AS TO THE ADMISSIBILITY OF
Application No. 19791/92
by B.H.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 13 October 1993, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 January 1992
by B.H. against Germany and registered on 1 April 1992 under file No.
19791/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
The applicant, born in 1962, is a German national. When lodging
his application he was detained at a psychiatric hospital at Wiesloch.
Since February 1993 the applicant has been represented in the
proceedings before the Commission by Mr. Sieh, a lawyer practising in
Wiesloch.
On 2 April 1988 the applicant was arrested on the suspicion of
murder or manslaughter, namely of having killed a young woman. On
3 April 1988 the Freiburg District Court (Amtsgericht) ordered his
detention on remand.
Furthermore, on 27 April 1988 separate investigation proceedings
were instituted against the applicant on the suspicion of having raped
another woman.
On 7 October 1988 the Karlsruhe Court of Appeal (Oberlandes-
gericht) ordered the applicant's continued detention on remand. The
Court of Appeal stated that the proceedings had been duly furthered,
and that the investigations, due to their complexity, had not yet been
completed.
In December 1988 the Freiburg Public Prosecutor's Office (Staats-
anwaltschaft) received a report on the state of investigations by the
Freiburg Criminal Investigation Department (Kriminalpolizei), according
to which a forensic expert opinion as to the circumstances of the
offence was to be prepared in order to provide a basis for psychiatric
expert opinions on the applicant's criminal responsibility.
Furthermore, the applicant's defence counsel was given access to the
file, and he was asked for information whether the applicant intended
to make any statements on the charge against him. Moreover, the
investigation files were copied.
On 9 January 1989 the Karlsruhe Court of Appeal ordered the
applicant's further detention on remand.
On 26 January 1989 the Freiburg Public Prosecutor's Office
instructed the forensic expert Dr. R. to prepare the above-mentioned
opinion on elements of the offence in question. The copied set of the
files was transmitted to him. In February 1989 the expert announced
that his opinion was to be ready by the end of March 1989.
On 9 March 1989 the Freiburg Public Prosecutor's Office discussed
with counsel the question of choosing the psychiatric and psychological
experts to be appointed in the applicant's case. There was agreement
that the experts could only be chosen after receipt of the forensic
expert opinion.
On 6 April 1989 the Karlsruhe Court of Appeal again ordered the
applicant's continued detention on remand. The Court of Appeal noted
that the forensic expert opinion had not yet been received, and that
further experts could only be appointed thereafter. Having regard to
the seriousness of the charge against the applicant, the length of his
detention on remand was not disproportionate.
On 10 April 1989 the forensic expert informed the Public
Prosecutor's Office that the opinion was complex and necessitated
further experiments, and could only be terminated by the end of April
1989. The applicant's defence counsel was informed accordingly.
On 18 May 1989, following an inquiry, the Public Prosecutor's
Office received the forensic expert opinion, a copy of which was sent
to the applicant's defence counsel.
On 4 July 1989 the Prosecutor's Office discussed the question of
choosing psychiatric and psychological experts with defence counsel.
He informed the prosecution that the applicant continued not to make
any statements on the charge against him.
On 14 July 1989 the Karlsruhe Court of Appeal, having regard to
the further steps in the investigations, ordered the applicant's
continued detention on remand.
On 25 July 1989 the applicant's defence counsel made proposals
as to the appointment of the psychiatric expert and of the
psychological expert.
In August 1989 the Public Prosecutor's Office instructed the
psychiatric expert Prof. S., one of the experts proposed by the
applicant, to prepare an opinion as to the applicant's criminal
responsibility. Prof. S. was requested to inform the Prosecutor's
Office in time, should he consider a supplementary opinion by a
psychological expert necessary. Copies of the files were submitted to
him. Defence counsel was informed accordingly.
In September 1989 the Freiburg District Court, upon the request
of Prof. S., ordered the applicant's transfer to a prison in Hamburg
in order to arrange for an observation by Prof. S. and Dr. M., one of
the psychological experts proposed by the applicant.
On 13 October 1989 the Karlsruhe Court of Appeal again ordered
the continuation of the applicant's detention on remand. The Court of
Appeal found that, having regard to the seriousness of the charge
against the applicant and the sentence he expected in case of his
conviction, the length of his detention on remand was not
disproportionate. The proceedings had not yet been completed due to
the complexity of the investigations.
In November 1989 the prosecution authorities were informed by
Prof. S. that the applicant's psychiatric and psychological examination
would continue until mid-December 1989, and that the written version
of his expert opinion would be ready by the end of January 1990. On
1 December 1989 the Freiburg Public Prosecutor's Office requested
Prof. S. to inform them, possibly by phone, about the termination of
the applicant's examination and its result, and to pass this request
on to Dr. M., the second expert. On 6 December 1989 Prof. S. informed
the Prosecutor's Office that the examination was terminated, and that
both expert opinions could be expected for January 1990. The applicant
was transferred back to the Freiburg Prison.
At the end of December 1990 review proceedings were again pending
before the Karlsruhe Court of Appeal. On 5 January 1990 Prof. S., upon
inquiry of one of the judges dealing with the applicant's case, stated
that it could be excluded that the applicant was not criminally
responsible. The applicant's defence counsel was informed accordingly.
On 12 January 1990 the Court of Appeal decided that the
applicant's detention on remand should continue. The Court of Appeal
stated in particular that there was a reasonable suspicion that the
applicant had committed the crime in question. Having regard to his
attempt to abscond shortly after his arrest and taking into account the
seriousness of the charges against him, there was a danger of his
absconding. The Court of Appeal also found that his continued
detention on remand was proportionate in view of the extensive
investigations involving expert opinions concerning matters of forensic
medicine and expert opinions as regards the applicant's criminal
responsibility. The Court of Appeal stated in particular that there
had been an avoidable delay in the investigations in that the Public
Prosecutor's Office, after the information given by Prof. S. that he
had completed the examination of the applicant, had failed to ask for
a provisional opinion whether the applicant's criminal responsibility
was excluded. On the basis of such provisional information, the
indictment could have been prepared to a large extent. However, as
this delay only amounted to one month it could still be accepted.
On 7 February 1990 the Freiburg Public Prosecutor's Office
received the expert opinion of Dr. M. which was dated 20 January 1990.
On 19 February 1990 the expert opinion prepared by Prof. S. which was
dated 20 December 1989 was received. Both opinions were submitted to
defence counsel.
On 1 March 1990 the Public Prosecutor's Office preferred the
indictment against the applicant on the charge of in particular murder.
On 7 March 1990 the indictment concerning the charge of rape was
preferred with a request for a joinder of the two proceedings. The
Presiding Judge of the competent Chamber (Schwurgerichtskammer) at the
Freiburg Regional Court (Landgericht) asked the experts and defence
counsel for comments on the envisaged date for the trial, namely April
to October 1990.
On 24 April 1990 the Court of Appeal ordered the applicant's
further detention on remand. The Court of Appeal noted that the Public
Prosecutor's Office had received two psychiatric expert opinions on the
applicant's mental health in February 1990, and had meanwhile preferred
the indictment. The date of the trial had been discussed with the
experts and the applicant's defence counsel and 19 September 1990 was
the earliest possible date for the trial.
On 27 June 1990 the Federal Constitutional Court (Bundesver-
fassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde) about the decision of 24 April 1990.
The Constitutional Court considered that the applicant's continued
detention on remand could not yet be objected to under constitutional
law. The Constitutional Court noted that numerous witnesses had been
heard and that expert opinions had been necessary. Thus the overall
length of the preliminary investigations from April 1988 until the
indictment in March 1990 could not be held against the prosecution
authorities, although there might have been some periods of delay. The
fixing of the trial for September 1990 was not due to the workload of
the Regional Court, but there had been a coordination.
On 10 July 1990 the Freiburg Regional Court committed the
applicant for trial as regards the charge of rape, on 12 July 1990 the
Regional Court also committed the applicant for trial as regards the
charge of murder, and it joined both proceedings. It further ordered
the applicant's continued detention on remand.
On 26 July 1990 the Karlsruhe Court of Appeal ordered the
applicant's further detention on remand. The Court of Appeal,
referring to its earlier decision, considered in particular that the
investigations against the applicant had been duly furthered. It noted
that the applicant had been committed for trial on 12 July, and that
the trial was scheduled to start on 19 September 1990.
