I. THE FACTS
The facts of the case, as presented by the parties and apparently not
in dispute between them, may be summarised as follows:
The applicant is a German citizen, born in 1942 and at present detained
in prison in Berlin. She is a lawyer (Assessorin) by profession and is
represented before the Commission by MM. Eschen and Ströbele,
barristers practising in Berlin.
The applicant was arrested in Berlin on 8 October 1970 and remanded in
prison (Untersuchungshaft) on the authority of a warrant of arrest
(Haftbefehl) issued on 9 October 1970 by the District Court
(Amtsgericht) of Tiergarten in Berlin. She was suspected of having
aided members of the so-called "Baader-Meinhof gang" to escape
punishment, in particular the former barrister Mahler who was wanted
for attempted murder, by hiding them in an apartment.
Furthermore, she was suspected of having participated in three bank
hold ups, committed on 29 September 1970 in Berlin. The Court stated
that there was danger of the applicant trying to abscond because she
was threatened with the possibility of a severe sentence of many years
of imprisonment. The Court also pointed out that the applicant was in
possession of a number of forged papers and had rented a second
apartment under a false name.
In November 1970 the Investigating Judge seized some books which had
been sent to the applicant. He stated that there was a danger that the
applicant would create a disturbance in the prison by using the
contents of the books for political propaganda and he pointed out that
the applicant had already fixed a paper on her prison cell with the
inscription "Death to capitalism and its servants" and "Solidarity with
Canadian liberation".
The investigations were first carried out by the Public Prosecutor at
the Regional Court (Staatsanwaltschaft bei dem Landgericht) in Berlin.
At the beginning of 1971 the case was taken over, because of its
importance, by the Attorney-General at the Federal Court
(Generalbundesanwaltschaft beim Bundesgerichtshof).
On 1 April 1971 the Investigating Judge (Ermittlungsricther) of the
Federal Court amended the District Court's warrant of arrest to the
effect that, insofar as the applicant had been suspected of having
aided persons who were wanted for attempted murder to escape
punishment, she was now suspected of having been a member of a criminal
organisation (Article 129 of the Criminal Code) namely the
Baader-Meinhof gang.
The judge stated that, according to the result of these investigations,
there was strong suspicion that this gang had committed several hold
ups and other crimes and that the applicant belonged to the inner
circle of the gang. She had rented an apartment in Berlin under a false
name which had served as a hiding place for the members of the gang.
In September 1970 she had rented several cars by presenting stolen or
forged documents to the hirers. The cars had then been used by the
members of the gang and had not been given back. At her arrest the
applicant was found in possession of a forged motor vehicle
registration card (Kraftfahrzeugschein). The car which was registered
under the forged card was parked nearby. Furthermore, the applicant was
carrying a loaded pistol.
The judge concluded that, in view of the applicant's close relationship
with other members of the underground organisation who had not yet been
arrested and in view of the gravity of the criminal acts of which she
was suspected, there was danger that she would try to abscond
(Fluchtgefahr). He was further of the opinion that the applicant's
conduct in prison proved her intention to suppress evidence and to
influence witnesses and her co-defendants in order to hinder the
investigation proceedings (Verdunklungsgefahr).
On 23 April 1971 the Federal Court, after having heard the
Attorney-General and the applicant's defence counsel, ordered the
applicant's further detention. The Court first rejected her counsel's
argument that it was not competent to deal with the criminal offenses
committed in Berlin. It then stated that the detention was justified
for the grounds already given in the warrant of arrest and in the
above-mentioned decision of the Federal Court' Investigating Judge. The
Court pointed out that it was likely that the applicant would, if she
were released, receive forged papers from other gang members not yet
arrested and that consequently the only way to prevent her absconding
was to keep her in prison. In the Court's opinion a detention exceeding
six months was justified because the case was extremely complex and
very difficult to investigate.
By order or 2 July 1971 the Investigating Judge stopped a letter
written by the applicant because he considered that it contained
distorted statements concerning the system of detention on remand. In
a decision of 8 July 1971 the Investigating Judge approved of certain
security measures which had been taken against the applicant by the
director of the prison in Cologne-Ochsendorf. The applicant had been
transferred to this prison and for seven days was not allowed to walk
in the open air because she had disobeyed the warders and had tried to
incite a riot.
On 29 July 1971 the Federal Court again ordered that the applicant's
detention on remand should continue. It pointed out that the reasons
stated in the previous decisions of 9 October 1970, 1 April 1971 and
23 April 1971 were still valid and added that the investigations
carried out in the meantime had strengthened the existing suspicion
against the applicant and that consequently the danger that the
applicant would try to abscond still existed. The Court stated that the
length of her detention pending trial was justified because extremely
extensive investigations had to be carried out and the applicant's
silence made these investigations even more difficult. The Court
finally stated that the length of detention was in proportion to the
severity of the charges and the sentence to be expected by her.
The Federal Court repeated these grounds in a further decision of 15
November 1971.
At the beginning of 1972 the applicant was re-transferred to a prison
in Berlin and her case was on 1 February 1972 again taken over by a
Public Prosecutor (Generalstaatsanwalt) at the Berlin Regional Court.
By decisions of 9 March, 4 April and 27 April 1972, the competent judge
stopped correspondence addressed to the applicant because the contents
were considered to be objectionable.
On 25 February 1972 the Berlin Court of Appeal (Kammergericht) decided
that the applicant's detention on remand should continue. The Court
stated that, according to the results so far obtained in the
investigation proceedings and contrary to the allegations of the
applicant's defence counsels, the applicant was still strongly
suspected of having been a member of a criminal organisation, of being
an accomplice to aggravated robbery, of having forged documents and of
possessing a weapon without a licence. According to the Court, these
suspicions were mainly based on the statements of a former gang members
and appeared to be credible as they were confirmed by various other
evidence. The Court was convinced that the applicant belonged,
according to the evidence so far obtained, to the inner circle of the
gang because she had been given a cover name and was equipped with a
weapon. Consequently, in the Court's opinion, she had known, and
approved, of the gang's plan to rob three banks in September 1970 and
there was strong suspicion that her part in the robbery had been to
provide the get-away cars which she had rented by fraudulent means in
West Germany and had taken to Berlin. Like the Supreme Court, the Court
of Appeal was of the opinion that there was danger that the applicant
would try to abscond because she had to expect a severe sentence. The
Court left the question open as to whether there was still danger of
suppression of evidence (Verdunklungsgefahr) by her.
The Court further stated that, even if the applicant's allegation were
true that there had been no new investigations carried out for some
time, there had been no delay in the handling of her case because it
took time to scrutinise the evidence already obtained. Finally, the
Court mentioned that it could see no reason to grant the applicant an
oral hearing before giving its decision.
On 17 April 1972 the Public Prosecutor filed the indictment
(Anklageschrift) against the applicant and other alleged gang members.
The applicant was accused of having been a member of a criminal
organisation, of armed robbery committed with others and of illegal
possession of weapons and munition.
By orders of 2 June 1972 and 6 September 1972 the Berlin Court of
Appeal decided that the applicant must remain in prison.
The trial against the applicant and several co-accused began on 24
November 1972. It is still pending but at present is in its final
phase, the prosecution having made their final plea (Anträge).
II. COMPLAINTS
The applicant complained about the length of her detention pending
trial and alleged a violation of Article 5 (3) of the Convention.
She alleged that by the length of her detention and the measures taken
against her in prison (restriction of correspondence, of visits, of
reading material, severe disciplinary punishment, constant observation
even at night) the authorities were trying to break her resistance and
to make her admit to having committed the alleged crimes.
She stated that the first delay in the investigation proceedings was
caused by the fact that her case was taken over by the Federal Attorney
at the end of February 1971. This was done, so she alleges, because
only the Federal Attorney was competent to undertake investigations
against all the members of the Baader-Meinhof gang with the assistance
of a special commission formed for this purpose at the Federal Criminal
Office (Bundeskriminalamt). She admitted that it was probably expedient
to centralise the investigations but she was of the opinion that her
proceedings should not have been delayed for the sake of investigations
carried out against others.
In her opinion there was, at no stage in the proceedings, enough
evidence to give rise to the suspicion that she had participated in
hold-ups or had been a member of a criminal association.
She alleged that her defence counsels were before October 1971 not
allowed to examine the files concerning the investigation proceedings
and could therefore not effectively appeal against the Court decisions
prolonging her detention on remand.
She alleged that her transfer on 15 May 1971 to West Germany, where she
was, according to her statements, detained successively in several
prisons, also hindered her defence counsels considerably.
The applicant pointed out that investigation proceedings against Horst
Mahler, who was arrested at the same time as herself, had already been
terminated in July 1971 and the trial against him had started on 8
October 1972, although he had likewise refused to make any statements
concerning the charges laid against him.
The proceedings against another member of the gang, Heinz Ruhland, had
allegedly been carried out even more quickly. He had been arrested on
20 December 1970 and convicted on 15 March 1972, inter alia, of
aggravated robbery. The applicant admitted that Ruhland had accelerated
the proceedings by his own statements but she pointed out that the
charges laid against him had been much more complex that the charges
laid against herself.
The applicant alleged that Ruhland was the principal prosecution
witness in her case and that he had stated, in February 1971, that she
was a member of the gang and that, to his belief, certainly
participated in the hold-ups. The applicant concluded that consequently
the investigation proceedings could have been terminated in February
1971 and in fact, so she alleged, no further investigations had been
carried out after February 1971.
A further enormous delay was according to the applicant, caused by the
re-transfer of her case to the Berlin prosecution authorities which
were no longer familiar with the files.
The applicant alleged that the evidence obtained in the investigation
proceedings at best justified a reasonable suspicion that she had
fraudulently rented cars and illegally carried a weapon but no more.
Not even the Public Prosecutor alleged that she had directly and
actively participated in the hold-ups. This confirmed, in her opinion,
that there was no proof that she knew about the hold-ups or approved,
and assisted in, them.
The applicant further denied that there was danger of her trying to
abscond. She stated that, according to the jurisdiction of the European
Court of Human Rights, the severity of a possible sentence to be
expected cannot alone justify the supposition that an accused would try
to abscond. There were no further circumstances so she stated, which
justified her detention. On the contrary, even if eventually she were
severely sentenced, the two years which she had so far spent in prison
pending trial would be credited towards the sentence and she had
therefore no reason to abscond.
The applicant finally alleged that the complexity of a case cannot
justify the keeping of a person in prison for years. She alleged that
her case is not so complex and could have been dealt with as speedily
as that of Ruhland and Mahler.
As regards domestic remedies, the applicant stated that while her case
was being dealt with by the Berlin courts she could not appeal to the
Federal Constitutional Court.
The applicant stated that she had never been convicted and sentenced
and still had the possibility to work in her profession. The longer,
however, she was kept in prison and in isolation, the more irreparable
the damage caused to her personality would be. She therefore requested
the Commission to direct the German authorities to release her
immediately.
She also requested the Commission to give her case precedence.
