‑ suspects, the separately prosecuted A.K. The District Court further found that there was a risk that the applicant, who did not have a permanent residence in Germany and in the past had been travelling between Brazil and Europe, would abscond. He had previously been sentenced to a prison sentence in Germany part of which had been suspended. Moreover, two additional arrest warrants were pending against him in Germany, one relating to a further offence of drug trafficking and the other, dated 1 July 2004, concerning forgery of identification papers.

Since 16 August 2006 the applicant was detained in Portugal pending his deportation to Germany ( Abschiebehaft ) as a consequence of the arrest warrants dated 1 July 2004 and 2 August 2005. He was extradited to Germany on 8 September 2006 where he was remanded in custody in the Berlin Moabit prison. His detention on remand ( Untersuchungshaft ) was subject to reinforced security conditions. He was kept separate from other prisoners in an isolated cell ( isolierter Einzelhaftraum ) and was excluded from most group prison events. Contacts with visitors were limited and subject to close supervision.

On 18 September 2006 the Berlin Prosecutor ’ s Office charged the applicant with having used a forged passport when entering German territory on an occasion in 2003. By a further bill of indictment dated 20 October 2006, he was charged with two counts of drug trafficking, committed jointly with further co-accused, among them G., U. and A.K. He was further accused of having instigated G. to illicitly import drugs.

In their description of the facts underlying the drug-related offences allegedly committed by the applicant, the prosecution authorities mainly relied on statements made by A.K. within the scope of separate criminal proceedings jointly conducted against A.K. and U. before the Berlin Regional Court on suspicion of organised drug trafficking. The bill of indictment further specified that the applicant was suffering from a congenital heart defect and as a consequence was not to be subjected to long-lasting situations of physical and mental stress.

2. The applicant ’ s trial and detention on remand

On 13 December 2006 the Berlin Regional Court admitted both indictments and opened the trial against the applicant. The Regional Court further decided to join the criminal proceedings instituted against the co ‑ accused G. and the applicant ’ s proceedings. The trial started on 20 February 2007. The applicant was represented by counsel throughout the proceedings.

By a judgment of the Berlin Regional Court dated 28 February 2007 in the proceedings separately conducted against A.K., the latter was convicted of several counts of drug trafficking and illicit importation of drugs and sentenced to an accumulated prison sentence of five years and three months. A.K. appealed the judgment on points of law.

On 20 September 2007 the applicant applied for the arrest warrants dated 1 July 2004 and 2 August 2005 to be set aside. By a decision of the same day the Regional Court rejected the applicant ’ s motion holding that contrary to the applicant ’ s submissions there remained a strong suspicion that he had committed the crimes.

A similar request dated 3 0 October 2007 was dismissed by the Regional Court on 19 November 2007. Relying on A.K. ’ s testimony, which it deemed to be credible, the Regional Court confirmed that a strong suspicion against the applicant persisted with respect to all charges of drug trafficking. The court further held that since the charges brought against the applicant could entail a prison sentence of considerable duration, it was likely that he would abscond if released. While taking into account the duration of the proceedings and their expected further conduct, the Regional Court found that the applicant ’ s continued detention was still proportionate.

On 3 December 2007 the Regional Court, following the applicant ’ s appeal, refused to change its decision ( Nichtabhilfe der Beschwerde ) and forwarded the appeal to the Berlin Court of Appeal ( Kammergericht ).

By a decision of 17 December 2007 the Court of Appeal rejected the applicant ’ s appeal. Endorsing the Regional Court ’ s decision of 19 November 2007, the Court of Appeal confirmed that the applicant ’ s continued detention on remand was still proportionate. The trial court had complied with its obligation to expeditiously conduct the proceedings . Any circumstances that had limited the court ’ s ability to accelerate the proceedings had their origin outside the latter ’ s sphere of responsibility. Since the first trial day on 20 February 2007, hearings had been held on 37 days even though initially only ten hearings had been scheduled for the period up to 8 May 2007. Additional hearings had become necessary since A.K., who had been heard as a witness on several occasions until April 2007, had been re-examined in June and July 2007 at the request of the defence. A hearing of a further witness who only agreed to testify at trial in July 2007 had to be rescheduled several times due to the latter being subject to medical treatment or on the ground that his counsel was unable to attend trial. Further delays in the proceedings were the result of comprehensive applications for the taking of evidence by the defence in August and September 2007, in particular of a voluminous motion regarding the applicant ’ s alibi submitted on 2 August 2007. Moreover, the applicant had been unavailable to attend trial on a number of days due to his participation in separately conducted court proceedings. The Court of Appeal further noted that the fact that one of the judges sitting in the applicant ’ s case had been seconded to another court since 15 October 2007 had reduced the frequency with which hearings could be held. The Court of Appeal pointed out that while this was a circumstance that could be considered to fall within the State ’ s responsibility, the Regional Court had nevertheless assured to continue holding hearings in weekly intervals.

