AS TO THE ADMISSIBILITY OF
Application No. 18999/91
by J.I. P.
against Germany
The European Commission of Human Rights (First Chamber) sitting in
private on 12 January 1994, 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
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 9 October 1991 by
J.I. P. against Germany and registered on 25 October 1991 under file No.
18999/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- the Commission's decision of 2 April 1992 to communicate the
application;
- the observations submitted by the respondent Government, after an
extension of the time-limit, on 15 July 1992 and the observations
in reply submitted by the applicant on 27 July 1992 as well as his
further submissions of 9 August 1993;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant, born in 1955, is a Dutch national of Bulgarian
origin. He is resident in The Hague, Netherlands. Before the Commission
he is represented by Mr. H.-O. Sieg, a lawyer practising in Frankfurt.
On 29 October 1987 the Darmstadt District Court (Amtsgericht), in
the course of criminal proceedings against another accused W., issued a
warrant of arrest against the applicant. The District Court considered
that there was a reasonable suspicion that in 1985 the applicant had
dealt in heroin of a considerable quantity, in that, on two occasions,
he had arranged deals for the other accused W. in the Netherlands; the
heroin was later imported into the Federal Republic of Germany. The
District Court, in this respect, relied on the statements of the other
accused W. It further assumed a danger of absconding on the ground that
the applicant lived in the Netherlands.
The applicant was arrested on 26 January 1988, and informed about
the arrest warrant by the Geldern District Court on 27 January 1988. The
applicant stated that, at the relevant time, he had been on holidays in
Greece. The applicant remained in detention on remand. In the following
proceedings he was represented by defence counsel.
On 14 April 1988 the Darmstadt Public Prosecutor's Office
(Staatsanwaltschaft) preferred the indictment (Anklageerhebung) against
the applicant on the charge of having dealt in drugs of a considerable
quantity.
On 11 May 1988, in the course of appeal proceedings concerning the
applicant's continued detention on remand, the Darmstadt Regional Court
(Landgericht) quashed the arrest warrant. The Regional Court found that,
having regard to the applicant's alleged alibi, there was no longer a
strong suspicion that he had committed the offences in question. The
applicant left for the Netherlands.
On 26 July 1988 the Darmstadt Regional Court, following further
investigations concerning the applicant's alibi, quashed its decision of
11 May 1988 and reinstated the arrest warrant. The arrest warrant was
amended on 18 August 1988.
On 6 September 1988 the proceedings against the applicant were
provisionally discontinued in view of his absence.
On 13 January 1989 the Darmstadt Regional Court, following a
reminder of the Public Prosecutor's Office, committed the applicant for
trial.
On 27 March 1990 the applicant was arrested in Belgium and
extradited to the Federal Republic of Germany on 8 May 1990, and taken
into detention on remand.
On 10 July 1990 the Darmstadt Regional Court ordered the applicant's
further detention on remand. On 23 August 1990 the Frankfurt Court of
Appeal (Oberlandesgericht) ordered the applicant's continued detention.
On 6 November 1990 the Darmstadt Regional Court, upon a hearing,
ordered the applicant's continued detention on remand. The Court, having
regard to the statements of W., who had meanwhile been convicted, and
W.'s son, found a reasonable suspicion that the applicant had been
involved in the drug deals in question. His attempt to prove his alibi
had failed. In this respect, the Regional Court referred in detail to
the result of inquiries at a German travel agency and the statements of
witnesses named by the applicant.
On 9 November 1990 the Regional Court again committed the applicant
for trial.
On 8 January 1991 the Frankfurt Court of Appeal ordered the
applicant's continued detention on remand.
Furthermore, in January 1991 the Presiding Judge at the Darmstadt
Regional Court inquired in how far two foreign witnesses were prepared
to appear at the trial. On 5 March 1991 the Regional Court decided to
hear a Greek witness on the question of the applicant's alibi in
proceedings on letters rogatory.
On 2 April 1991 the Regional Court, and on 13 May 1991 the Court of
Appeal, prolonged the applicant's detention on remand.
The letters rogatory concerning the hearing of the Greek witness
were translated into Greek on 2 April and sent on 23 May 1991.