III. PROCEEDINGS BEFORE THE COMMISSION
On 9 February 1973 a group of three members of the Commission made a
preliminary examination of the applicant's complaints in accordance
with Rules 34 and 35 of the Commission's Rules of Procedure (former
version). The group's report was considered by the Commission on 11
July 1973 and the Commission decided that, in accordance with Rule 46,
2b of the Rules of Procedure, notice should be given to the Government
of the Federal Republic of Germany of the application and that the
Government should be invited to submit their observations in writing
on the admissibility of the application.
The Government's observations dated 11 October 1973, were received on
15 October 1973. The applicant's reply dated 26 October 1973 was
received on 30 October 1973.
The Commission again examined the application on 4 April 1974 and found
that the information contained in the case-file was still not
sufficient for it to reach a decision on admissibility. It therefore
decided, in accordance with Rule 46, 2 of the Rules of Procedure, to
invite the parties to make oral explanations on the admissibility at
a hearing which took place on 28 and 29 May 1974.
IV. SUMMARY OF SUBMISSIONS OF THE PARTIES
1. For a better understanding of the applicant's case the respondent
Government first gave an outline of the development and the criminal
activities of the Baader-Meinhof group of which the applicant is,
according to the indictment, a member.
After the disintegration of the anti-authoritarian student movement of
1967-68, some of their participants in the Federal Republic of Germany
thought they could bring about social changes by terror and violence
alone. On 2 April 1968 Andreas Baader, Gudrun Ensslin and two others
set fire to a department store in Frankfurt. On 31 October 1968 they
were sentenced for this offence to three years' imprisonment. In May
1970 Baader was liberated by armed force. In summer 1970 Baader, Ulrike
Meinhof, Horst Mahler and others went to Jordan in order to undergo a
training in a guerilla camp. They were instructed in the use of
firearms, close combat with knives and bayonets, as well as the
chemistry and techniques of explosives, as the Berlin Court of Appeal
found in its judgment of 26 February 1973 against Mahler.
In August 1970 the group, which had returned to Germany, began forming
an armed underground organisation, later called "Rote Armee Fraktion
(RAF)" (Red Army Fraction). The applicant is charged with having
participated in founding this organisation. Its aim, accepted by all
members, was to fight, like South American town guerrillas, with every
means against the social conditions in the Federal Republic of Germany.
The "Mini Manual of the Town Guerrilla" written by the Brazilian
guerrilla leader Carlos Marighella served as a guide for the formation
and equipment of the group. The author propagates a "merciless fight"
against the "ruling class" and give examples of town guerrilla attacks
on banks and other financial institutions, commercial and industrial
enterprises, as well as the kidnapping of well-known persons, sabotage
and terrorism, etc.
The actions and plans of the group conform to these ideas and
proposals. All the measures indicate the establishment of a dangerous,
secret organisation with criminal aspirations. This applies
particularly to the renting of secret accommodation where the members
could meet without danger. Further, the members' identities had to be
disguised. For this purpose code names and falsified identification
documents were used. In order to be able to carry out quick operation
the group obtained cars by stealing or fraudulently renting them. In
a workshop belonging to the Automechanic Grusdat - one of the
applicant's co-defendants - these cars were changed in appearance. On
29 September 1970 the group robbed simultaneously three banks and got
away with more than two hundred thousand German Marks.
On 8 October 1970 Horst Mahler, the applicant, and group members
charged jointly with her, namely Birgit Asdonk, Irene Goergens and
Ingrid Schubert, were arrested in a flat in Berlin which had been
rented by Ulrike Meinhof under a false name.
The group members, who had not been arrested, continued the group's
activities. Plans were made to liberate Mahler and the female members
of the group. For Mahler's liberation Grusdat planned to construct a
helicopter seating two persons. He did some preliminary work on the
project.
Precise preparations were made for breaking into a weapons depot of the
Federal armed forces. On 16 November 1970 and 21 November 1970
rubber-stamps, identity cards and passports were stolen from two
town-halls.
Also in 1971 and 1972 the group continued their activities, especially
by exploding bombs which resulted in deaths. In Hamburg, on 22 October
1971 a policeman, when arresting members of the group, and, on 3 March
1970, a CID officer were shot. In May 1970 six bombings are also
attributed to the group. It is not impossible that remaining members
of the group are still active today.
2. The respondent Government, in their written observations on
admissibility and at the hearing before the Commission then submitted
their reasons why the application should be declared inadmissible. They
first argued that the applicant had not exhausted domestic remedies.
It was admitted that the applicant had no remedy against the order of
the Berlin Court of Appeal. However, it was pointed out by the
Government that the applicant had failed to lodge appeals against,
inter alia, the warrant of arrest issued by the District Court of
Tiergarten on 9 October 1970 and the orders of the investigating judge
of the Federal Court. It was further pointed out that the applicant had
the possibility of lodging a constitutional appeal against the orders
of the Federal Court.
The Government argued that consequently the applicant had to a
considerable extent failed to file such domestic remedies as could
reasonably be expected of her and therefore had not exhausted all
domestic remedies in the sense of Article 26 of the Convention.
3. The Government also submitted that the application constituted
an abuse of the right to petition. It was stated in this respect that
the applicant's submissions were inconsistent with her behaviour during
the trial proceedings. If she was really concerned about speedy
proceedings, she would not during the trial, both inside and outside
the court-room, continuously and persistently have disturbed and
delayed the proceedings. The applicant showed that she intended to
upset the criminal proceedings in any way she possibly could. It was
apparently for this purpose that she introduced her application before
the European Court of Human Rights, namely in order to achieve her
unjustified release and thus to evade justice. The present application
therefore served the purpose of frustrating criminal proceedings
directed against her.
It was further pointed out in this respect that the applicant is
accused of being a member of a fanatic group aiming to change the
present social system by force, which first necessitated, according to
a statement made by Ulrike Meinhof, the destruction of state, economic
and social institutions. It was, however, not denied that the
protection provided by Articles 5 and 6 of the Convention applied
regardless of the crimes allegedly committed by any applicant invoking
these provisions.
4. The Government finally asked the Commission to reject the
application as being manifestly ill-founded. It denied that there had
been any unreasonable delay of the investigations against the applicant
or of her trial.
In this connection the Government made the following detailed
submissions:
(a) Strong suspicion of the applicant having committed the crimes of
which she was accused arose - if from nothing else - from the
circumstances of her arrest: whoever is arrested carrying arms and
found in the hide-out of a criminal organisation is strongly suspected
of having participated in the offenses committed by that organisation,
particularly the bank hold-ups. This applied all the more as a piece
of paper with the addresses of savings banks was found in the
applicant's handbag. Furthermore, she carried a loaded pistol which had
been fired when Baader was liberated. She also carried 50 DM bills in
packets as is usual with banks.
In the course of the proceedings the strong suspicion has not
disappeared but increased. The danger of the applicant's absconding if
she were released still existed up to the present day. Before her
arrest, the applicant may have lived in Berlin at an address she had
registered with the authorities and may have worked in the office of
the barrister who was now representing her in the proceedings. However,
this was only a cover for her activities as a member of the group. When
she was arrested she had false identity papers and keys to secret
accommodation of the group. As the group remained active even after her
arrest, going as far as considering plans for her liberation, it would
not have been justified to release her. Considering her ideology, which
is hostile to the law, as clearly appears from her conduct during the
trial, she would not have kept herself at the disposal of the police
for the trial but would have gone underground to continue her fight
against the "capitalist class".
(b) After the applicant's arrest the enquiries and investigations
were properly conducted.
The proceedings were not delayed except by the applicant herself who
refused to make any statement as to her identity and the charges laid
against her.
The investigation of the offenses was difficult because they were
cleverly planned and executed and because so many group members took
part in them. Extensive enquiries had to be made in Berlin and
North-Rhine-Westphalia.
It is true that on 20 December 1970 Ruhland was arrested and made a
comprehensive confession which to a certain extent facilitated the
investigations against the whole group. However, it is not correct
that, in the spring of 1971 after Ruhland's interrogation, the
investigations against the applicant could have been terminated.
Since the applicant herself made no statements, extensive, difficult
and time-consuming investigations were necessary, such as
interrogations of witnesses and the obtaining of expert opinions.
Besides the interrogation of Ruhland was in no way completed in
February 1971. As late as in October 1971 he was questioned about
motor-cars alleged to have been hired by the applicant.
Moreover, as regards Ruhland's credibility, it was important to await
the outcome of the criminal proceedings against him. He was convicted
by the Court of Appeal in Düsseldorf on 15 March 1972 inter alia of
aggravated robbery and participation in an criminal organisation.
Ruhland's confession and the results so far obtained in the
investigations had revealed that the activities of the group were very
dangerous and covered many parts of the Federal Republic of Germany.
The applicant's case, as well as the cases of other group members, were
therefore considered to be of special importance and had consequently
in accordance with Section 74 a (2) of the German Judicature Act (GVG),
obligatorily to be taken over by the Federal Attorney-General. The
German Government pointed out in this context that they had obtained
a written statement by the Federal Attorney-General denying the
applicant's allegation that it had from the beginning been the
intention to transfer her case back to the Public Prosecutor in Berlin.
This retransfer, as the Government emphasised, was only effected after
it had turned out in the course of the investigations that the
applicant's case was of lesser importance. Therefore, the proceedings
had to be retransferred in accordance with Section 42 a (4) of the
German Judicature Act.
The transfer of the applicant herself successively to several West
German prisons was explained to have been both in the interest of the
investigation and for the security of her detention.
The Government denied that the transfer to the Federal Attorney-General
and the retransfer of the applicant's case caused any delay. They
pointed out that, after the retransfer of the applicant's case, the
Senator for Justice assigned two prosecutors to deal with the case.
Although the results of the investigations now filled several files,
the indictment was already filed on 17 April 1972.
It consisted of a main part of 128 pages and an appendix of 55 pages.
It named 322 witnesses and 19 experts; besides this, numerous identity
cards, motor-vehicle registration cards, registration plates, rent
contracts for apartments and cars, keys, weapons and other items are
listed as evidence.
The Government concluded that about one and a half years of
investigations was not unreasonably long in view of the complexity and
difficulty of the case.
(c) It was also pointed out that, in order to speed up the
proceedings the prosecution dropped several charges, such as eight
counts of fraud, attempted fraud and forging of documents.
After the filing of the indictment the applicant had, in accordance
with Section 201 of the Code of Criminal Procedure, to be given the
opportunity to comment on the indictment. The delay for these comments
having expired, the Regional Court in Berlin admitted the indictment
by order of 30 June 1972, a decision which can only be considered to
have been taken quickly. After all, under Section 201 of the Code of
Criminal Procedure, the Regional Court of Berlin had to examine whether
the six accused were sufficiently suspected of having committed the
offenses with which they were charged.
(d) The trial which started on 24 April 1972 needed careful
preparation and, especially in view of the dangerousness of the
defendant and group members still at liberty, special security measures
had to be provided and structural work had to be carried out. The trial
was held in a specially protected court-room which had first been
prepared for the Mahler trial. For the trial against the applicant and
her five co-accused the glass protection of the dock had to be altered
because the proceedings involved not one but six defendants. The
Government pointed out that this was the only specially protected
court-room in Berlin.
