AS TO THE ADMISSIBILITY OF
Application No. 28397/95
by Robert LÖHR
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 28 February 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 14 November 1994
by Robert LÖHR against Germany and registered on 31 August 1995 under
file No. 28397/95;
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 facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant, born in 1948, is a German national and resident
in Cologne. When lodging his application, he was detained in a prison
in Koblenz.
A. Particular circumstances of the case
On 19 May 1994 the applicant was arrested on the suspicion of
having committed theft on several counts, together with three
accomplices. He was taken into detention on remand on the basis of an
arrest warrant issued by the Koblenz District Court (Amtsgericht).
In the criminal proceedings against him, the applicant was
assisted by defence counsel.
On 9 November 1994 the Koblenz Court of Appeal (Oberlandes-
gericht), as confirmed by its further decision of 28 November 1994,
ordered the applicant's continued detention on remand.
On 7 February 1995 the Koblenz Public Prosecutor's Office
(Staatsanwaltschaft) preferred the indictment against the applicant
finding that, having regard to the result of the investigations, there
was a strong suspicion that he had, together with other members of a
gang, committed theft on numerous counts.
On 14 February 1995 the Presiding Judge at the competent 4th
Criminal Chamber at the Koblenz Regional Court (Landgericht) ordered
that the bill of indictment be served upon the applicant and his
counsel.
On 7 March 1995 the Koblenz Court of Appeal ordered the
applicant's further detention on remand.
In its decision, the Court of Appeal, referring to its earlier
decisions of 9 and 28 November 1994, considered that there was a strong
suspicion against the applicant of having committed the criminal
offences in question, and also that the reasons justifying his
detention within the meaning of S. 112 para. 2 of the Code of Criminal
Procedure (Strafprozeßordnung), namely the risk of his absconding,
persisted. As regards the suspicion against the applicant, the Court
of Appeal referred in particular to the results of the investigations
as stated in the bill of indictment of 7 February 1995.
As to the conduct of the proceedings, the Court of Appeal noted
that the indictment had been served upon the applicant and his defence
counsel on 14 February 1995. The Presiding Judge of the competent
Criminal Chamber had indicated that the trial would open in the
beginning of May 1995. Such timing could not be objected to, taking
into account the time-limits for the defence and the time necessary to
prepare the trial. The Court of Appeal further considered that the
complexity of the investigations had not allowed for terminating the
bill of indictment at an earlier stage. In this respect, the Court
noted that the applicant denied the charges against him and that
considerable circumstantial evidence had to be investigated. The final
report regarding the police investigations was dated 16 January 1995.
Investigation reports to be submitted by the Rhineland Palatinate
Office of Criminal Investigations (Landeskriminalamt) were still
outstanding.
The Court of Appeal, balancing the seriousness of the charges
against the applicant and the severity of the sentence which he risked
incurring against the length of the applicant's detention on remand,
considered that there was no indication of a lack of proportionality.
On 19 May 1995 the 3rd Criminal Chamber of the Koblenz Regional
Court committed the applicant for trial. It further ordered the
applicant's continued detention on remand. Moreover, the applicant was
informed that 7 August 1995 was fixed as date for the start of the
trial against him, which was to be continued on five dates in
August 1995 and on further dates in September 1995, as long as
necessary.
On 9 June 1995 the Court of Appeal again ordered the applicant's
continued detention on remand.
The Court of Appeal, referring to its decision of 7 March 1995,
considered in particular that the risk of the applicant's absconding
persisted as he had no personal links and no professional prospects
and, in case of his conviction, was liable to be sentenced to a
substantial cumulative period of imprisonment taking the numerous
offences concerned and his criminal record into account.
Furthermore, the Court of Appeal found that important reasons had
so far hindered a judgment. The Criminal Chamber first competent in
respect of the applicant's case had been overburdened with work. On
1 May 1995 the President's Office at the Regional Court had, therefore,
transferred the case to the 3rd Criminal Chamber which had meanwhile
committed the applicant for trial and fixed the dates for the opening
and continuation of the trial. No reasons to doubt the proportionality
of the applicant's continued detention on remand existed.
On 29 June 1995 the Federal Constitutional Court
(Bundesverfassungsgericht) refused to admit the applicant's
constitutional complaint (Verfassungsbeschwerde) against the Court of
Appeal's decision of 9 June 1995.
