THE FACTS
Whereas the facts as presented by the Parties may be summarised as
follows:
The Applicants are German citizens, living in Berlin. The Applicant
Helga Gericke was born in 1924; her husband, Wilhelm Gericke, in 1916.
Submitting a power-of-attorney signed by her husband, Helga Gericke has
introduced the present Application both on her own behalf and as
representative of her husband, Wilhelm Gericke.
The Application concerns the detention pending trial of Wilhelm
Gericke.
On 9th November 1961, the Applicant Wilhelm Gericke, who had been a
signing official (Prokurist) of the August Thyssen Bank in Berlin, was
arrested on suspicion of having committed abuse of trust (Untreue)
under Article 266 of the Penal Code (Strafgesetzbuch) by having
knowingly misused the authority conferred on him to dispose of the
property of a third party or to bind a third party and failed in the
duty imposed on him and derived from his position of trust to protect
the property interests of a third party, thereby causing damage to the
party concerned. He was alleged to have co-operated with Karl-Heinz
Wemhoff, arrested on the same day, whose Application No. 2122/64 was
declared admissible by the Commission on 2nd July 1964 (1).
The warrant of arrest (Haftbefehl) was originally issued on the grounds
that the Applicant, Wilhelm Gericke, might flee the country
(Fluchtverdacht) or interfere in the investigation of his case by
suppressing evidence of influencing witnesses (Verdunkelungsgefahr).
Later, the warrant was confirmed on the sole ground of suspicion of
flight.
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(1) Cf. volume 14, page 29.
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On 28th June 1963, the District Court (Amtsgericht) of
Berlin-Tiergarten decided that the Applicant Wilhelm Gericke should be
released pending trial on condition that he surrendered his identity
papers to the Office of the Public Prosecutor (Staatsanwaltschaft) of
Berlin and that he registered twice a day with the police.
On appeal (Beschwerde) by the Office of the Public Prosecutor, this
decision was, however, reversed by the Regional Court (Landgericht) of
Berlin on 19th July 1963, and the further appeal of the second
Applicant was dismissed by the Court of Appeal (Kammergericht) of
Berlin on 5th August 1963.
On 23rd April 1964 the indictment was lodged with the Regional Court,
and on 17th July 1964 the second Applicant, together with Wemhoff and
several other defendants, was committed for trial (Eröffnung des
Hauptverfahrens), a new order for his continued detention having been
made by the Regional Court on 7th July.
On 16th October 1964, the Regional Court ruled that the detention of
the second Applicant should continue. His appeal from this decision was
dismissed by the Court of Appeal on 13th November 1964, the trial
(Hauptverhandlung) having opened before the Regional Court on 9th
November 1964.
Pointing out that Wilhelm Gericke has been detained on remand for a
period of three years, both Applicants allege a violation of Article
5, paragraph (3), of the Convention.
Proceedings before the Commission
A group of three members of the Commission examined the Application on
15th September 1964, and the President of the Commission decided on
17th September 1964:
1. in accordance with Rule 38 of the Rules of Procedure, to give
priority to the Application;
2. in accordance with Rule 45, paragraph (2) of the Rules of Procedure,
to give notice of the Application to the Government of the Federal
Republic of Germany and to invite the Government to submit to the
Commission within a time-limit of six weeks its observations in writing
on the admissibility of the Application.
Under cover of a letter dated 28th October 1964, the Respondent
Government submitted a report of the Attorney-General
(Generalstaatsanwalt) at the Regional Court of Berlin of 8th October
1964, together with copies of court decisions, and of opinions rendered
by the prosecution concerning the detention of the second Applicant.
The Government stated that the exceptional ramifications of the case
and the complexity of the facts which had to be investigated might be
gauged from these documents together with the written accusation
(Anklageschrift) of some 850 pages and the six-volume auditor's opinion
already submitted in connection with the Wemhoff Application No.
2122/64; these circumstances explained the long duration of the
detention on remand in this particular case as compared with other
criminal proceedings.
In the report of the Attorney-General, it was stated that the
prosecution and the Court did everything in their power to reduce to
a minimum the time between the arrest of the second Applicant and his
trial. It was also submitted that a real risk of his escape made his
continued detention necessary during that period.
On 30th October 1964, the Government's observations of 28th October
were sent to the Applicant, Helga Gericke, who was invited to submit
her reply on or before 23rd November 1964.
Under cover of a letter dated 18th November 1964, the first Applicant
submitted the following reply on her own behalf and as representative
of her husband:
1. As a result of the prolonged detention of the Applicant Wilhelm
Gericke, the Applicant, Helga Gericke, and their two children have been
deprived of support for over three years. The education of the
children, too, is in danger as the Applicant, Helga Gericke, working
to earn their living, must very often leave the children alone.
2. In the name of her husband, the Applicant Helga Gericke protested
against the statement of the prosecution and the courts that, because
he might be sentenced to a long term of imprisonment and would never
be able to make good the damage inflicted by him on the August Thyssen
Bank, the Applicant, Wilhelm Gericke, was suspected of intending to
escape. That he had no such intention was shown by the fact that, until
his arrest, he had remained in Berlin where were his wife, children and
his mother. He had also fully co-operated with the prosecution and
offered bail. In the opinion of the Applicants, there is a danger that
an excessive sentence may be imposed in order to justify the duration
of detention pending trial.
THE LAW
I. As to the complaint under Article 5, paragraph (3) (Art. 5-3),
of the Convention, made on behalf of the Applicant, Wilhelm Gericke;
Whereas Article 5, paragraph (3) (Art. 5-3), provides that everyone
arrested or detained in accordance with the provisions of paragraph
(1), sub-paragraph (c), of this Article (Art. 5-1-c) "shall be entitled
to trial within a reasonable time or to release pending trial"; whereas
it is not disputed that the Applicant, Wilhelm Gericke, was arrested
on 9th November 1961 on suspicion of having committed abuse of trust;
that he has been detained since that date, his various applications for
release from custody having been rejected by the competent Courts; and
that his trial was finally opened before the Regional Court on 9th
November 1964;
Whereas the Applicants allege that the detention pending trial of the
Applicant, Wilhelm Gericke, during a period of three years, namely,
from his arrest on 9th November 1961 until the opening of his trial on
9th November 1964, constitutes a violation of Article 5, paragraph (3)
(Art. 5-3), of the Convention;
Whereas the Respondent Government submits that, in the present case,
the duration of the detention on remand is justified in view of the
complexity of the facts which were to be investigated; that the
investigation was carried out with the greatest possible expedition;
and that the continued detention of the Applicant was necessary in
order to prevent his escape;
Whereas the Commission was called upon to examine a similar issue in
Application No. 343/57 (Nielsen v. Denmark) in which the Applicant was
detained for 29 months pending trial; whereas, although it rejected
this part of the Application for non-exhaustion of domestic remedies
in accordance with Articles 26 and 27, paragraph (3) (Art. 27-3),
of the Convention, the Commission, "having regard to the very long
period of time which elapsed before the Applicant was brought to trial
in the present case and to the general circumstances of the case",
considered that the Applicant's complaint of an alleged violation of
his right to trial within a reasonable time, under Article 5, paragraph
(3) (Art. 5-3), was not "manifestly ill-founded" within the meaning of
Article 27, paragraph (2) (Art. 27-2), of the Convention (Yearbook of
the European Convention on Human Rights, Volume 2, pages 412 [452,
454]);
Whereas Article 27, paragraph (2) (Art. 27-2), of the Convention, in
requiring the Commission to declare inadmissible any application from
an individual which it considers to be "manifestly ill-founded", does
not permit the Commission to reject a complaint whose lack of
foundation cannot be so described (see Applications Numbers 1474/62 and
1769/63 - Collection of Decisions of the Commission, Volume 11, pages
50 and 59); whereas in the present case the Commission has carried out
a preliminary examination of the information and arguments submitted
by the Parties regarding the Applicants' complaint that the Applicant,
Wilhelm Gericke, was not brought to trial within a reasonable time nor
released from detention pending trial, within the meaning of Article
5, paragraph (3) (Art. 5-3), of the Convention; whereas the Commission
finds that this complaint is of such complexity that its determination
should depend upon an examination of its merits; whereas it follows
that it cannot be regarded as manifestly ill-founded within the meaning
of Article 27, paragraph (2) (Art. 27-2);
Whereas, therefore, it cannot be declared inadmissible on the ground
(see Application Number 2122/64, Collection of Decisions, Volume 14,
page 29);
II. As regards the remainder of the Application, namely, in so far as
it concerns the complaints made independently by the Applicant Helga
Gericke
Whereas the Applicant, Helga Gericke, complains that, as a result of
prolonged detention of her husband, the Applicant Wilhelm Gericke, she
and their two children have been deprived of their main support for
over three years; that the education of their children is in danger as
she is working to earn their living and must very often leave them
alone; whereas, in respect of these complaints, the Commission finds
that an examination of the file in its present state does not give it
the information required for deciding whether or not this part of the
Application is admissible; whereas, therefore, the Commission decides
to adjourn, pending the examination of the merits of the complaint
dealt with under I above, its examination of this remaining part of the
Application;
Now, therefore, the Commission:
1. Declares admissible, without in any way prejudging its merits, the
Complaint under Article 5, paragraph (3) (Art. 5-3), of the Convention,
made on behalf of the Applicant, Wilhelm Gericke;
2. Adjourns its examination of the remainder of the Application.