It was first expected that the trial would last about nine months and
the administrative authorities provided two supplementary judges and
six supplementary lay judges in order to avoid possible delays, for
example in case of the sickness of a judge sitting at the trial. The
Government pointed out that the trial, which had now lasted eighteen
months, caused an unusual stress for judges and for the prosecution who
could take no leave during this time. Their families were constantly
under police protection. Their children had to be taken to school under
police protection. These inconveniences would have certainly been
avoided by the officials concerned had they had the possibility of
terminating the trial earlier.
All these necessary preparations explained why the trial could not
start before 24 November 1972.
(e) The trial itself had been conducted as speedily as possible. On
an average the court sits on two days a week.
It was, according to the Government, irrelevant that the trials of
Ruhland and Mahler began before that of the applicant. When prosecuting
a dangerous group consisting of many members, it was justified to
proceed first against a member who had confessed and then against one
of the group's leaders.
The trial was, according to the Government, on various occasions
disturbed and delayed by the applicant's own conduct as well as by the
conduct of her co-defendants: e.g. all the defendants had to be
identified by four witnesses because they even refused to identify
themselves; on 5 January 1973, the defendants - including the applicant
- disturbed the proceedings by making loud noises and shouting. They
were, therefore, removed from the court-room in accordance with Section
247 (2) of the Code of Criminal Procedure (StPO). On 19 January 1973
the four female defendants wanted to leave the court-room. Together
they knocked on the table and abused the Public Prosecutor. They were
therefore again removed from the court-room. On 9 February 1973
evidence could not be taken because the accused had to be examined by
an expert to see whether they were fit for trial in view of their
hunger strike. On 6 March 1973 the defendant Schubert made a
declaration manifesting all the defendants' approval of an armed attack
by the terrorist organisation, Black September, against an embassy in
Khartoum. The applicant also shouted "solidarity with the comrades of
Black September". On 16 March 1973 the applicant and the other
defendants again insulted the public prosecutors in the court-room and
threw cheese at them. On another occasion they made a ball-point pen
explode which they had stuffed with the sulphur taken from matches.
From 8 May 1973 to 28 June 1973 the applicant again participated in a
hunger strike. As a result the court sat only in the morning for two
or three hours because it was feared that the defendant would not be
fit to attend the trial during the whole day. On 22 June 1973 the
applicant again refused to attend the trial. She had therefore to be
taken handcuffed to the court-room. There she insulted the presiding
judge saying: "There is that swine again. We don't want this shit-show
any longer...". She was then excluded from the trial during the taking
of evidence.
Until 28 May 1974 the court say on 126 days during which 276 witnesses
and 22 experts were heard, of whom some were heard several times. In
order to speed up to the trial the prosecution renounced the hearing
of a hundred further witnesses. On 9 April 1974 the taking of evidence
was, with the agreement of the defence, terminated. The prosecution
then put their case and requested a sentence of 12 years' imprisonment
for the applicant. Thereupon the defence requested the trial court to
hear further 49 witnesses and one expert. Two of these witnesses were
heard. On 21 May 1974 the defence counsel began their pleadings and it
was expected, according to the Government, that a decision will be
given soon.
Apart from the conduct of the defendant, the original time-table of the
trial court was also dislocated for the reason that many witnesses did
not, for various reasons, appear on the dates fixed for their hearing.
The defence counsel also caused delays. For example, they challenged
(Ablehnungsanträge) judges or lay judges on eight occasions. All eight
motions were rejected as being unfounded although this had necessitated
time-wasting deliberations by the trial court. Five experts were
likewise challenged but only one of these motions was successful. It
also happened that defence counsel had to leave the proceedings earlier
than had been arranged, thus obliging the trial court to suspend the
proceedings. Furthermore, defense counsel made various other motions
and lengthy declarations which delayed the proceedings, e.g. they
requested a medical examination of their clients in order to find out
whether they were still fit to attend the trial.
The costs of the trial amounted, so far, to two million German Marks.
5. The applicant in her reply to the Government's written
observations and submissions at the oral hearing first repudiated the
respondent Government's argument that the conditions of Article 26 of
the Convention had not been satisfied by her. She pointed out that
detention pending investigation can be perfectly justified for a period
of six months or even one year. During this time there was no cause for
the detainee to exhaust all the remedies available to him against such
detention. Such remedies would obviously have little chance of success
and could therefore not be considered to be in the interest of a proper
administration of justice. If the period of remand in custody was
prolonged, however, it might cease to be compatible with the Code of
Criminal Procedure. In such a case the detainee was entitled to have
recourse to any effective legal remedy against the detention orders
concerning him. Once the domestic remedies had been exhausted, it
should then be possible to lodge an individual application.
6. The applicant then denied that she had done anything to justify
her being blamed for the protection of the proceedings against her. She
alleged that she had merely made use of her right not to make any
statements on the charge. The respondent Government's remaining factual
statements amounted in her opinion to unfair abuse.
In this respect she pointed out that it could be of no relevance to her
case that in the years 1971 and 1972 several people lost their lives
as the result of actions ascribed to the "Red Army Fraction". For one
thing, there was no proof that she was in any way connected with the
persons thought to be responsible for those actions. Further, account
should be given to the fact that, when those incidents took place, she
had already been in prison for more than one or even more than two
years.
The fact that at the time of her arrest she was in possession of a slip
of paper bearing the addresses of two savings banks' branch offices in
Berlin in no way proved that she participated in the planning and
execution of bank robberies. In fact the two addresses were of saving
banks where she had herself accounts.
She admitted that her conduct during the proceedings could not perhaps
be said to have been inspired by a positive attitude towards the law
but, considering what she had endured over the last three years, this
was in her opinion hardly surprising.
