AS TO THE ADMISSIBILITY OF
Application No. 20695/92
by Josef NELLES
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 6 September 1995, 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
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
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 2 July 1992 by
Josef NELLES against Germany and registered on 4 September 1992 under
file No. 20695/92;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 31 March 1993 to communicate the
application;
- the observations submitted by the respondent Government on
26 August 1993 and the observations in reply submitted by the
applicant on 11 January 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen, born in 1956 and was detained
on remand at the prison in Düsseldorf when he lodged the application.
He is represented by Mrs. S. Oster, a lawyer practising in Essen.
The facts as submitted by the parties are as follows:
The applicant was arrested on 13 June 1991 and remanded in prison
on suspicion of murder and other crimes.
On 17 December 1991 the Düsseldorf Court of Appeal
(Oberlandesgericht) ordered the detention on remand to continue. The
Court stated that in view of the nature of the crime it was not
necessary that there existed danger of absconding or of collusion. It
further considered that the length of the detention was not
disproportionate but justified in view of the difficulties and
complexity of the investigations.
On 7 February 1992 the Federal Constitutional Court
(Bundesverfassungsgericht) quashed the Court of Appeal's decision and
sent the case back for reconsideration on the ground that the reasons
stated in the appellate court's decision were insufficient.
On 25 February 1992 the Court of Appeal again decided that the
applicant's detention on remand should continue. This time the Court
pointed out that the confession of a co-accused T. had been
corroborated by other witnesses such as P. and the applicant's wife
U.N. The Court furthermore pointed out that in view of the severe
sentence which the applicant had to expect and also in view of the
possible revocation of a conditional release granted in another matter,
there was a danger that the applicant would abscond. Finally the Court
stated that the purpose of detention on remand could not be realised
by less stringent measures. Difficult detective investigations were
necessary as the applicant denied his participation contrary to the
statements of the co-accused T. In these circumstances the public
interest in solving the crime and prosecuting the perpetrators
prevailed over the applicant's right to liberty.
A constitutional complaint against this decision was rejected by
a panel of three judges of the Federal Constitutional Court on
11 May 1992 as being clearly ill-founded. It is stated in the
Constitutional Court's decision that the reasons given in the Court of
Appeal's order were unobjectionable.
On 11 May 1992 an indictment dated 17 April 1992 was submitted
to the competent Düsseldorf Regional Court (Große Strafkammer des
Landgerichts). The applicant and his half brother R.T. were accused
of having robbed and murdered Mrs. F. in her house. His friend L. was
accused of having aided and abetted.
On 9 June 1992 the Court of Appeal in Düsseldorf again ordered
that the applicant's detention on remand should continue. This time
the Court stated that there was no violation of the right to a speedy
trial as the investigations were complex and difficult necessitating
the hearing of a great number of witnesses and other criminal
examinations. Therefore the indictment could not have been terminated
before 17 April 1992. In addition the Court referred to the reasons
already stated in the order of 25 February 1992.
On 29 June 1993 R.T.'s defence counsel requested that his client
be examined by a psychiatric expert.
On 17 July 1992 the trial court ordered that both the applicant
and R.T. be examined by an expert.
On 23 July 1992 the Federal Constitutional Court again rejected
another constitutional complaint lodged by the applicant. This time
the Constitutional Court underlined however that the Court of Appeal,
when examining the necessity of the applicant's detention on remand,
would have to take into account that the weight of the applicant's
request for release increased with the length of his detention on
remand. Therefore it was not very satisfactory that the Court of
Appeal limited itself to saying that the indictment had been submitted
on 17 April 1992 without carefully examining what happened thereafter
in the proceedings against the applicant. The Court of Appeal was
consequently instructed to examine at the next occasion whether any
delays had occurred in the proceedings and whether such delays had
subsequently been corrected by particular diligence.
On 23 July 1992 applicant's counsel requested that the indictment
against his client not be admitted. At the same time he challenged the
judges of the trial court. The observations of the challenged judges
were communicated to the counsel on 7 August 1992 and a reply was
submitted on 14 August 1992. On 19 August 1992 the motion of challenge
was rejected. An appeal against this decision was dismissed on
17 September 1992.
Having been admonished by the trial court, the expert wrote on
18 October 1992 that his work had been delayed because he had been
awaiting a report from another expert who had examined R.T. in 1990 in
connection with other criminal proceedings. He expected however to
submit his report at the latest at the end of November 1992.
On 10 December 1992 Mrs. S.O. advised the trial court that she
was the applicant's defence counsel and requested to be appointed ex
officio counsel. On 15 December 1992 she was given the opportunity to
inspect the files and on 18 January 1993 she was appointed as official
defence counsel.
On 15 January 1993 the expert, being admonished by the trial
court, informed the court that for private reasons his work had been
delayed. He further stated that he had visited the applicant in prison
on 18 September 1992 but the applicant had refused to co-operate. He
could however only prepare an expert opinion if the applicant replied
to his questions. On the other hand he had prepared the expert opinion
on the other accused, R.T.
On 20 January 1993 the court of appeal again ordered that the
applicant's detention on remand continue. The court considered that
the length of the proceedings and the applicant's detention was not
excessive taking into account that an expert opinion was still
outstanding. While the expert opinion concerning the co-accused R.T.
was expected to be available within ten days the applicant had,
contrary to his own allegations, refused to undergo a medical
examination when he was visited in prison by the expert in October
1992. The presiding judge had furthermore stated that the trial was
scheduled to begin in March 1993.
On 19 February 1993 the medical expert opinion on R.T. was
submitted to the trial court.
On 8 March 1993 the indictment was admitted and the trial fixed
to take place on 13, 14, 18 and 21 May 1993. The trial court also
ordered that the applicant's detention on remand continue.
On 14 May 1993 the trial court set aside the applicant's warrant
of arrest as the co-accused had admitted having robbed and murdered
Mrs. F. alone.
On 21 May 1993 the Düsseldorf Regional Court convicted R.T. and
imposed on him a life sentence. The applicant and L. were acquitted
and granted compensation for their detention on remand. According to
the findings of the court R.T., a person with an extensive criminal
record, had absconded from prison and found refuge in the applicant's
apartment. The applicant also had a criminal record, in particular
several cases of theft but the court did not exclude that R.T. had
exerted pressure on the applicant in order to be offered shelter by
him. While during the investigations R.T. had alleged to have robbed
Mrs. F. together with the applicant and that the applicant had
committed the murder, he admitted at the trial that he had acted alone
and had incriminated the applicant as an act of revenge.
COMPLAINTS
The applicant is of the opinion that his detention on remand
exceeded a reasonable time. He invokes violations of Articles 5 para.
3 and 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 July 1992 and registered on
28 September 1992.
On 31 March 1993 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48 para. 2
(b) of the Rules of Procedure.
The Government's written observations were submitted on
26 August 1993. The applicant replied on 11 January 1994.
On 17 May 1994 the Commission granted the applicant legal aid.
THE LAW
The applicant complains of the length of his detention on remand
which began on 13 June 1991 and ended on 14 May 1993, i.e. one year and
eleven months. He considers in particular that the trial court should
have taken measures to oblige the psychiatric expert to submit his
request on time or should have charged another expert. The applicant
invokes Article 5 para. 3 (Art. 5-3) and Article 6 para. 1 (Art. 6-1)
of the Convention.
The Commission considers that this complaint falls to be examined
under Article 5 para. 3 (Art. 5-3) only.
The respondent Government point out that the applicant will
receive compensation for his detention on remand and question whether
in these circumstances he can still be considered to be a victim of the
alleged violation. In any event the Government consider that the
length of the detention was justified in the circumstances of the case
and given the complexity of the matter.
a) The Commission first observes that payment under domestic law of
compensation for detention on remand which turns out to have been
unjustified does not constitute reparation for an alleged violation of
Article 5 para. 3 (Art. 5-3) on account of an excessive length of such
detention (cf. Eur. Court H.R., Tomasi judgment of 27 August 1992,
Series A no. 241, p. 34, paras. 79-81).
b) The Commission recalls that it is in the first place for the
national judicial authorities to ensure that, in a given case, the pre-
trial detention of an accused person does not exceed a reasonable time.
To this end they must examine all the facts arguing for and 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 applications for 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 decide whether or not there has been a
violation of Article 5 para. 3 (Art. 5-3) of the Convention (cf. Eur.
Court H.R., Neumeister judgment of 27 June 1968, Series A No. 8, p.37,
paras. 4-5).
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 (cf. Eur. Court H.R., Stögmuller judgment
of 10 November 1969, Series A No. 9, p. 40, para. 4).
The grounds invoked by the national judicial authorities may be
sufficient to justify keeping a person in detention pending trial but
with time they will diminish in pertinence when balanced against the
right to liberty guaranteed by Article 5 (Art. 5) of the Convention to
the person provisionally detained, and even where such grounds are
"relevant" and "sufficient" the Convention organs must ascertain
whether the competent national authorities displayed diligence in the
conduct of the proceedings (cf. Eur. Court of H.R., Letellier judgment
of 26 June 1991, Series A No. 207, p. 18, para. 35)
c) As to the reasons given by the domestic authorities the
Commission considers that they justified the continued detention in
view of the initial evidence against the applicant which strengthened
the suspicion against him. Also, the fact that the applicant had to
expect a severe sentence and in addition risked the revocation of a
conditional release granted in another matter could reasonably lead the
authorities to assume that there was danger of absconding. The
Commission further notes that the Court also considered the possible
use of less stringent measures. In these circumstances the Commission
is of the opinion that the present matter is distinguishable from the
Yagci and Sargin case which related to a comparable period of detention
on remand on account of however charges of a different nature (Eur.
Court H.R., judgment of 8 June 1995, Series A no. 319).
d) As to the handling of the case by the authorities the Commission
notes that the applicant himself has not alleged any particular
circumstances tending to show that the authorities delayed the
investigations. In fact the matter has been of a complex nature given
that difficult detective investigations were necessary according to the
uncontested finding of the Court of Appeal. It is true that the
psychiatric expert exceeded the time-limits within which he was
supposed to submit his report. However, in view of the applicant's
refusal to co-operate and the necessity to obtain a prior expert
report relating to the co-accused R.T., the delays in the preparation
of the expert opinion are sufficiently explained. The Commission
cannot therefore in the circumstances find that the authorities did not
actively pursue their investigations.
e) Assessing the period in question generally the Commission finds
in view of the foregoing that the period of detention on remand does
not appear to be unreasonable so as to amount to a possible violation
of Article 5 para. 3 (Art. 5-3) of the Convention. The Commission also
notes in this context that the trial court ordered the applicant's
release and also granted him compensation immediately after R.T.'s
confession that he committed the murder alone.
It follows that in these circumstances the application has to be
rejected as being manifestly ill-founded in accordance with Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy