SUR LA RECEVABILITÉ
Application No. 23673/94
by Hans-Joachim BRAUCKS
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 6 September 1994, the following members being present:
MM. A. WEITZEL, President
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 19 August 1993 by
Hans-Joachim BRAUCKS against Germany and registered on 14 March 1994
under file No. 23673/94;
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 applicant is a German citizen, born in 1964 and presently
detained on remand in prison at Osnabrück.
It follows from his statements and the documents submitted that
on 1 February 1993 the applicant was arrested in Rotenburg. A warrant
of arrest was issued on the following day by the District Court
(Amtsgericht) Rotenburg Wümme. The applicant has been detained on
remand since then on suspicion of having committed six aggravated
thefts.
On 23 February 1993 the case was transferred to the District
Court Osnabrück which considered that the detention on remand should
continue.
On 17 June 1993 the Osnabrück Regional Court (Landgericht)
rejected the applicant's complaint against the warrant of arrest.
According to the grounds given in the decision there was strong
suspicion against the applicant not only because he was incriminated
by a co-accused, W., but also because a car, rented by the applicant
had at the relevant time been seen near the place of the offence and
burglary tools were later found in that car. Similar tools and loot
were likewise found in an apartment rented by the applicant.
The court considered that there was danger of absconding in view
of the heavy sentence the applicant had to expect. In addition it is
pointed out that he had during his interrogations before the police in
March 1993 confessed to some 50 thefts. His present allegation that
his confessions had been obtained by unlawful interrogation methods was
contradicted by the records of these interrogations which the applicant
had signed and which state that the applicant had made the confessions
after consultation with, and on the advice of, his defence counsel.
This had been confirmed by the counsel.
In respect of danger of absconding the court also stated that the
applicant did not have any family links and also no place of work and
fixed abode. An apartment rented by him was admittedly used as a sham
address and deposit for loot but the rent had not been paid. Before
his arrest he had spent the nights in hotel rooms or in the car in
which he and his co-accused had been travelling around.
On 20 July 1993 the Public Prosecutor at the District Court
Osnabrück requested to extend the warrant of arrest to a further 87
criminal offences, mostly thefts.
On 6 August 1993 the Oldenburg Court of Appeal
(Oberlandesgericht) ordered that detention on remand should continue.
The court states in the decision that the applicant only admitted to
having committed certain of the offences in question. There was
nevertheless strong suspicion with regard to all the charges as his
co-accused, W., had given evidence against the applicant. Furthermore
the court considered that there was a danger of absconding in view of
the heavy sentence which the applicant had to face and also in view of
his previous convictions for similar offences. His living conditions
did not disclose any circumstances likely to be an obstacle to his
absconding.
Moreover the court considered that the investigations were
complex and difficult. An expert opinion was still outstanding. In
all these circumstances and in view of the serious charges at issue the
length of the detention on remand was not disproportionate.
On 21 September 1993 the Osnabrück Regional Court decided that
detention on remand should continue. The court pointed out that in the
meantime an indictment had been submitted by the Public Prosecution.
The applicant had partly admitted the charges made against him and as
to the remainder he was strongly suspected in view of the statements
of the co-accused, W. Furthermore the court considered that there was
a danger of absconding there being no personal circumstances likely to
prevent the applicant from doing so.
On 6 October 1993 the applicant's constitutional appeal was
rejected by a group of three judges of the Federal Constitutional Court
(Bundesverfassungsgericht).
On 26 October 1993, the Regional Court admitted the indictment
and opened the main proceedings. Furthermore it decided to keep the
applicant in detention on remand.
On request the applicant informed the Commission's Secretariat
on 18 August 1994 that on 22 December 1993 he had been convicted and
sentenced to three years and nine months imprisonment. An appeal on
points of law (Revision) is apparently still pending.
COMPLAINTS
The applicant considers that he is still in detention on remand
and that it exceeds a reasonable time and therefore violates Article
5 para. 3 of the Convention
THE LAW
The applicant complains about the length of his detention on
remand and invokes Article 5 para. 3 (Art. 5-3) of the Convention which
provides insofar as relevant:
"Everyone arrested or detained in accordance with the provisions
of para. 1.c of this Article .... shall be entitled to trial
within a reasonable time or to release pending trial."
The Commission notes that the applicant was arrested on
1 February 1993 and was convicted in first instance on 22 December
1993. As he was imposed a three years and nine months prison sentence
he is now serving the sentence and detained in accordance with Article
5 para. 1 (a) (Art. 5-1-a) of the Convention (cf. Eur. Court H.R.,
Letellier judgment of 26 June 1991, series A No. 207, p. 17 para. 34).
Consequently the period under consideration lasted from 1 February 1993
until 22 December 1993, i.e. ten months and 21 days.
The Commission recalls that it falls in the first place to the
national judicial authorities to ensure that, in a given case, the
pretrial detention of an accused person does not exceed a reasonable
time and 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 applications for 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 decide whether or not there has
been a violation of Article 5 para. 3 (Art. 5-3) of the Convention
(See, the most recent authority, Eur. Court H.R., W. v. Switzerland,
judgment of 26 January 1993, Series A No 254, p. 32, p. 15 para. 30).
In the present case the applicant was arrested on suspicion of
having committed several aggravated thefts. On 6 August 1993 the
Oldenburg Court of Appeal ordered that the detention on remand should
continue on the ground that the applicant had admitted having committed
certain of the offences in question while as to the remainder he was
implicated by statements made by a co-accused. The court considered
that in view of the heavy sentence which the applicant had to expect
and in view of his living conditions there was a danger of absconding.
Furthermore the court considered that the principle of proportionality
was not violated in view of the complexity and difficulty of the case
and the serious charges at issue.
On 21 September 1993 the Osnabrück Regional Court decided that
detention on remand should continue and pointed out that in the
meantime an indictment had been submitted.
The indictment was admitted on 26 October 1993 while a
constitutional complaint on the length of the detention on remand was
rejected by the Federal Constitutional Court on 11 August 1993.
The Commission cannot find that the domestic courts based their
decisions on the applicant's continued detention on arbitrary reasons
or disregarded vital arguments submitted by the applicant. It can
furthermore not be found that the conduct of the proceedings to date
was objectionable in that the judicial authorities could be considered
to have caused substantial delays.
The applicant, for his part, has, neither in his submissions to
the domestic courts, nor in his present application, stated any facts
or developed any arguments likely to contradict the findings and the
reasoning of the domestic courts. The Commission therefore finds that
the length of the detention at issue is satisfactorily explained and
justified by the unrefuted reasons stated in the various decisions
given on the issue by the domestic courts. It follows that there is
no appearance of a violation of Article 5 para. 3 (Art. 5-3) of the
Convention and the application therefore has to be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy