FIFTH SECTION
Application no. 67522/09
Faruk EREREN
against Germany
lodged on 14 December 2009
STATEMENT OF FACTS
The applicant, Mr Faruk Ereren, is a stateless person, who was born in 1955 in Turkey and is currently detained on remand in Ratingen. He is represented before the Court by Mr P. Budde, a lawyer practising in Dortmund.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was arrested on 8 April 2007. On 9 April 2007 the Hagen District Court issued an arrest warrant against the applicant based on suspicion of having forged documents.
On 27 May 2008 the Federal Court of Justice issued a fresh arrest warrant against the applicant. According to the arrest warrant, the applicant was strongly suspected of having participated, in a leading position, in the activities of a foreign terrorist organisation (the Revolutionary People’s Liberation Party-Front, DHKP-C), of having committed two counts of murder and two counts of attempted murder and of having caused several explosions. According to the arrest warrant, the applicant had, in particular, given the order to carry out an attack on policemen which took place in Istanbul on 1 April 1993 and during which two policemen were killed.
On 24 June 2008 the General Public Prosecutor lodged a bill of indictment against the applicant which was based on the same grounds as the arrest warrant dated 27 May 2008.
On 2 October 2008 the Federal Court of Justice ordered the applicant’s continued detention.
On 21 November 2008 the Düsseldorf Court of Appeal (Oberlandesgericht), sitting as a first instance court for proceedings concerning State security, decided to open the trial against the applicant.
The trial started on 15 January 2009 and took place on 69 days.
On 9 June 2009 the Court of Appeal quashed the arrest warrant insofar as it had been based on the suspicion that the applicant had ordered to carry out the attack which had taken place in Istanbul on 1 April 1993 and ordered the applicant’s continued detention based on the remaining grounds of the arrest warrant. The Court of Appeal considered that the witness G.G., relied upon by the prosecution, had not confirmed the testimony he had given in 1993 to the Turkish authorities. Conversely, he had stated that he had been tortured by Turkish civil servants and had been forced to sign a protocol which had previously been prepared. He did not know the applicant. Under these circumstances, no strong suspicion persisted that the applicant had ordered the above-mentioned criminal act.
The Court of Appeal considered that the applicant remained under strong suspicion of having committed the other crimes he was accused of. There was, in particular, sufficient evidence supporting the allegation that the applicant, as a leading member of a terrorist organisation, was responsible for causing explosions and committing other criminal acts.
The Court of Appeal further considered that there was the risk of the applicant’s absconding and the danger of collusion. The court observed that the applicant, who had been residing illegally in Germany, did neither have a fixed residence nor sufficient social ties which could assure his appearance before the court. There were thus no milder means to secure his presence at the trial.
The Court of Appeal further considered that the proceedings were expedited as required in cases involving detention on remand. The Court of Appeal included a detailed account of the trial, explaining that on several occasions witnesses could not be questioned by the court because they made use of their right not to testify. The court had heard testimonies of nine witnesses and was currently hearing four further witnesses. In order to establish whether the applicant had committed the crimes he had been accused of, testimony to be given by Turkish witnesses were of preeminent importance. Accordingly, the Court of Appeal had to make several enquiries by way of letters rogatory in Turkey. In spite of the information given by the Embassy in Ankara, according to which it could take considerable time until the requests were processed by the Turkish authorities, the witness G.G. was already heard on 28 April 2009 by a court in Istanbul in the presence of all parties to the proceedings.
On 4 August 2009 the Federal Court of Justice rejected the applicant’s complaint against the decision of 9 June 2009. The Federal Court of Justice confirmed that the applicant remained under strong suspicion of having ordered several explosions causing injuries and death. The court further confirmed that there remained the danger of the applicant’s absconding and of collusion. The continuation of his detention of remand, which had so far lasted two years and four months, was not disproportionate in view of the importance of the subject matter and of the considerable punishment to be expected in case of a criminal conviction. Furthermore, the length of the proceedings was caused by the complexity of the proceedings, as had been set out in detail by the Court of Appeal.
On 6 October 2009 the Federal Constitutional Court (no. 2 BvR 2133/09) refused to entertain the applicant’s complaint against the decisions of 9 June and 4 August 2009 without giving further reasons.