On 3 March 2008 the applicant again requested that the arrest warrants be set aside. He argued that in view of contradictory submissions made by A.K. in the course of the trial there was no longer a strong suspicion that the applicant had committed the drug-related offences that were the subject of the arrest warrant dated 2 August 2005. Having regard to the delays in the proceedings and in view of the applicant ’ s heart disease his continued detention for meanwhile 18 months, which moreover was still executed under reinforced security conditions, was disproportionate. The delays in the proceedings were the result of an insufficiently tight hearing schedule and a protracted treatment of the defence ’ s applications for the taking of evidence by the trial court. For instance, the court had still not dealt with the application for the taking of evidenc e submitted by the defence on 2 August 2007.

By a decision of 7 March 2008 the Regional Court ordered that the applicant ’ s detention on remand be continued. In the Regional Court ’ s view the alleged contradictions in A.K. ’ s statements were not so significant as to dispel the strong suspicion that the applicant had committed the crimes. Furthermore, any possible delays in the proceedings were the result of the continuing voluminous applications for the taking of evidence by the defence, the most recent dating from 18 February 2008. On 4 April 2008 the Regional Court, following the applicant ’ s appeal, upheld its decision.

On 29 April 2008 the Berlin Court of Appeal li fted the arrest warrant dated 1 July 2004 but rejected the remainder of the appeal. The Court of Appeal held that the Regional Court had advanced relevant reasons for its finding that a strong suspicion of the applicant having committed the drug-related offences persisted. There also remained a risk that the applicant would abscond if released, since in the event of a possible conviction he had to expect a prison sentence of not less than five years. Moreover, the fact that further criminal investigations in relation to serious drug-related offences had been instituted by the Berlin prosecution authorities against the applicant made the risk of his absconding even more likely. In addition, he was subject to a final expulsion order since 2003 and did not have any personal ties in Berlin.

The Court of Appeal further held that while the sentence to be expected for the offence of forgery underlying the arrest warrant of 1 July 2004 did not justify its further execution, the applicant ’ s continued detention on remand on the basis of the arrest warrant dated 2 August 2005 was, for the time being, still proportionate. The Court of Appeal emphasised that the longer a detention on remand lasted, the stricter the scrutiny whether the public interest in the prosecution of crimes still prevailed over the detainee ’ s interest to be released had to be. In this assessment it was decisive whether the domestic authorities had exercised the required diligence in expediting the proceedings, while having regard to the circumstances of the particular case such as the complexity of the proceedings and the behaviour of the defence. The Court of Appeal noted in this context that in the period since 20 February 2007 hearings had been held in the instant case on 56 days with an average duration of three hours amounting to an average of less than one hearing day per week. Gaps in the hearing schedule in April 2007, in the period from 12 July until 3 September 2007 and at the end of 2007 had their origin in the judges ’ absence due to vacation while in May 2007 counsel for the defence had been on leave. Even though such hearing schedule did in principle not comply with the principle enshrined in the rule of law that criminal proceedings involving an accused ’ s detention on remand had to be conducted expeditiously, a possible breach of such principle had not yet reached a degree that made the continued execution of the arrest warrant disproportionate. In its decision the Court of Appeal included an 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 or their counsel were unable to attend the hearing. Furthermore, ever since 2 August 2007 the defence had successively filed numerous motions for the taking of evidence. A further delay had been caused due to A.K. staying abroad in March 2008. The Court of Appeal held that in view of the exceptional circumstances of the case and even while taking into account the applicant ’ s heart condition, the continuation of his detention on remand was still acceptable.