On 18 July 1991 the Federal Constitutional Court (Bundesver-
fassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde) concerning the Court of Appeal's
decision of 13 May 1991 on the ground that it offered no prospect of
success. The Constitutional Court noted the Court of Appeal's finding
that the proceedings had been furthered and that delays had not been
caused by grave mistakes of the judicial authorities, but had been due
to the illness of the Rapporteur at the Regional Court.
On 20 September 1991 the Frankfurt Court of Appeal ordered again the
applicant's continued detention on remand.
On 20 December 1991 the Frankfurt Court of Appeal quashed the arrest
warrant of the Darmstadt Regional Court of 18 August 1988. The Court of
Appeal considered that the interference with the applicant's right to
liberty was no longer proportionate. It noted in particular that the
charges against the applicant related to facts which had occurred a long
time ago. Furthermore, the applicant, having his family in the
Netherlands, suffered particular hardship due to his detention in the
Federal Republic of Germany. Moreover, the date of his trial was
uncertain, and it could not be assumed that, if he were convicted, his
sentence would exceed the period of his detention on remand, which would
have to be taken into account. The applicant was released on the same
day.
On 18 September 1992, in the proceedings under letters rogatory, the
witness concerned was questioned in Greece.
COMPLAINTS
The applicant complains about the length of the criminal proceedings
and his detention on remand. He invokes Article 6 para. 1 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 October 1991 and registered on
25 October 1991.
On 2 April 1992 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 15 July 1992 the Government submitted their observations after
an extension of the time-limit. The observations in reply by the
applicant were submitted on 27 July 1992. The applicant filed further
submissions on 9 August 1993.
THE LAW
The applicant complains about the length of his detention on remand
and also about the length of the criminal proceedings against him.
The Government submit that the application is inadmissible for non-
exhaustion of domestic remedies on the ground that the applicant only
lodged a constitutional complaint with the Federal Constitutional Court
as regards the third of altogether four decisions prolonging his
detention on remand, namely the Court of Appeal's decision of
13 May 1991. He should have again lodged a constitutional complaint
about the subsequent decision taken by the Court of Appeal on
20 September 1991.
The Commission notes that the applicant unsuccessfully complained
with the Federal Constitutional Court about the third decision of the
Frankfurt Court of Appeal to prolong his detention on remand, which had
at that stage already lasted altogether more than thirteen months. The
Commission finds that the applicant was not required to bring the
question of the reasonableness of the length of his detention on remand
again before the Federal Constitutional Court (cf. no. 10965/84, Dec.
6.7.88, D.R. 56 p. 62; No. 11703/85, Dec. 9.12.87, D.R. 54 p. 116). The
application may not, therefore, be rejected for non-exhaustion of
domestic remedies within the meaning of Article 26 (Art. 26) of the
Convention.
Article 6 para. 1 (Art. 6-1), so far as relevant, provides that "in
the determination ... of any criminal charge against him, everyone is
entitled to a ... hearing within a reasonable time".
The applicant's complaint about the length of his detention on
remand falls within the scope of Article 5 para. 3 (Art. 5-3), which
provides that "everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) (Art. 5-1-c) of this Article shall be
brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial".
The Government, referring to the case-law of the Convention organs,
argue that one problem of the case was to verify the applicant's alibi
which involved the hearing of a witness abroad, that some delay in autumn
1990 was due to the applicant's request to postpone the date for hearing
to review his detention on remand. They submit that some periods of
inactivity on the part of the judicial authorities was excusable or could
have had good reasons, however, they accept that the Court of Appeal's
decision of 20 September 1991, confirming the proportionality of the
applicant's detention on remand at that time, was questionable. As
regards the applicant's complaint about the length of the criminal
proceedings, the Government also submit that experience showed that, in
proceedings under letters rogatory with Greek authorities, it was not
uncommon for more than one year to elapse until their termination.
The Commission finds that the applicant's complaints raise difficult
issues of fact and of law which are of such complexity that their
determination should depend upon a full examination of the merits. These
complaints cannot, therefore, be declared manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No
other ground for declaring them inadmissible has been established.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy