AS TO THE ADMISSIBILITY OF
Application No. 19929/92
by H.Ö.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 1 September 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
G.B. REFFI
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 21 February 1992
by H.Ö. against Germany and registered on 16 April 1992 under file No.
19929/92;
Having regard to:
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
27 October 1992 and the observations in reply submitted by the
applicant on 25 January 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen, born in 1945 and presently
detained in prison in Koblenz. He is represented by Mr. M. Enders, a
lawyer practising in Koblenz.
The applicant complains of his detention on remand.
It follows from his statements and the documents submitted that
on 24 July 1991 the District Court (Amtsgericht) in Koblenz issued a
warrant of arrest against the applicant who was suspected of tax
evasion. The applicant had been provisionally arrested the previous
day, i.e. 23 July 1991.
On 24 October 1991 the District Court ordered that the
applicant's detention on remand should continue.
On 4 November 1991 the Koblenz Regional Court (Landgericht)
rejected the applicant's appeal against the order of 24 October 1991.
It is stated in the decision that on the basis of the result of the
investigations and in particular the seized documents, there was strong
suspicion that the applicant as manager of the firm API GmbH (company
with limited liability) had evaded taxes. The company had according
to the findings of the investigation authorities been acting as an
employment agency and had not paid taxes and social security
contributions due in connection with the wages paid by it.
The court further considered that there was danger of absconding
as the applicant had to expect serious punishment and might therefore
be tempted to return to Turkey despite the fact that his family lived
in Germany and two of his children went to school there. Furthermore
his company had gone bankrupt and the applicant no longer had any
regular income. The court noted that it was unnecessary to decide
whether the danger of suppression of evidence, mentioned in the arrest
warrant of 24 July 1991, still existed.
On 2 December 1991 the Koblenz Court of Appeal
(Oberlandesgericht) rejected the applicant's further appeal. The court
considered that in view of the evidence given by the applicant's former
employee H. there was evidence that the applicant had knowingly evaded
taxes in the amount of some 836,000 DM and social security
contributions in the amount of some 407,000 DM. He therefore had to
expect a severe sentence and consequently there was a risk of
absconding in that he returned with his family to Turkey in order to
live there under a new identity to avoid extradition. According to the
courts, however, no danger of suppression of evidence could be
established.
The applicant then lodged a constitutional complaint.
On 29 January 1992 a group of three judges of the Federal
Constitutional Court (Bundesverfassungsgericht) rejected this complaint
as offering no prospects of success. The court considered that the
decisions complained of did not disclose any violation of
constitutional rights or arbitrariness. The continuing detention on
remand was also not disproportionate as the applicant had to expect a
severe sentence.
On 7 February 1992 the Koblenz Court of Appeal ordered that the
applicant's detention should continue and that the question of whether
or not it should be maintained should again be examined on 7 May 1992.
The court stated further evidence taken in the meantime confirmed
the strong suspicion against the applicant. Contrary to the arguments
of the defence, the courts considered that the finance authorities'
decision of 16 January 1992 suspending the execution of a tax payment
order dated 28 August 1991 did not prove that the claims raised by the
tax authorities against the applicant were unfounded. The suspension
had been ordered in consequence of an appeal lodged by the applicant
and had only been ordered provisionally pending the outcome of the
examination of the applicant's appeal. This did not mean that the
appeal and the applicant's objections against his tax liability were
well-founded. The court further stated that in view of the complexity
of the case and the necessity to hear a large number of witnesses it
had not yet been possible to terminate the investigation proceedings.
According to information given by the public prosecution a further
month was necessary to hear witnesses. Furthermore the final report
of the finance authorities had not yet been established. Consequently
it was necessary to prolong the detention on remand for three more
months as danger of absconding also continued to exist for the reasons
expressed in the previous decision of 2 December 1991. This did not
violate the principle of proportionality.
The applicant again lodged a constitutional complaint which was
rejected by a group of three judges of the Federal Constitutional Court
on 10 March 1992 as offering no prospects of success. It is stated
in the decision that there was nothing to show that the existence of
strong suspicion against the applicant was arbitrarily assumed. In
view of the difficulty and complexity of the investigations no
violation of the right to speedy proceedings was manifest and the
length of detention on remand was proportionate in view of the sentence
which the applicant had to expect.
On 14 May 1992 the Koblenz Court of Appeal again prolonged
detention on remand.
On 11 June 1992 an indictment was filed and the main proceedings
were opened on 10 July 1992.
Requests made by the defense on 15 July 1992 to suspend the
proceedings pending proceedings before the finance courts and to
suspend enforcement of the arrest warrant were rejected on 21 July
1992.
After several hearings the applicant was convicted on 27 August
1992 of fraud and tax evasion (Betrug und Steuerhinterziehung) and
sentenced to three years imprisonment. According to the findings of
the trial court the applicant had evaded wage taxes in the amount of
at least DM 700,000. He had also caused damages to the social security
authorities but had, to a great extent, repaired them in the meantime.
The offences had been admitted by the applicant who accepted the
judgment waiving his right to appeal on the day the judgment was
pronounced.
Also on the same day the warrant of arrest was set aside and the
applicant set free.
At the trial the applicant was defended by Mr. B, a defence
counsel from Munich.