On 29 May 2008 the applicant lodged a constitutional complaint against the Court of Appeal ’ s decision of 29 April 2008 and applied for his immediate release.

On 2 June 2008 following a plea bargain between the prosecution and the defence the proceedings against G. were severed from the applicant ’ s trial.

On 4 June 2008 the applicant, whose heart condition had deteriorated in the course of his detention and who had previously been treated in prison hospital, underwent heart surgery.

By a decision of 11 June 2008 (file no. 2 BvR 1062/08) the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint of 29 May 2008 without providing reasons. It further held that, as a consequence, there was no need to decide on the applicant ’ s request for interim measures.

By a final decision of 10 July 2008 the Federal Court of Justice dismissed A.K. ’ s appeal on points of law against his conviction by judgment of the Berlin Regional Court dated 28 February 2007.

O n 4 August 2008 the applicant submitted a further request to set aside the arrest warrant dated 2 August 2005. He argued that the conduct of the proceedings since the Court of Appeal ’ s decision of 29 April 2008 still did not comply with the trial court ’ s obligations to conduct the proceedings expeditiously and that the continued execution of the arrest warrant was thus disproportionate. He had meanwhile been detained on remand for a period of over two years and his detention was still subject to the particularly burdensome reinforced security measures. These had even been upheld during his two months ’ stay in the prison hospital. The applicant further invoked that he still suffered from a heart condition and could not benefit from the necessary rehabilitation measures following his surgery while being in detention.

By a decision of 15 August 2008 the Berlin Regional Court held that the applicant ’ s detention was still proportionate. On 10 September 2008, following the applicant ’ s appeal dated 20 August 2008, the Regional Court confirmed its decision. In the court ’ s view the strong suspicion that the applicant had committed the crimes and the risk that he would abscond if released remained unchanged. The detention was further justified by a risk of collusion ( Verdunklungsgefahr ) since there were grounds to assume that the applicant would manipulate evidence if released. In March 2007 the applicant had used a mobile telephone in prison without permission and during his stay in prison hospital he had corresponded with his partner. As regards the length of the proceedings, the Regional Court emphasised that the hearing schedule since April 2008 had been determined by the stage of the procedure and the applicant ’ s state of health.

By written submissions to the Berlin Court of Appeal of 19 September 2008 the Berlin Chief Public Prosecutor ’ s Office ( Generalstaatsanwaltschaft ) moved that the applicant ’ s appeal be rejected. The applicant replied by written submissions dated 24 and 26 September 2008.

On 6 October 2008 the Berlin Court of Appeal rejected the applicant ’ s appeal. The Court of Appeal endorsed the Regional Court ’ s finding that the strong suspicion of the applicant having engaged in drug trafficking as well as the risk of him absconding persisted. There was however nothing to establish that the applicant had contacted persons outside prison with a view to manipulating evidence and his detention could thus, contrary to the Regional Court ’ s finding, not be based on a risk of collusion. With reference to the findings in its decision of 29 April 2008, the Court of Appeal further held that the conduct of the proceedings since May 2008 and the applicant ’ s additional submissions did not change its assessment that his continuing detention on remand was still proportionate. The low frequency with which hearings had been scheduled had not been imputable to the domestic courts. By contrast, the separation of the proceedings against G. had constituted an attempt to accelerate the applicant ’ s trial. As in previous periods the hearing schedule had been determined by the successive motions for the taking of evidence by the defence and the fact that witnesses had not been able to attend hearings or had made use of their right not to testify. Interruptions of the trial had further been the result of the absence of defence counsel or judges due to vacation as well as the applicant ’ s heart surgery and subsequent recovery period.

On 2 November 2008 the applicant lodged a constitutional complaint against the Berlin Court of Appeal ’ s decision alleging, inter alia , that the domestic authorities ’ failure to conduct the proceedings expeditiously despite his continued detention on remand violated his rights under Article 5 and 6 of the Convention. By a decision of 26 November 2008 (2 BvR 2241/08) the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint without providing reasons.

By decisions of the Berlin Court of Appeal of 9 March 2009 and the Berlin Regional Cou rt of 20 April 2009 the reinforced security conditions accompanying the applicant ’ s detention on remand were set aside for the most part.

On 20 April 2009 the Berlin Regional Court, following a further request by the applicant to lift the arrest warrant, again ordered that the applicant ’ s detention on remand be continued. The applicant appealed the decision arguing that further delays in the proceedings had occurred since November 2008 due to, inter alia , the Regional Court ’ s protracted treatment of the motions for evidence submitted by the defence and its failure to summon witnesses more efficiently. By a decision of 6 May 2009 the Regional Court refus ed to change its decision of 20 April 2009.

On 22 May 2009 the Berlin Court of Appeal, referring to the reasoning in its previous decisions, rejected the applicant ’ s appeal. The Court of Appeal found that the conduct of the proceedin gs since its last decision of 6 October 2008 had again been determined by continuing applications for the taking of evidence by the defence as well as requests for the suspension of the proceedings and motions for bias against the court. All such requests had been dealt with by the Regional Court in due course and any resulting delays in the proceedings did not rest within the trial court ’ s sphere of responsibility.

The applicant ’ s ensuing complaint about a violation of his right to be heard and his request for reconsideration ( Gegenvorstellung ) of the decision were dismissed by the Court of Appeal on 23 June 2009.

By a decision of 27 July 2009 (2 BvR 1320/09) the Federal Constitutional Court declined to consider the applicant ’ s related constitutional complaint of 18 June 2009.

On 16 September 2009, the Berlin Regional Court pronounced its judgment in the applicant ’ s trial after having held hearings on in total 101 days with an average duration of not more than three hours each.

3. The Regional Court ’ s judgment

By its judgment of 16 September 2009 the Berlin Regional Court convicted the applicant of two counts of drug trafficking as well as falsification of documents and imposed an accumulated prison sentence ( Gesamtfreiheitsstrafe ) of six years. In the determination of the applicant ’ s sentence the Regional Court had regard to the particular strain the applicant had been subject to as a result of the long duration of the proceedings as well as of his detention on remand. It emphasised that the latter had lasted around three years calculated from the date of the applicant ’ s extradition from Portugal until the pronouncement of the judgment and had been particularly burdensome due to, inter alia , the reinforced security conditions imposed on the applicant and his heart operation in 2008.

(a) The facts established by the Regional Court

As regards the offence of falsification of documents, the Regional Court established that on 2 November 2003 the applicant had entered German territory using a forged Greek passport.

Concerning the drug-related offences the Regional Court observed that during the period at issue the applicant had engaged in large-scale drug trafficking in cooperation with G. and U. In the aftern oon of 7 February 2004, the applicant, according to a plan previously agreed with U., had taken over 3 kilograms of a cocaine mixture as well as 100 kilograms of hashish from G. in Berlin with a view to reselling the drugs for profit. The Regional Court further found it established that on an unspecifie d date in the period between 25 February and 10 March 2004 the applicant had acquired between 95 and 100 grams of a cocaine mixture from A.K. for the purpose of reselling it for profit to a customer.

(b) The Regional Court ’ s fact finding and assessment of evidence

While the applicant confessed having used a forged passport on the occasion of his entry to Germany on 2 November 2003 he denied any involvement in drug trafficking. The Regional Court based its finding of facts in this regard on the witness statements made by A.K. whom it considered to be the central witness against the applicant and the only direct witness of the facts underlying the actual crimes. A.K. had secretly observed how G. had handed the drugs over to the applicant on 7 February 2004. On the occasion of a meeting between A.K. and the applicant several weeks after the incident, the applicant had confessed to A.K. that G. had imported the drugs on the applicant ’ s behalf according to a plan previously set up with U.

Within the period from 6 March 2007 to 15 January 2009, A.K. testified on several occasions as witness at the applicant ’ s trial. He answered questions by the trial court and the prosecution but refused to answer questions by the applicant or the defence relying on his right to remain silent with a view to not incriminating himself pursuant to Article 55 of the Code of Criminal Procedure. Following his last hearing on 15 January 2009 the witness travelled to Lebanon and subsequent attempts by the Regional Court to summon him to appear at trial were to no avail. By a decision of 31 July 2009 the court held that it was impossible to have the witness examined in the foreseeable future since the latter was prevented from leaving the Lebanon by virtue of a decision by a Lebanese religious court the authenticity of which had been confirmed by the Lebanese Foreign Ministry and the German Embassy in Beirut. Pointing to the court ’ s obligation to conduct the proceedings expeditiously in view of the applicant ’ s continuing detention on remand and having regard to the fact that the witness had repeatedly been heard at trial, the Regional Court was of the opinion that his absence did not justify to further delay the proceedings.

The court further heard representatives of the police and public prosecution authorities who had been involved in A.K. ’ s examination at the pre-trial stage as well as the acting judges and public prosecutors in the criminal proceedings conducted in respect of A.K. and in respect of further separately prosecuted co-accused. In addition, at a request by the defence, all available protocols of statements made by A.K. in the various stages of the proceedings were read out at trial with the consent of all parties.

The Regional Court specified in its judgment that A.K ’ s testimony had only been marginally supplemented and confirmed by the remaining available evidence which had provided information with respect to the motivation underlying the offence, the time it had been committed and the quality of the drugs at issue. The court emphasised that in view of the decisive nature of A.K. ’ s statements for the applicant ’ s conviction and the fact that he had refused to answer any questions by the defence, it had assessed particularly careful and critical whether the witness had been reliable. This had also been necessary taking into account that A.K. was a drug dealer himself and had testified at the applicant ’ s trial with a view to obtaining a reduction of the expected sentence in the proceedings instituted against himself on charges of drug trafficking.

The court nevertheless concluded that A.K. had been a credible witness. His witness statements made at trial had been coherent and consistent with submissions previously made before the investigative authorities at the pre-trial stage. His decision to contribute to the clarification of the facts underlying the charges against the applicant as well as other accused involved in organised drug trafficking had been motivated by his wish to cut his link to the drug dealer scene and start a new life. In the Regional Court ’ s opinion there was nothing to establish that he had wrongly incriminated the applicant.

The Regional Court further found that the applicant ’ s right under Article 6 § 3(d) of the Convention to examine or have examined witnesses against him had been respected in the instance case. A.K. ’ s refusal to answer questions by the defence did not require the court to exclude his statements as evidence in the trial nor did such behaviour put the witness ’ s credibility into question. Even following termination of the criminal proceedings against A.K. by final decision of the Federal Court of Justice dated 10 July 2008, the witness could still rely on his right not to testify pursuant to Article 55 of the Code of Criminal Procedure since there remained a risk that he would incriminate himself with respect to offences that were closely linked to the one he had been convicted of. Several investigations previously conducted against A.K. in this respect had been discontinued by the prosecution authorities and could be resumed in the future. The court emphasised in this connection that it had done everything in its power to enable an examination of A.K. by the defence. Despite A.K. ’ s refusal to answer questions by the defence or the applicant, even if put to him in writing, the court had granted the request by defence counsel to examine him . Any attempts in this respect had, however, been to no avail. As a consequence the court itself had questioned A.K. on subjects that had transpired to be of importance for the defence and which had all been answered by him . In addition, A.K. had answered a number of questions that had been proposed by the defence and had been put to him by the court with identical wording. At his counsel ’ s recommendation he had then decided to refrain from participating in any such indirect questioning.

4. The proceedings before the Federal Court of Justice

In his appeal on points of law against the Regional Court ’ s judgment the applicant complained, inter alia , that neither he nor his counsel had had an opportunity to examine A.K., the main witness against him, at any stage of the proceedings. A.K. ’ s testimony had also not been corroborated by further significant evidence as regards the actual commission of the crime by the applicant. The applicant further argued that after A.K. ’ s conviction in the criminal proceedings conducted aga inst him had become final on 10 July 2008, the latter could no longer rely on a right to remain silent pursuant to Article 55 of the Code of Criminal Procedure in the applicant ’ s proceedings. The Regional Court had nevertheless not compelled him to answer questions by the defence at that stage of the proceedings and had consequently not done everything in its power to enable an examination of the witness by the defence in breach of Article 6 § 3 (d) of the Convention.