On 17 May 2010 the Düsseldorf Court of Appeal extended the arrest warrant on the grounds that that there was (again) the strong suspicion that the applicant had ordered the attack during which two policemen were killed in Istanbul in April 1993. This assessment was, in particular, based on testimony given by the witness S. G. who had been heard in Istanbul on 17 February 2010. S. G. had stated that the witness G. G. had informed him in 1993 that the applicant had given him the order to carry out the attack against the policemen. The Court of Appeal considered that this statement was self-consistent and credible. Furthermore, there was further corroborative evidence given by witnesses who had confirmed that the applicant had a leading position in the terrorist organisation at the relevant time.
The Court of Appeal further found that there remained a strong suspicion that the applicant had committed the other crimes he was accused of. Referring to its previous decisions, the Court of Appeal considered that the danger of the applicant’s absconding persisted. This danger had further been aggravated by the fact that another Chamber of the Court of Appeal had, in the meantime, allowed the applicant’s extradition to Turkey. According to an intelligence report dating from 2009, a leader of the terrorist organisation had ordered that the applicant be immediately brought out of the country in case of his release from detention. It was furthermore known that the terrorist organisation had the necessary means to put this plan into action.
The Court of Appeal finally considered that the further execution of detention on remand was not disproportionate, having regard to the importance of the subject matter and to the seriousness of the penalty to be expected in case of a criminal conviction.
On 10 February 2011 the Court of Appeal limited the charge to two counts of murder committed in April 1993 and discontinued the proceedings concerning the other charges originally brought out against the applicant.
On 27 September 2011 the Düsseldorf Court of Appeal convicted the applicant of two counts of murder and sentenced him to life imprisonment. On the basis of the evidence presented during the hearing, the Court of Appeal found it established that the applicant had ordered the assassination of the policemen by telephone from Germany at the end of March 1993. The court primarily based the applicant’s conviction on the testimony given by the witness S. G. who had been heard in Istanbul on 17 February and 23 September 2010. The Court of Appeal considered that the witness testimony was self-consistent with regard to the main events. According to the court, the witness did not make any contradictory statements. In particular, he did not change his statements concerning the circumstances under which the attack of 1 April 1993 had been ordered.
Even taking into account that the witness S. G. had not answered all questions put by the defence, the Court of Appeal did not have any doubts that the witness statement, according to which G. G. had informed S. G. about the applicant’s order to carry out an attack, reflected the truth. There was no indication that S. G. could have given false testimony in order to serve his own interests.
The Court of Appeal further considered that this finding was in line with the command structure inside the terrorist organisation and was not called into question by G. G.’s allegations that he did not know the applicant. During his hearing before the Turkish court, G. G. refused to make any more specific statements. Under these circumstances, the vague statement that the applicant did not have anything to do with the attack was not suited to call S. G.’s testimony into question.
The Court of Appeal did not attach any credibility to the statements by three witnesses, according to which the applicant did not reside in Germany at the relevant time.
The Court of Appeal finally considered that the length of the detention on remand and of the main hearing did not violate the applicant’s right to a hearing within a reasonable time under Article 6 of the Convention. The specific circumstances of the instant case did not allow for an earlier termination of the proceedings. This was due to the extent and to the complexity of the criminal charges. Apart from the two counts of murder the applicant had been convicted of, the applicant had been accused of acting in a leading position in a foreign terrorist organisation and of having participated in causing a considerable number of explosions in Turkey. The case-files consisted of approximately 130 large volumes. As the applicant had been arrested by chance, the examination of the relevant facts could start only after his arrest. The Turkish authorities had submitted a large number of documents such as expert opinions, sketches and records of witness testimony, which had to be translated and examined before the issue of the indictment on 24 June 2008. Due to the extent of the case-file and to the complexity of the subject matter, the main proceedings could not be opened before 21 November 2008. During the hearing which had started on 15 January 2009, the progress of the taking of evidence had been determined by several requests by letter rogatory to the Turkish authorities. Members of the court and representatives of the parties travelled four times to Turkey in order to attend the hearing of witnesses before Turkish courts. Each taking of evidence by letter rogatory took considerably more than half a year. Following this, the taking of evidence was closed on 10 February 2011, but re-opened altogether three times on the request of the defence. The reading out of the applicant’s last word alone took four days.
On 29 November 2012 the Federal Court of Justice quashed the judgment of the Düsseldorf Court of Appeal and remitted the case to another Chamber of that court. The Federal Court of Justice considered that the assessment of the evidence by the Court of Appeal had been erroneous. The Federal Court of Justice considered that the Court of Appeal had wrongly assumed that the testimony given by S. G. on the circumstances of his alleged conversation with G. G. was self-consistent and without contradictions.
The Federal Court of Justice further considered that it could not be ruled out that this error had been decisive for the Court of Appeal’s reaching its verdict. Furthermore, there were further reasons critically to view the testimony given by S. G. Firstly, S. G. had not directly witnessed the applicant ordering the attack, but was merely a witness “by hearsay”. Furthermore, the witness was not heard by the trial court, but by a Turkish court on the trial court’s request. Finally, S. G., who had been arrested in Turkey in 2002, had collaborated with the Turkish police and had thus profited from a milder sentence and from an early release from prison.
On 17 January 2013 the Düsseldorf Court of Appeal ordered the applicant’s continued detention. That court considered that the applicant remained under the strong suspicion of having ordered the attacks carried out on the policemen on 1 April 1993. This was not called into question by the Federal Court of Justice’s decision to quash the judgment. The potential contradictions in the statements made by the witness S. G. had to be examined in the fresh main proceedings.
The further detention on remand was justified because the applicant was under the strong suspicion of having committed a serious crime and because there was the risk of the applicant’s absconding. The Court of Appeal further considered that there was no milder means to secure the applicant’s appearance before the court and that the length of his detention on remand was not yet disproportionate. The fact that the Federal Court of Justice had quashed the judgment of the Düsseldorf Court of Appeal did not lead to a violation of the obligation to expedite the proceedings, as it was not based on an obvious procedural error. Furthermore, the Court of Appeal had respected the obligation to expedite the proceedings by preparing the requests for letters rogatory in order to begin the main hearing by the end of April or the beginning of May 2013.
On 19 March 2013 the Federal Court of Justice rejected the applicant’s complaint against the decision of 17 January 2013. That court confirmed that the applicant remained under strong suspicion of having ordered the attack which took place on 1 April 1993 in Istanbul. This suspicion was primarily based on the testimony given by the witness S. G. during the main hearing on 17 February and 23 September 2010 and by the statements made by the witness G. G. during his interrogation by Turkish police on 2 May 1993. This was not called into question by the fact that the judgment of the Düsseldorf Court of Appeal had been quashed on the applicant’s appeal on points of law. The contradiction in testimony given by S. G. did not concern the core content of his statement, which remained unchanged.
The Federal Court of Justice further observed that the witness G. G. had stated during interrogations by the Turkish authorities on 2 May 1993 that the applicant had given him the order to carry out the attack on 1 April 1993. The court considered that it was not prevented from taking into account this statement by the fact that the witness G. G. had repeatedly claimed that he made this statement under torture. In view of the general and vague allegations of torture and of the result of the investigations into these allegations made by the Turkish authorities, these allegations were presently not confirmed.
The Federal Court of Justice finally considered that the length of the detention of remand (almost six years) was not disproportionate. The court gave a full account of the proceedings and concluded that the length of the proceedings was primarily determined by the complexity of the subject matter and by the very strong international dimension of the case. Conversely, there had not been any considerable delays imputable on the trial court.
On 15 May 2013, the Federal Constitutional Court (no. 2 BvR 790/13), relying on its Rules on Procedure, refused to accept the applicant’s constitutional complaint for adjudication.
B. Relevant domestic law
Under section 112 § 1 of the Code of Criminal Procedure, detention on remand may be ordered if an accused is strongly suspected of the offence and if there is a ground for arrest. It may not be ordered if it is disproportionate to the significance of the case or to the penalty to be imposed.
Under paragraph 2, a ground for arrest shall exist if there is a risk of absconding or of tampering with evidence. Paragraph 3 provides that detention on remand may also be ordered against an accused strongly suspected of having committed specific serious crimes, inter alia murder or manslaughter.
COMPLAINT
The applicant complains under Article 5 § 3 of the Convention that the length of his detention on remand was excessive.
QUESTION TO THE PARTIES
Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?
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