On 31 October 1992 the applicant was invited to start serving the
remaining part of sentence, deduction being made of the period he had
spent in prison on remand. A request to stay the execution of sentence
was rejected by the Public Prosecution and this decision was confirmed
on 9 November 1992 by the Regional Court. A further appeal was
rejected by the Koblenz Court of Appeal on 8 December 1992. Insofar
as the applicant had submitted that he needed time to propose an action
against the tax authorities - action which would prove his innocence -
it is stated by the appellate court that in view of the existing
results of the tax authorities' investigations this action could as
well be prepared while the applicant served his sentence, the stay of
execution could be granted only in conjunction with a request for a
retrial - if such request appeared to offer any chance of success.
The applicant thereupon returned to Turkey in order to avoid
further imprisonment.
COMPLAINTS
The applicant mainly complains under Article 5 paras. 1 (c) and
3 of the Convention that his detention on remand was unjustified and
unreasonably prolonged. He submits that he admitted the charges laid
against him only in order to get free and obtain access to the seized
documents needed for the preparation of his action against the tax
authorities. He further submits that had he been released before his
trial and given enough time and opportunity to prepare his defense he
would not have fled. After conviction as a result of an unfair trial
he had however no other choice than to leave Germany provisionally and
leave his family behind. He now also complains of the alleged
unfairness of the criminal proceedings.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 February 1992 and registered
on 16 April 1992.
On 7 July 1992 the Commission decided that notice of the
complaint on the length of detention should be given to the respondent
Government, pursuant to Rule 42 para. 2 (b) of its Rules of Procedure,
and that the parties should be invited to submit their written
observations on the admissibility and merits of this complaint.
The Government sent their written observations on 27 October
1992. The applicant's representative submitted observations in reply
on 25 January 1993.
THE LAW
1. The applicant mainly questions the lawfulness and length of his
detention on remand.
The applicant points out that once he was made to "confess"
during the trial he was immediately released and there was no longer
question of any danger of absconding.
The Government submit, that in the course of the investigations
first of all a great number of documents had to be sifted and examined,
then a number of witnesses had to be heard and an audit report of the
tax authorities had to be awaited. In view of the difficulty and
complexity of the matter it had been handled with adequate diligence,
and a detailed and uncontested calendar of proceedings was submitted
by the Government in support of the latter submission.
It is in the first place the task of the national judicial
authorities to ensure that pre-trial detention does not exceed a
reasonable time. Convention organs decide the question of whether or
not the "reasonable time" exigency was respected essentially on the
basis of the reasons given in the decisions of the domestic courts and
of the true facts mentioned by the applicant in his applications for
release.
The persistence of a reasonable suspicion that the person
arrested has committed an offence is a condition sine qua non for the
validity of continued detention, but, after a certain lapse of time,
it no longer suffices. The Commission must then establish whether the
other grounds given by the judicial authorities continued to justify
the deprivation of liberty and whether the competent national
authorities displayed adequate diligence in the conduct of the
proceedings (Eur. Court H.R., W. v. Switzerland, judgment of 26 January
1993, Series A No. 254, para. 30) which lasted from 23 July 1991 until
27 August 1992 when the applicant was convicted and sentenced. He thus
spent a little more than thirteen months in detention on remand.
The Commission notes that the applicant's detention on remand
was, in accordance with German law, prolonged at regular intervals by
the Koblenz Court of Appeal on the ground that not only was there
strong suspicion against the applicant but also, at the first stage of
proceedings, danger of collusion and throughout the applicant's
detention danger of absconding. The Federal Constitutional Court twice
examined complaints against these decisions and found that the
complaints were unfounded the matter being dealt with by the competent
authorities with adequate diligence and the length of detention being
proportionate to the sentence the applicant had to expect.
The Commission cannot find that these reasons are arbitrary or
unwarranted by the underlying facts . It follows in fact from the
uncontested submissions of the respondent Government and the calendar
of the proceedings that the length of detention on remand was due to
the complexity and difficulty of the investigations and that throughout
the period in question the competent authorities pursued the matter
with the necessary and required diligence.
It follows that this part of the application does not disclose
any appearance of a violation of Article 5 para. 1 (c) or 3
(Art. 5-1-c, 5-3) of the Convention and therefore has to be rejected
as being manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention.
2. The applicant further complained that he was denied a fair trial
and has alleged, subsequent to his conviction, that he was brought to
admit the charges laid against him and to accept the judgment in order
to be set free and to have access to documents necessary to prove that
he had not evaded taxes.
However, the Commission is not called upon to examine this
complaint as under Article 26 (Art. 26) of the Convention it may only
deal with an application after all domestic remedies have been
exhausted.
It is true that the applicant alleged that he accepted the
judgment under pressure. However his allegations in this respect are
unsubstantiated and unsupported by any kind of at least prima facie
evidence. There is consequently nothing to show that the applicant,
who was assisted at his trial by a defense counsel, was in any
objectionable manner prevented from appealing against conviction and
sentence. The applicant has not therefore, in accordance with Article
26 (Art. 26) of the Convention, complied with the condition as to the
exhaustion of domestic remedies.
It follows that this part of the application has to be rejected
for non-exhaustion of domestic remedies under Article 27 para. 3
(Art. 27-3) 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