On 4 October 1995 the 3rd Criminal Chamber at the Koblenz
Regional Court convicted the applicant of grave theft committed as a
member of a gang (schwerer Bandendiebstahl) and sentenced him to five
years' imprisonment. The applicant was acquitted of some further
charges.
The Regional Court, having heard the applicant, several witnesses
as well as technical experts of the Office for Criminal Investigations,
found that the applicant, together with accomplices, had burgled
several post offices as from February 1994. In particular he had
burgled a post office near Cochem in the night from 17 to 18 May 1994
and stolen a safe. As regards further charges of burglaries in April
and May 1994, the Regional Court regarded the evidence as insufficient.
The written version of the judgment was finalised on
22 November 1995. According to the applicant, appeal proceedings are
pending.
B. Relevant domestic law
SS. 112 to 131 of the Code of Criminal Procedure (Strafprozeß-
ordnung) concern the arrest and detention of a person on reasonable
suspicion of having committed a criminal offence.
S. 112 prescribes the prerequisites of detention on remand, in
particular a strong suspicion that the person concerned committed a
criminal offence and that there was a reason justifying detention, as
for example, a risk of the person's absconding.
According to SS. 121 and 122, detention on remand may only exceed
a period of six months, without any judgment imposing a sentence of
imprisonment or other measure requiring the accused's detention having
been passed, if the complexity of the case or investigations or another
important reason justified such detention.
COMPLAINTS
1. The applicant complains that his detention on remand violated the
principle of the presumption of innocence within the meaning of
Article 6 para. 2 of the Convention. He submits that he was detained
on remand for the mere reason of his previous criminal record.
2. The applicant complains under Article 5 para. 3 of the Convention
about the length of his detention on remand.
3. The applicant complains under Article 6 para. 1 of the Convention
about the length of the criminal proceedings against him.
4. Finally, the applicant complains about his conviction and the
alleged unfairness of the proceedings concerned. In this respect, he
invokes Article 6 para. 2 of the Convention.
THE LAW
1. The Commission, assuming compliance with the conditions of
Article 26 (Art. 26)of the Convention, has considered the applicant's
complaint about his detention on remand under Article 5 para. 1 (c)
(Art. 5-1-c) of the Convention.
The Commission, having regard to the applicant's submission that
he was detained on remand for the mere reason of his previous criminal
record, notes that the German courts duly applied the relevant
provisions of the Code of Criminal Procedure. The Commission, having
taken into consideration the reasons advanced in these court decisions
on the applicant's detention on remand, both as to the strong suspicion
against him as well as the danger of his absconding, finds no
indication that the deprivation of the applicant's liberty had not been
"in accordance with a procedure prescribed by law" and that his arrest
and detention had not been "lawful" and effected for the purposes of
Article 5 para. 1 (c) (Art. 5-1-c).
In these circumstances, there is no appearance of a violation of
Article 5 para. 1 (Art. 5-1) of the Convention. The applicant's
submissions further disclose no appearance of a violation of the
presumption of innocence.
Consequently, this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2).
2. The applicant complains under Article 5 para. 3 (Art. 5-3) of the
Convention about the length of his detention on remand.
Article 5 para. 3 (Art. 5-3), so far as relevant, provides as
follows:
"Everyone arrested or detained in accordance with the provisions
of paragraph 1 (c) of this Article (Art. 5-1-c) ... shall be
entitled to trial within a reasonable time or to release pending
trial."
The Commission notes that the applicant was detained on remand
between 19 May 1994 and 4 October 1995, i.e. approximately one year,
four months and two weeks.
The Commission recalls that it is in the first place for the
national authorities to ensure that, in a given case, pre-trial
detention of an accused person does not exceed a reasonable time. To
this end, 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 question of 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 review the reasonableness of the length of
detention (Eur. Court H.R., W. v. Switzerland judgment of
26 January 1993, Series A no. 254, p. 15, para. 30).
The persistence of reasonable suspicion that the person arrested
has committed an offence is a condition sine qua non for the validity
of the continued detention, but, after a certain lapse of time, it no
longer suffices; the Convention organs must then establish whether the
other grounds cited by the judicial authorities continue to justify the
deprivation of liberty, and whether the domestic authorities displayed
special diligence in the conduct of the proceedings (W. v. Switzerland
judgment, loc. cit.).