The applicant denied that there was at any time in the proceedings
strong suspicion of her having participated in the bank robberies. She
pointed out that the indictment was in this respect only based on the
alleged fact that, several months before her arrest, she had
fraudulently rented several cars two of which were allegedly used at
the bank robberies. There was, however, no evidence that she drove
either of these cars or that she was in any other way directly involved
in the bank robberies.
The applicant maintained that the investigation against her could have
been terminated in summer 1971, as it followed from the files that all
evidence which was later listed in the indictment had been collected
by then. She further pointed out that, in a report to the Federal Court
made in July 1971, the Federal Attorney-General stated that the
investigation would be terminated soon. Furthermore, she pointed out
that Ruhland's trial had already started on 18 January 1972 although
he was not only accused of the same offenses as herself, but of further
offenses committed after her arrest. The fact that his trial started
many months before her own trial could therefore, in her opinion, not
only be explained by Ruhland's confession. Also Mahler, who like
herself refused to make any statement, was brought to trial much
earlier, although he was arrested on the same day as she had been. The
applicant alleged in this respect that the indictment against Mahler
was 95% the same as her indictment. This proved that no further
investigation had been necessary against her than had been undertaken
in the case of Mahler.
The applicant denied that there had been any necessity to transfer her
case to the Federal Attorney-General. She pointed out that Mahler
himself had not been taken to West a German prison. She had been given
special treatment in West German prisons, as she was completely
isolated although she was never needed for the investigations which
were supposed to have been carried out in West Germany. The applicant
alleged that the transfer of her case and other cases to the Federal
Attorney-General was only effected because, in January 1971, bank
robberies took place in West Germany. Because of these robberies the
investigations of the police were centralised in the Federal criminal
office. These robberies and another incident, which took place later
in Frankfurt, were the true reason for the transfer of the cases to the
Federal Attorney-General as it was supposed that the Red Army Fraction
was involved. In her opinion, this did not, however, justify her
transfer because she was already in prison when these offenses were
committed. As regards the security measures which necessitated a
special preparation of the court-room, the applicant pointed out that
the court-room had already been prepared for the Mahler trial and was
ready long before her trial began. In addition, she stated that such
preparations could not justify a prolongation of her own detention.
As regards the trial proceedings, the applicant alleged that the
summoning of many witnesses was superfluous as it was known beforehand
that certain witnesses would not make any relevant statements, for
example, those witnesses who had already been summoned to appear at the
Mahler trial when they refused to answer questions from the court. The
applicant did not deny that she made objectionable remarks which led
to her exclusion from the trial. But she denied that this caused any
considerable delay and she stated, furthermore, that her behaviour was
provoked by the judicial authorities. For example, she stated that on
one occasion the president of the Trial Court ordered that all female
defendants should undergo a gynaecological examination before being
permitted to the court-room simply because they had once thrown cheese
at the members of the court. She alleged that the only factor which
could be attributed to her as having caused a delay was her state of
health which had deteriorated in consequence of her strict isolation
in the West German prisons. The applicant stated, however, that she did
not complain to the Commission about the conditions in the prison as
these conditions had in the meanwhile been improved and she saw no
longer any reason to raise this point as a separate complaint before
the Commission.
The applicant further denied that she caused delay by making
unnecessary and obviously unfounded motions. She pointed out that such
motions could be rejected by the court on the basis of the Code of
Criminal Procedure on the sole ground that they were obviously only
serving the purpose of prolonging the proceedings. However, the court,
as actually happened, took considerable time to deliberate on these
motions and this only proved that these motions were not obviously
unfounded.
V. THE LAW
The applicant's sole complaint is that the period of her detention on
remand constituted a violation of Article 5 (3) (Art. 5-3) of the
Convention which provides that:
"Everyone arrested or detained in accordance with the provisions of
paragraph 1 (c) of this Article (Art. 5-1-c) 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. Release may be conditioned by guarantee to
appear for trial."
1. The Commission has first considered the question whether the
applicant has exhausted all domestic remedies as is required by Article
26 (Art. 26) of the Convention.
The term "all remedies" in the text of this provision refers to the
case where the domestic law provides against some measure or decision
a single series of remedies at various levels, such as appeal to a
court of appeal, further appeal to a supreme court and, possibly, a
constitutional appeal. In such a case where there is a single remedy
it should be pursued up to the highest level. The position is not so
certain where the domestic law provides a number of different remedies.
In such cases the Commission tends to admit that Article 26 (Art. 26)
has been complied with if the applicant exhausts only the remedy or
remedies which are reasonably likely to prove effective (see e.g. the
decision on admissibility of application o. 2686/65, Yearbook, Vol. X,
page 495).
On the other hand, Article 26 (Art. 26) does not have the scope
attributed to it by the respondent Government in cases where the
domestic law provides a single remedy against a particular measure, but
allows the person in question to make use of this remedy as often as
he feels inclined and at intervals left entirely, or to a great extent,
to his discretion throughout the time the measure in question remains
in force. Such, in fact, is the position in the present case. Under the
rules of criminal procedure in the Federal Republic of Germany persons
in detention on remand may at any time apply for provisional release
(see Section 117 (1) of the Code of Criminal Procedure - StPO). The
Code of Criminal Procedure imposes no restrictions on the exercise of
this remedy. Nor, on the other hand, does it require the detained
person to make a minimum use of the remedy. Furthermore, the competent
six months, decide ex officio and at regular intervals whether that
detention should continue. There is no possibility of an appeal or a
constitutional appeal against such decision if, as in the present case,
it is given by the Berlin Court of Appeal. It follows that the
Commission cannot accept the respondent Government's submission that
the conditions of Article 26 (Art. 26) of the Convention are not met
simply because the applicant has not appealed against this or that
particular decision ordering her detention on remand or the
continuation of such detention. Nor can the Government rely on the fact
that the applicant has not taken advantage of the possibility
temporarily open to her of bringing the matter before the
Constitutional Court. In fact she was later deprived of this
possibility by the retransfer of her case to the West Berlin
prosecuting authorities.