By written submissions to the Federal Court of Justice dated 31 August 2008 the Federal Public Prosecutor moved that the applicant ’ s appeal on points of law be dismissed. He argued that notwithstanding the fact that applicant had not had an opportunity to examine A.K. at any stage of the proceedings, these had as a whole been fair. The resulting restrictions to the rights of the defence had not been imputable to the domestic authorities and the Regional Court had assessed A.K ’ s statements particularly critical and had carefully examined whether his conduct during trial had put his credibility into question.

In his reply to the Federal Prosecutor ’ s submissions the applicant invoked in addition that his trial had been unreasonably long. He argued that during 135 weeks or 31 months of trial, hearings had been held on 101 days which amounted to an average of 0.75 days per week or 3.25 days per month and had on average lasted less than three hours each.

By a decision of 6 December 2010 the Federal Court of Justice dismissed the applicant ’ s appeal on points of law as manifestly ill-founded

By written submissions dated 20 October 2010 to the Federal Court of Justice the applicant complained about a violation of his right to be heard. He further argued that the Regional Court ’ s judgment did not provide for a specified part of the prison sentence imposed on him to be considered as already being executed in compensation for the excessive length of the proceedings in accordance with the so-called “execution approach” (“ Vollstreckungslösung ” ) developed in the Federal Court of Justice ’ s case ‑ law. The mere reference to the burden the long duration of the applicant ’ s detention on remand had constituted was not sufficient to compensate for the violation of his rights under Articles 5 § 3 and 6 § 1 of the Convention.

On 17 January 2011 the Federal Court of Justice rejected the applicant ’ s complaint.

5. The proceedings before the Federal Constitutional Court

By a decision of 18 January 2012 (file no. 2 BvR 447/11) the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint of 13 January 2011 lodged against the Regional Court ’ s judgment of 16 September 2009 as well as the decisions of the F ederal Court of Justice dated 6 December 2010 and 17 January 2011 without providing reasons.

B. Relevant domestic law

Article 55 (1) of the Code of Criminal Procedure stipulates that a witness may refuse to answer any questions the reply to which would subject him, or one of his close relatives, to the risk of being prosecuted for a criminal or a regulatory offence.

COMPLAINTS

Relying on Article 6 § 1 read in conjunction with § 3(d) of the Convention the applicant complained that neither he nor counsel had been able at any stage of the proceedings to question A.K., the main witness against the applicant (application no. 42836/12). Since as a consequence the applicant did not have an opportunity to challenge the credibility of the witness ’ s testimony, his right to mount an effective defence had been unduly restricted. Such restriction to the rights of the defence had not been sufficiently compensated by the trial court. The Regional Court had not applied the required diligence when assessing the veracity and credibility of A.K. ’ s testimony which, moreover, had not been corroborated by further significant means of evidence. The fact that the Regional Court had nevertheless based the applicant ’ s conviction on A.K. ’ s witness statements had rendered the proceedings as a whole unfair.

The applicant further complained under Artic le 5 § 3 of the Convention that the length of his detention on remand had been excessive and disproportionate (application no. 8824/09). Relying on Article 6 § 1 of the Convention he contended that his trial had been unreasonably long (applications nos. 8824/09 and 42839/12). The Berlin Court of Appeal in its impugned decisions of 6 October 2008 and 22 May 2009 had not advanced sufficient and relevant grounds justifying the applicant ’ s continuing deprivation of liberty but had simply referred to its related reasoning in previous decisions ordering the continuation of his detention on remand. Furthermore, the court had failed to display the appropriate diligence with a view to expeditiously conducting the proceedings. Having regard to the applicant ’ s heart disease and the reinforced security measures accompanying his detention on remand, the Regional Court would have been required to impose a tighter hearing schedule and make an effort to summon witnesses and experts in a more efficient way with a view to accelerating the proceedings. The applicant finally contended that the excessive length of the proceedings had not been compensated in the calculation of his prison sentence as determined in the Regional Court ’ s judgment of 16 September 2009.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against hi m, in accordance with Article 6 § 1 of the Convention? In particular, was the applicant able to examine or have examined A.K., the main witness agains t him, as required by Article 6 § 3(d) of the Convention? In this connection, did the domestic authorities take the necessary steps so as to enable the applicant or counsel to examine the witness at the investigative stage or at trial?

2. Was the length of the applicant ’ s detention on remand in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

3. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?