The Commission notes that the Koblenz Court of Appeal, referring
to the investigations against the applicant and in particular the bill
of indictment, found that there was a strong suspicion that the
applicant had committed theft as member of a gang. The Court's finding
as to the risk of his absconding was based on the absence of any
personal links and of professional prospects as well as the severity
of the sentence which he risked.
As regards the conduct of the proceedings by the domestic
authorities, the Commission notes that the preliminary investigations
started in mid-may 1994 and the Public Prosecutor's Office preferred
the indictment in the beginning of February 1995. The applicant was
committed for trial in May 1995 and the trial started in August 1995.
His conviction was dated 4 October 1995.
The Koblenz Court of Appeal, in its respective decisions,
carefully examined the progress of the proceedings against the
applicant and considered the question of proportionality of the
applicant's continued detention on remand.
The Commission notes that the investigations were of some
complexity, as they concerned charges of burglary on several counts and
the applicant claimed to be innocent. The circumstantial evidence had
to be investigated, necessitating the taking of expert evidence. In
the course of the preliminary investigations as well as in the court
proceedings, no particular delays can be attributed to the German
authorities. In particular, when the 4th Criminal Chamber of the
Koblenz Regional Court appeared to be overburdened with work, the
applicant's case was, without any considerable delay, transferred to
the 3rd Criminal Chamber, which speedily fixed the date for the trial.
The applicant failed to show any failure by the police or the judicial
authorities to act with the necessary diligence.
In these circumstances, the Commission finds that the period of
the applicant's detention on remand did not yet exceed a reasonable
time within the meaning of Article 5 para. 3 (Art. 5-3) of the
Convention.
It follows that this part of the application is likewise
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2).
3. The applicant further complains under Article 6 para. 1
(Art. 6-1) of the Convention about the length of the criminal
proceedings against him.
Article 6 para. 1 (Art. 6-1) provides, inter alia, that in the
determination of any criminal charge against him, everyone is entitled
to a hearing within a reasonable time.
The Commission considers that the period to be examined under
Article 6 para. 1 (Art. 6-1) started on 19 May 1994. According to the
applicant, proceedings concerning his appeal against his conviction on
4 October 1995 are pending. The proceedings have so far lasted more
than one year and nine months.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and having regard to the complexity of the
case, the conduct of the applicant and the conduct of the authorities
dealing with the case. In the present case, the circumstances call for
an overall assessment (Eur. Court H.R., Ficara judgment of
19 February 1991, Series A no. 196-A, p. 9, para. 17).
The Commission, referring to its above findings as to the
complexity of the case and the conduct of the proceedings by the German
authorities, considers that there is no indication that the proceedings
against the applicant were not duly furthered. Accordingly, there is
no indication that the proceedings against the applicant have exceeded
a reasonable time within the meaning of Article 6 para. 1 (Art. 6-1).
It follows that the applicant's complaint about the length of the
criminal proceedings against him is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2).
4. The applicant also complains about his conviction and apparently
the alleged unfairness of the proceedings concerned. In this respect,
he relies on Article 6 para. 2 (Art. 6-2) of the Convention.
With regard to the judicial decision of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77, pp. 81, 88 and Eur.
Court H.R., Van de Hurk judgment of 19 April 1994, Series A no. 288,
p. 20, para. 61; Klaas judgment of 22 September 1993, Series A no. 269,
p. 17, para. 29).
As regards any complaints under Article 6 (Art. 6) that the
criminal proceedings, in particular the trial before the Koblenz
Regional Court, were not fair, the Commission recalls that the question
of whether a trial conforms to the standards laid down in Article 6
(Art. 6) must be decided on the basis of an evaluation of the trial in
its entirety (cf. No. 11058/84, Dec. 13.5.86, D.R. 47, pp. 230 with
further references). It is true that it cannot be excluded that a
specific factor may be so decisive as to enable the fairness of the
trial to be assessed at an earlier stage in the proceedings (cf. Nos
8603/79, 8722/79, 8723/79 and 8729/79 joined, Dec. 18.12.80, D.R. 22,
p. 216). However, the Commission finds that the applicant failed to
show any such specific factors. Accordingly, the applicant's
complaints in this respect are premature.
It follows that this part of the application is likewise
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
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