It was sufficient for the purpose of Article 26 (Art. 26) of the
Convention that the applicant exhausted at any time she though fit the
domestic remedies existing at that time. This requirement is entirely
satisfied. Prior to the lodging of the present application with the
Commission on 9 October 1972, the Berlin Court of Appeal had, in three
decisions not subject to appeal, refused to order the applicant's
provisional release. The last of those decisions as taken on 6
September 1972.
2. The Commission next considered the respondent Government's
submission that the application was inadmissible under Article 27,
paragraph (2) (Art. 27-2), of the Convention as being an abuse of the
right of petition. The Commission does not accept this submission.
According to the Commission's case-law an abuse can be seen in the use
by the applicant of, e.g.:
- insulting remarks (see decision on admissibility of application No.
2625/65, Collection of Decisions, Vol. 28, page 26, 41);
- completely specious arguments (see decision on admissibility of
application No. 3141/67, Collection of Decisions, Vol. 27, page 117);
- false statements intended to mislead the Commission (see decision on
admissibility of application No. 2364/64 and others Collection of
Decisions, Vol. 22, page 103, 109);
- completely unfounded allegations whose purpose was to escape
consequences of a conviction (see decision on admissibility of
application No. 1270/61, Collection of Decisions, Vol. 8, page 97).
None of these grounds appear in the present case. It is true that the
applicant has, according to the undisputed statements made at the oral
hearing by the representatives of the respondent Government, behaved
in an objectionable manner at her trial. However, her submissions to
the Commission were not objectionable and her behaviour before the
Trial Court cannot be considered to constitute an element of abuse in
the context of her complaint, under Article 5 (3) (Art. 5-3) of the
Convention, that she was not brought to trial within a reasonable time.
The respondent Government also argued that the applicant was attempting
by every means to frustrate the prosecution directed against her and
that it was apparently for this purpose that she lodged an application
with the Commission, her intention being to obtain an unjustified
release as a means of escaping prosecution.
It is obvious that the danger of the prisoner absconding is one of the
principal justifications for her detention on remand. Nevertheless, the
existence of such a danger cannot justify the continuation of detention
beyond the reasonable time mentioned in Article 5 (3) (Art. 5-3) of the
Convention. Therefore, the applicant was not abusing her right of
petition in asking the Commission to examine the question whether the
period of her detention pending trial was reasonable within the meaning
of this provision.
The Commission finds therefore that the application cannot be declared
inadmissible as being an abuse of the right of petition under Article
27 paragraph (2) (Art. 27-2), of the Convention.
3. According to the case-law of the European Court of Human Rights
(see Wemhoff case, judgment of 27 June 1968, page 23), the period with
which Article 5 (3) (Art. 5-3) of the Convention is concerned starts
with a person's arrest and ends with the day on which the charge
levelled against him is determined by a court of first instance.
According to the respondent Government, the trial court's decision in
the applicant's case will be given in the near future, the taking of
evidence having been concluded and the prosecution having made their
final plea (Antrag).
The period in question consequently amounts to a little more than three
years and seven months. This is undoubtedly an exceptionally long
period of detention on remand. However, the length of detention on
remand is not by itself decisive in the context of Article 5 (3)
(Art. 5-3) of the Convention because the concept of a "reasonable time"
cannot be translated into a fixed number of months or years (see
European Court of Human Rights, Stögmüller case, judgment of 10
November 1969, page 40). The reasonableness of an accused person's
continued detention must rather be assessed in each case according to
its special features (Wemhoff case, ibid, page 24) and the Commission
has to judge whether the reasons given by the national authorities to
justify the applicant's continued detention were relevant and
sufficient to show that detention was not unreasonably prolonged (see
European Court of Human Rights, Neumeister case, judgment of 27 June
1968, page 37).
The German courts based their decisions, ordering the applicant's
original arrest and subsequently her detention, on the ground that
there was a danger of her absconding if she were left at liberty. They
pointed out in this respect that the applicant might expect a heavy
sentence and that, at her arrest, she was in possession of forged
papers and had rented an apartment under a false name. The latter
findings were not contested by the applicant before the Commission. At
the oral hearing it was furthermore mentioned by the Agent of the
respondent Government that other alleged members of the so-called
Baader-Meinhof group had succeeded in being released pending their
trial and had taken advantage of this opportunity to abscond. It was
further pointed out in this connection that Baader himself had already
once been liberated in 1970 by way of armed attack. These statements
were likewise not contested by the applicant's representatives who
denied, however, that there was danger of her absconding. It was
alleged that there was not enough evidence to convict the applicant of
the crimes of which she was charged and that consequently her sentence
would be in no relation to the length of her detention. Furthermore,
it was pointed out by the applicant that she had a profession and a
fixed residence.
The Commission does not find that the reasons given by the German
judicial authorities were invalidated by the applicant's submissions.
The Commission notes in this context that, when the applicant was
arrested together with other group members, she undisputedly carried
a loaded pistol and possessed forged papers. During her trial she
manifested her solidarity with the group, approved criminal acts of
other group members and also manifested her sympathy with a terrorist
organisation which had attacked an embassy. This attitude confirmed the
statements of the German judicial authorities and the Commission is of
the opinion that it was not possible for the German authorities to
obtain from the applicant valid guarantees which would have ensured her
appearance at the trial if she had been released. It holds therefore
that the arrest and detention were valid under Article 5 (1) (c)
(Art. 5-1-c) of the Convention.
The Commission could, furthermore, not find that the exceptional length
of the investigation and the trial was caused by the an objectionable
conduct of the case on the part of the German judicial authorities.
The Commission first notes in this respect that the investigation and
the trial did not only concern the applicant but also several
co-accused whose carefully planned activities were not restricted to
West Berlin but covered also different parts of Western Germany. The
result of the investigation filled several files. Originally the
prosecution had named more than 300 witnesses and more than 20 experts
to be heard by the trial court. There can therefore be no doubt that
the applicant's case was of an exceptional complexity, and that the
investigations from 8 October 1970 until the filing of the indictment
on 17 April 1972. These investigations may have been facilitated to a
certain extent by the confession of Ruhland but, on the other hand, the
prosecution could not base its indictment solely on the evidence given
by a single group member but had to find out whether Ruhland's
statements, which incriminated other group members including the
applicant, were correct.
The Commission also does not find that the transfer of the applicant's
case to the Federal Attorney-General caused any substantial delay. This
transfer was not an arbitrary act designed in any way to delay the
investigation. It was, on the contrary, necessitated by the Federal
system which splits up competencies of investigation and prosecution
between Federal authorities, on the one hand, and authorities of the
Provinces (Lander) on the other hand. The Federal Attorney-General was
bound to take over the applicant's case when, at the beginning of the
investigations, it appeared that her case was of special importance.
It also seems to be obvious that it only helped to speed up the
investigations that they were centralised in West Germany and carried
out by a Federal authority. This was justified because the activities
of the group covered several parts of West Germany, including West
Berlin. The retransfer of the applicant's case to the prosecution
authorities in West Berlin also in the opinion of the Commission, did
not cause any substantial delay when account is taken of the fact that
the indictment against the applicant was filed on 17 April 1972. This
was only two and a half months after the case had again been taken over
by the Berlin prosecution authorities on 1 February 1972. It is true
that the indictment against Horst Mahler was already filed on 24
January 1972 and the Ruhland case took even less time, but the
difference up to the filing of the indictment in the Mahler case was
slight and due to the different jurisdictions dealing with the case.
The subsequent difference between the length of the respective
proceedings is due, as is explained below, to the conduct of the
present applicant and her co-defendants. It was also to be noted that
Mahler and Ruhland played other roles than the applicant in the
carrying out of the criminal activities of the group and that it might
have been easier to collect evidence against them. Furthermore, Ruhland
made a confession while the applicant refused to make any statement
with regard to the charges laid against her.
The length of the period between the filing of the indictment on 17
April 1972 and the beginning of the trial, 24 November 1972, is also
sufficiently explained. First, the applicant had, according to German
law, to be given a certain time to file her comments concerning the
indictment and to decide whether it was to be admitted, which in fact
it was on 30 June 1972. Furthermore, the trial court had to prepare the
trial proceedings and the administrative authorities had to prepare
security measures as concerned the court-room, access to the court-room
by the defendants and the public, etc. These security measures were
taken in the applicant's own interest as well as in the interest of all
other persons attending the trial. The Commission is convinced that
such measures were in fact necessary in view of bombing plots which
undisputedly occurred in 1971 and 1972 causing the death of several
people and which where attributed to members of the Baader-Meinhof
group. In this context it has again to be noted that the group member
Baader had in 1970 been liberated by way of an armed attack.
As to the trial itself the applicant's counsels admitted themselves
that it was of such complexity as to make it nearly impossible for
someone not having participated in it to find out what caused the
delays in this trial. The applicants' counsels even argued that it was
legitimate for the defendants to disturb the proceedings in order to
be excluded from it as the court would otherwise not have respected
their desire not to attend the trial.
It has in fact to be noted that the applicant and her co-accused
contributed a great deal to the delay of the proceedings by refusing
to answer questions, behaving improperly, throwing objects at judges
or the representatives of the prosecution, making insulting remarks,
going on a hunger strike, and even provoking an explosion of a
ball-point pen filled with sulphur taken from matches.
The defence also caused a delay in the proceedings. For example, eight
motions (Ablehnungsanträge) to replace judges or lay judges (Schöffen)
necessitated interruptions of the trial before being rejected as being
unfounded. Although the taking of evidence had been terminated and the
trial had come to its final phase, i.e. the conclusions of the
prosecution and the defence, the defence requested the trial court in
April 1974 to hear 49 further witnesses and one expert.
On the other hand, it has to be noted that the prosecution dropped
several charges against the applicant and renounced the hearings of
about 100 witnesses in order to speed up the proceedings. The
administrative authorities provided at the beginning of the trial two
supplementary judges and six supplementary lay judges in case the
judges or lay judges sitting at the trial had to be replaced. This
measure also proves the intention of the Berlin authorities to carry
on the trial without unnecessary delay. The trial court obviously took
every precaution to offer the applicant and the other defendants a fair
trial and this necessarily resulted in a delay of the proceedings as
all motions of the defence had to be carefully considered. In addition
many witnesses, as well as other evidence, had to be heard or to be
considered in order to decide whether the applicant was guilty or not.
In the light of all these circumstances the Commission finds that there
is no appearance of a violation of Article 5 (3) (Art. 5-3) of the
Convention.
It follows that the application is manifestly ill-founded within the
meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.
For these reasons, the Commission therefore DECLARES THIS APPLICATION
INADMISSIBLE