On 3 August 1990 the Presiding Judge at the Freiburg Regional
Court fixed 19 September 1990 as date for the start of the trial
against the applicant, which was to be continued in September and
October 1990.
On 18 September 1990 the Federal Constitutional Court refused to
admit the applicant's constitutional complaint about the decision of
26 July 1990 on the ground that it offered no prospect of success. The
Constitutional Court found that the length of the applicant's detention
on remand could still be accepted from a constitutional point of view.
It noted that the trial had in the meantime been fixed. Furthermore,
the decision in question did not disclose any arbitrariness and had
regard to all relevant aspects and arguments put forward by the
applicant. The decision was served on 19 September 1990.
On 20 December 1990 the Freiburg Regional Court convicted the
applicant of manslaughter, rape, unlawful coercion and deprivation of
liberty, sentenced him to eleven years' imprisonment, and also ordered
his detention in a psychiatric hospital. In fixing the sentence, the
Regional Court had regard to the extraordinary length of the
applicant's detention on remand, which, due to his personality, put a
particular strain on him.
On 16 July 1991 the Federal Court of Justice (Bundesgerichtshof)
dismissed the applicant's appeal on points of law (Revision). The
decision was served on 31 July 1991.
According to S. 449 of the German Code of Criminal Procedure
(Strafprozessordnung) a criminal conviction and sentence must not be
executed unless the judgment has become final (rechtskräftig).
COMPLAINTS
1. The applicant complains under Article 5 para. 3 of the Convention
about the length of his detention on remand.
2. He also complains under Articles 3 and 6 of the Convention about
his conviction of 20 December 1990, and of the proceedings concerned.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 January 1992 and registered
on 1 April 1992.
On 1 July 1992 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 8 October 1992 the Government submitted their observations.
On 2 December 1992 the applicant was granted legal aid.
The applicant submitted observations in reply on 13 December
1992, which were amended by counsel on 13 April 1993. On 18 June 1993
the Government supplemented their observations.
THE LAW
1. The applicant complains under Article 5 para. 3 (Art. 5-3) of the
Convention about the length of his detention on remand.
Article 5 para. 3 (Art. 5-3), so far as relevant, provides as
follows:
"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."
a. The respondent Government consider that the applicant can no
longer claim to be the victim of a violation of his right under
Article 5 para. 3 (Art. 5-3), as any possible breach was remedied by
the Freiburg Regional Court's judgment of 20 December 1990.
The Commission notes that the Freiburg Regional Court, in the
said judgment of 20 December 1990, convicted the applicant in
particular of manslaughter and rape, sentenced him to eleven years'
imprisonment, and also ordered his detention in a psychiatric hospital.
In fixing the sentence, the Regional Court took into account that the
applicant's detention on remand had attained an extraordinary length
and thereby put a particular strain on him.
The Commission recalls that, as regards complaints about a breach
of Article 6 para. 1 (Art. 6-1), mitigation of sentence and
discontinuance of prosecution on account of the excessive length of
proceedings do not in principle deprive the individual concerned of his
status as a victim within the meaning of Article 25 (Art. 25), unless
the national authorities have acknowledged either expressly or in
substance, and then afforded redress for, the breach of the Convention
(Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, p.
30, para. 66).
The Commission finds that the Freiburg Regional Court, though
referring to an extraordinary length of the applicant's detention on
remand, did not thereby make any finding of a violation of Article 5
para. 3 (Art. 5-3). Moreover, this length and its impact on the
applicant were only indeterminate elements in fixing his sentence.
Consequently, the applicant may still claim to be victim of a
violation of his right under Article 5 para. 3 (Art. 5-3) of the
Convention.
b. The Government also submit that the applicant failed to exhaust
domestic remedies, as required by Article 26 (Art. 26) of the
Convention, on the ground that he did not lodge a constitutional
complaint with the Federal Constitutional Court regarding his
conviction, as confirmed by the Federal Court of Justice on 16 July
1991.
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.
The Commission notes that the applicant lodged a constitutional
complaint against the Karlsruhe Court of Appeal's decision of 24 April
1990 ordering his continued detention on remand. This complaint was
rejected by the Federal Constitutional Court on 27 June 1990.
Furthermore, the applicant unsuccessfully lodged a constitutional
complaint against the Court of Appeal's decision of 26 July 1990 on the
continuation of his detention on remand. In its decision of
18 September 1990, the Federal Constitutional Court took into account
that a date for the trial had in the meantime been fixed, and its
considerations thus also covered this period.
In these circumstances, the Commission considers that the
applicant could not be expected, under Article 26 (Art. 26) of the
Convention, to lodge a further constitutional complaint about the
length of his detention on remand (cf. No. 11703/85, Dec. 9.12.87, D.R.
54 p. 116).
The applicant's complaint under Article 5 para. 3 (Art. 5-3)
cannot, therefore, be rejected under Article 26 (Art. 26) of the
Convention for non-exhaustion of domestic remedies.
c. The Commission further observes that, under Article 26 (Art. 26)
of the Convention, a matter must be raised before the Commission within
six months from the date on which the final decision was taken.
As regards the applicant's complaint about the length of his
detention on remand, the Commission notes that the decision of the
Federal Constitutional Court of 18 September 1990 was served on
19 September 1990.
The applicant's detention on remand, which had started at the
date of his arrest on 2 April 1988, ended, for the purposes of
Article 5 para. 3 (Art. 5-3) of the Convention, on 20 December 1990
when he was convicted at first instance (cf. Eur. Court H.R., B. v.
Austria judgment of 28 March 1990, Series A no. 175, pp. 14-16, paras.
36-38).
The applicant lodged his present application on 30 January 1992,
i.e. not within six months after either the Constitutional Court's
second decision or the termination, for the purposes of Article 5 para.
3 (Art. 5-3), of his detention on remand. However, he complied with
the six-months-rule in respect of the judgment of the Federal Court of
Justice of 16 July 1991 on his appeal on points of law against his
conviction, which was served on 31 July 1991.
The Commission finds that, under Article 26 (Art. 26) of the
Convention, the applicant could not be expected to complain about the
length of his detention on remand until termination of the criminal
proceedings against him as a whole, where the trial courts were in a
position to review the length of his detention on remand and, in fixing
the sentence, give redress, if they should have established a breach
of Article 5 para. 3 (Art. 5-3) (see, mutatis mutandis, No. 11755/85,
Dec. 9.7.87, D.R. 53 p. 166).
The Commission considers that, in these circumstances, this part
of the application cannot be rejected under Article 26 (Art. 26) for
non-compliance with the time-limit of six months.
d. The Government further submit that the overall length of the
applicant's detention on remand of less than thirty-two months and
eighteen days was not unreasonable in the circumstances. They refer
in particular to the complexity of the facts and of the investigations,
which necessitated the taking of expert evidence. They contend that
there were no undue delays on the part of the German authorities.
The applicant considers that the proceedings until the
applicant's conviction could have been terminated after eighteen months
as a maximum. He submits that the case was not complex, and that the
relevant results of the investigations were already available in
September and October 1988. The experts could have been appointed
simultaneously. According to the applicant, his refusal to make any
statements on the charges against him did not render the investigations
more difficult.
The applicant points at several delays in the course of the
proceedings, in particular the delay in preparing the first report on
the result of the investigations and transmitting it to the Public
Prosecutor's Office. The forensic expert opinion on the circumstances
of the offence should have been ordered from the very beginning of the
investigations. Following a first contact with the forensic expert,
it took a month until he was appointed as expert in January 1989. The
applicant further submits that the appointments of the psychiatric and
the psychological experts were belated. The Public Prosecutor's Office
could have also started to prepare the indictment earlier and thus have
it preferred one month earlier.
The Commission notes that the applicant was arrested on 2 April
1988 and detained on remand until 20 December 1990, i.e. approximately
two years, eight months and three weeks.
The Commission recalls that it is in the first place for the
national authorities to ensure that, in a given case, pre-trial
detention of an accused person does not exceed a reasonable time. To
this end, they must examine all the facts arguing for or against the
existence of a genuine requirement of public interest justifying, with
due regard to the principle of the presumption of innocence, a
departure from the rule of respect for individual liberty and set them
out in their decisions on the question of release. It is essentially
on the basis of the reasons given in these decisions and of the true
facts mentioned by the applicant in his appeals, that the Convention
organs are called upon to review the reasonableness of the length of
detention (cf. Eur. Court H.R., Letellier judgment of 26 June 1991,
Series A no. 207, p. 18, para. 35; W. v. Switzerland judgment of
26 January 1993, para. 30, to be published in Series A no. 254).
The persistence of reasonable suspicion that the person arrested
has committed an offence is a condition sine qua non for the validity
of the continued detention, but, after a certain lapse of time, it no
longer suffices; the Convention organs must then establish whether the
other grounds cited by the judicial authorities continue to justify the
deprivation of liberty, and whether the domestic authorities displayed
special diligence in the conduct of the proceedings (cf. Eur. Court
H.R., Letellier judgment, loc. cit.; W. v. Switzerland judgment, loc.
cit.).
The Karlsruhe Court of Appeal, referring to the investigations
and evidence against the applicant, found that there was a reasonable
suspicion that he had committed the offence in question. Its finding
as to the risk of the applicant absconding was based on the seriousness
of the charges against him and the severity of the sentence which he
risked as well as his attempt to abscond shortly after his arrest. The
applicant's continued detention was thus based on sufficient and
relevant grounds.
As regards the conduct of the proceedings by the domestic
authorities, the Commission notes that the preliminary investigations
started in April 1988 and the Public Prosecutor's Office preferred the
indictment in March 1990. The applicant was committed for trial in
July 1990, and convicted on 20 December 1990.
The Karlsruhe Court of Appeal, in its respective decisions,
carefully examined the progress of the criminal proceedings against the
applicant and considered the question of proportionality of the
applicant's continued detention on remand. It did state a delay of one
month in the handling of the case by the Public Prosecutor's Office,
which nevertheless did not render the continued detention on remand
disproportionate. The findings of the Court of Appeal were confirmed
by the Federal Constitutional Court in its decisions of 27 June and
18 September 1990.
The Commission considers that especially the period of almost two
years for completing the preliminary investigations may at first sight
appear excessive.
The Commission recalls that the right of the accused in detention
to have his case examined with particular expeditiousness must not
hinder the efforts of the prosecution authorities to carry out their
tasks with proper care (cf. Eur. Court H.R., Tomasi judgment of 27
August 1992, Series A no. 241-A, p. 39, para. 102; W. v. Switzerland
judgment, loc. cit., para. 42).
In the present case, the investigations were of some complexity.
Though the applicant was suspected and arrested at the very beginning
of the investigations on the case of manslaughter, extensive taking of
expert evidence was necessary in order to clarify the circumstances of
the offence and the question of the applicant's criminal
responsibility. The applicant himself did not make any statements on
the charges against him. The investigations, in particular regarding
the taking of expert evidence, were conducted by the Freiburg Public
Prosecutor's Office in cooperation with the applicant's defence
counsel, who was also involved in the choice of the medical experts
concerned.
It does not appear that the conduct of the investigations by the
Freiburg Public Prosecutor's Office was in general unreasonable and
gave rise to delays which run counter to the requirements of promptness
under Article 5 para. 3 (Art. 5-3). It is true that the Karlsruhe
Court of Appeal, in its decision of 12 January 1990, pointed at a delay
of one month in preparing the indictment; the Federal Constitutional
Court, in its decision of 27 June 1990, also referred to some possible
delays. However, there is no indication of any periods of inactivity
on the part of the prosecution authorities. Their approach to the
investigations cannot be regarded as inefficient and unreasonable,
thus, on the whole, as failure to act with the necessary diligence.
In these circumstances, the Commission considers that the period
of the applicant's detention on remand did not exceed a reasonable time
within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant further complains about his conviction by the
Freiburg Regional Court on 20 December 1990 and the proceedings
concerned.
However, the Commission is not required to decide whether or not
the applicant's submissions in this respect disclose any appearance of
a violation of the Convention as the applicant failed to lodge a
constitutional complaint with the Federal Constitutional Court as
regards his conviction and the court proceedings. He has not,
therefore, as required by Article 26 (Art. 26) of the Convention,
exhausted the remedies available to him under German law.
It follows that this part of his application must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
Accordingly, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy