AS TO THE ADMISSIBILITY OF
Application No. 11755/85
by Walter STOCKE
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private on
9 July 1987, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 September 1985
by Walter STOCKE against the Federal Republic of Germany and registered
on 23 September 1985 under file No. 11755/85;
Having regard to:
- the first report of March 1986 provided for in Rule 40 of the
Rules of Procedure of the Commission;
- the Commission's decision of 9 May 1986 to bring the
application to the notice of the respondent Government and
invite them to submit written observations on its admissibility
and merits;
- the observations submitted by the respondent Government on
21 July 1986 and the observations in reply submitted by the
applicant on 14 October 1986;
- the second report of November 1986 provided for in Rule 40 of
the Commission's Rules of Procedure;
- the Commission's decision of 4 March 1987 to invite the
parties to a hearing on the admissibility and merits of the
application;
- the submissions made by the parties at the hearing on
9 July 1987;
Having deliberated;
Decides as follows:
THE FACTS
The facts, which do not appear to be in dispute between the
parties, may be summarised as follows:
The applicant is a German citizen, born in 1926. When lodging
his application with the Commission, he was detained in prison at
Saarbrücken. Before the Commission he is represented by
Mr. T. Vogler, a law professor at Giessen.
In June 1975, subsequent to the bankruptcy of his construction
firm, criminal investigations were instituted against the applicant on
the suspicion of fraud and fraudulent conversion. In July 1975
investigations were also started on the suspicion that the applicant
had committed tax offences. On 25 March 1976 the Ludwigshafen
District Court (Amtsgericht), in the latter proceedings concerning tax
offences, issued a warrant of arrest against the applicant. From
26 March until 9 July 1976 he was in detention on remand. The
execution of the warrant of arrest was then suspended. As the
applicant did not respect the conditions under which he had been
released the execution of the warrant of arrest was again ordered in
November 1976. To avoid his arrest the applicant absconded abroad.
He later lived in Strasbourg, France.
In October 1978 the applicant was informed by his former
colleague Mr. W that a certain Mr. K who, according to the applicant,
collaborated from the very beginning with the German authorities was
organising a project to build a hotel in Spain. Subsequently there was
a meeting in Luxembourg between the applicant and K as well as further
persons supposed to participate in the project.
Two weeks later, a meeting was arranged for 7 November 1978 in
Strasbourg to conduct negotiations with an interested party. However,
on 7 November 1978 the latter had not come to Strasbourg. K stated
that the person concerned was in Luxembourg and that a private
aeroplane was ready to fly there. The applicant, together with K,
boarded the aeroplane, which belonged to a charter company, had German
registration plates and was piloted by M and ME. At 19.50 hours the
aeroplane made a stop-over at Saarbrücken- Ensheim airport. The
pilots indicated that the air extraction duct of the engine had become
covered with ice. Air traffic control in Saarbrücken had been
informed and had therefore alerted the fire brigade at the airport.
The applicant was arrested by the Saarbrücken Police, which
assisted the Kaiserslautern Police, at the airport on the basis of the
arrest of warrant issued by the Ludwigshafen District Court in March
1976. The applicant was then detained on remand.
On 2 April 1979 the Kaiserslautern Public Prosecutor's Office
(Staatsanwaltschaft) preferred the indictment against the applicant.
On 15 May 1979 the applicant laid information against K for
deprivation of liberty and subsequently also against several
policemen and unknown persons. The Zweibrücken Public Prosecutor's
Office instituted preliminary investigations against K, the pilots M
and ME as well as the policemen involved in the applicant's arrest.
On 24 September 1979 the Prosecutor's Office decided to discontinue
the investigation proceedings. The facts alleged by the applicant
were not considered to constitute a deprivation of liberty.
On 25 October 1979 the applicant's trial opened before the
Kaiserslautern Regional Court (Landgericht).
In September, October and November 1979 the public prosecutors
from the Kaiserslautern Public Prosecutor's Office all declared in
official statements that they had only learned of the applicant's
return from France on 8 November 1978 after the applicant had already
been taken into custody on remand. In official statements dated
October 1979 the police officers from the Ludwigshafen Police declared
that the Kaiserslautern Police had requested their assistance to arrest
the applicant on the morning of 7 November 1979 and that the police
officer Kl had, on request, declared to act in accordance with the
competent Public Prosecutor's Office.
On 5 February 1980 the Zweibrücken Court of Appeal (Oberlandes-
gericht), upon the applicant's appeal concerning the decision of
24 September 1979 to discontinue investigation proceedings, ordered
the Zweibrücken Director of Public Prosecutions (Generalstaatsanwalt)
to investigate the matter further. In February and March 1981 the
police officers Kl, H and KE were heard on the charges against them.
They all refused to give evidence.
On 17 March 1981 the Kaiserslautern Regional Court, in the
criminal proceedings against the applicant, ordered his continued
detention on remand. The applicant's appeal was dismissed by the
Zweibrücken Court of Appeal on 16 April 1981. The applicant lodged a
constitutional complaint (Verfassungsbeschwerde) relating to his
continued detention on remand and to the pending criminal proceedings
against him. He submitted that the German police had unlawfully
brought him from France to the Federal Republic of Germany and that
this barred his prosecution. On 26 August 1981 the Federal
Constitutional Court (Bundesverfassungsgericht) refused to admit the
applicant's constitutional complaint on the ground that it offered no
prospect of success. The Court found in particular that the applicant
could only complain of the trial after a final decision had been taken
in these criminal proceedings. As regards the applicant's complaint
of his continued detention on remand the Court observed that the
applicant's allegations concerning his return from France to the
Federal Republic of Germany had not yet been examined by the trial
court.
On 23 September 1981 the Zweibrücken Director of Public
Prosecution dismissed the applicant's further request of May 1981 to
proceed against several public prosecutors and police officers
involved in his return from France. The Director assumed from the
concurring statements of the public prosecutors concerned that these
persons were not aware of any intention to abduct the applicant from
abroad to Germany by aeroplane. He found no reason to doubt the
correctness of these official statements.
On 4 February 1982 the applicant was convicted by the
Kaiserslautern Regional Court of fraud in two cases one of which
concomitant with incitement to breach of trust, and of tax evasion
(Steuerhinterziehung) in three cases, each concomitant with a
violation of the statutory obligation to keep books (Buchführungs-
pflicht). He was sentenced to six years' imprisonment.
The judgment, comprising 399 pages, states, inter alia, that
contrary to the applicant's arguments the prosecution was not barred
by the alleged fact that the applicant was lured to the Federal
Republic by a police conspiracy. It is pointed out that the applicant
was arrested on the territory of the Federal Republic on the authority
of a valid and lawful warrant of arrest. In so far as the applicant
had been lured into the Federal Republic this "private kidnapping"
(private Entführung) did not render his arrest unlawful as the
subsequent approval by the authorities of such kidnapping was not an
unlawful act contrary to principles of international law.
The Court further pointed out that contrary to the applicant's
allegations the Public Prosecutor's Office in Kaiserslautern had,
according to official statements (dienstliche Erklärungen) made by its
Director, its Head of Division and the Prosecutor dealing with the
case, neither instigated the alleged kidnapping nor known of it. The
Court added that it did not consider it necessary to investigate the
matter further because even assuming the applicant's allegation was
true that K had acted under the instruction of the German police
authorities and had carried out the kidnapping with their support this
would not affect the jurisdiction of the German court. If the
French-German extradition treaty or French territorial sovereignty had
been violated, this was a matter of international law affecting the
rights of a State but not the rights of the individual concerned. It
would have been the right of France to protest against the alleged
violation and to request reparation for it. However, France had not
done so. On the contrary the Strasbourg Public Prosecutor (procureur
de la République) discontinued proceedings instituted at the
applicant's request (Anzeige) stating that no punishable act had been
committed on French territory (... das Vorliegen einer strafbaren
Handlung auf französischem Boden verneint und die Anzeige zu den Akten
gelegt). On the same day the applicant was released from detention on
remand.
On 10 November 1982 the Zweibrücken Public Prosecutor's Office
preferred an indictment against the two pilots, M and ME, as well as
against three police officers - Kl, H and KE - for the offence of
being an accessory to unlawful deprivation of liberty. The criminal
proceedings against K, who was already under investigation concerning
several offences of fraud, were provisionally discontinued on the
ground that K had gone abroad and the Austrian Federal Ministry of
Justice, in a letter of 12 August 1982, had refused extradition in
this respect. K was in detention on remand from August 1982 until
July 1983. The warrant of arrest was then suspended and, inter alia,
a duty of reporting imposed. However, K disappeared. An international
warrant of arrest was issued in connection with the proceedings
concerning the charges of fraud.
On 26 July 1983 the Frankenthal Regional Court decided not to
open main proceedings against the five accused, M, ME, KI, H and KE,
on the ground that there was no sufficient suspicion.
The respective complaints of the Public Prosecutor's Office
and the applicant were dismissed by the Zweibrücken Court of Appeal on
6 April 1984. The Court found that the pilots would have to be
acquitted because their defence that they were not aware of K's plan
could not be refuted. It further stated that any suspicion that the
accused police officers might have committed an offence was not
sufficient for a conviction. The Court considered that the witness Ku
who had alleged that there had been collaboration between K and the
police in order to arrange the applicant's return from abroad was not
credible. It assumed that Ku, who had himself been a police informer,
wanted to take his revenge. In the circumstances of the case it was
possible that the three officers had been informed by K that the
applicant would be landing at Saarbrücken airport on 7 November 1978
and could be apprehended there. However, it could not be shown that
they knew that the applicant was to be tricked into boarding the
aeroplane and thus be trapped and brought to Saarbrücken airport
against his will.
On 25 July 1984 the Federal Court of Justice (Bundesgerichtshof),
in proceedings concerning the applicant's appeal on points of law
(Revision) against the Regional Court's judgment of 4 February 1982,
had the witness Ku again examined with regard to the applicant's
allegation that his return to the Federal Republic of Germany was
performed by a police conspiracy. On 2 August 1984 the Court rejected
the applicant's appeal on points of law. It found in particular that
the applicant's allegation that he had been kidnapped on French
territory did not bar his criminal prosecution in the Federal Republic
of Germany. The Court first pointed out that the applicant did not
belong to the circle of persons enjoying immunity. The jurisdiction of
German courts would only have been put in question had the French
Republic requested reparation for an alleged violation of its
territorial sovereignty or for an alleged violation of the
French-German extradition treaty. However, although the competent
French authorities had been informed about the applicant's allegations
by his counsel no such requests had been formulated.
On 17 July 1985 a group of three judges of the Federal
Constitutional Court (Bundesverfassungsgericht) rejected as offering
no prospects of success the applicant's constitutional complaint
against the aforementioned decisions by the criminal courts. In its
decision the Constitutional Court stated inter alia that there existed
no general rule in international law according to which prosecution of
a person was barred in a State to whose territory the person concerned
had been taken in violation of the territorial sovereignty of another
State. Citing international case law (namely: U.S. Court of Appeal,
8.1.75, U.S. ex rel Lujan v. Gengler, AJIL 69 , p. 895 et seq.;
Jerusalem District Court, 15.12.61, Eichmann case, ILR 36 , p.
57 et seq.; U.S. Supreme Court, Ker v. Illinois, 119 US 436 )
the Constitutional Court stated that according to international
practice courts would in general only refuse to assume jurisdiction in
case of a kidnapped accused if another State had protested against the
kidnapping and had requested the return of the accused. Even though
there also existed decisions expressing the opinion that the
kidnapping of an accused could bar prosecution in the State the
kidnapped person has been taken to there was no established practice
of the like in international law.
Furthermore there existed no general rule in international law
according to which prosecution of a person was barred because
that person had been taken to the prosecuting State in violation of an
extradition treaty with another State.
The Federal Constitutional Court further stated that although
the applicant had unsuccessfully laid charges of kidnapping the
Federal Court nevertheless had also dealt with and correctly denied
that prosecution against the applicant had to be considered barred on
the assumption that his kidnapping involved the criminal
responsibility of German public officials. So far a bar to
prosecution had been considered only in cases of inordinate length of
proceedings and of incitement by an agent provocateur to commit an
offence. Even if kidnapping was likewise to be considered as a
possible bar to prosecution this could be assumed only in exceptional
cases but not in the applicant's case. Even assuming that the
applicant had been taken to the Federal Republic by subterfuge and not
by physical force. He had been arrested by the German police on
German and not foreign territory. His arrest had been based on a
lawful and valid warrant of arrest. Any involvement of public
officials in the alleged kidnapping related, according to the findings
of the Public Prosecutor, only to unauthorised activities of lower
police officers not involving responsibility of superior authorities.
In these circumstances there was nothing which would have barred the
proceedings against the applicant.
Finally the Constitutional Court pointed out that the
applicant had had no reason to trust that in France he was safe from
prosecution in the Federal Republic because his extradition was,
despite the fact that the main charges against him were of tax law
character, not excluded from the beginning.
The applicant served the remaining part of two thirds of his
sentence of imprisonment from 10 June to 6 December 1985, the further
third was suspended on probation.
COMPLAINTS
The applicant considers that, in view of the manner in which
he was brought from France to the Federal Republic of Germany, his
arrest and subsequent imprisonment constituted unlawful arrest and
detention in breach of Article 5 para. 1 of the Convention.
Furthermore he complains under Article 6 para. 1 of the Convention
that the trial against him was unfair on the ground that the German
courts did not consider his kidnapping as a bar to his prosecution and
conviction in the Federal Republic of Germany.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 September 1985 and
registered on 23 September 1985.
On 9 May 1986 the Commission decided to invite the respondent
Government to present observations on the admissibility and merits of
the application. The Government's observations dated 21 July 1986
were received on 24 July 1986. The applicant submitted his reply,
after an extension of the time-limit, on 9 October 1986.
On 4 March 1987 the Commission decided to invite the parties
to a hearing on the admissibility and merits of the application.
At the hearing which was held on 9 July 1987 the parties were
represented as follows:
The respondent Government
Mrs. Irene Maier Ministerialdirigentin, Federal Ministry of
Justice, Agent
Mr. Heinrich Gauf Generalstaatsanwalt, Directorate of Public
Prosecutions of Zweibrücken, Adviser
Mr. Jens Meyer-Ladewig Ministerialrat, Federal Ministry of Justice,
Adviser
The Applicant
Mr. Theo Vogler Professor, Counsel
The applicant was also present.
SUBMISSIONS OF THE PARTIES
A. The respondent Government
I. As to the facts
The respondent Government submit that after the applicant
absconded abroad the competent German authorities did not know his
whereabouts. On 3 November 1977 the Kaiserslautern Public
Prosecutor's Office asked the Federal Office for Criminal
Investigations (Bundeskriminalamt) for an international search. The
Prosecutor's Office submitted that the applicant was presumably in
Switzerland and occasionally in France. Having regard to the relevant
laws on extradition the international search should be limited to
France. The Government observe that, according to the Extradition
Treaty between the Federal Republic of Germany and France, extradition
of a person charged with tax offences is possible insofar as the
Governments agree in the case concerned.
On 27 October 1978 the Kaiserslautern Public Prosecutor's
Office renewed its request for an international search.
The Government maintain that it is doubtful and, in any case,
not proved that officers of the Ludwigshafen Police or public
prosecutors were involved in K's plan and the action taken to bring
the applicant back to the Federal Republic of Germany. The
Ludwigshafen Police had only on the morning of 7 November 1978
received a telephone call from K that the applicant would arrive in
Saarbrücken during the day. They were not informed about how and from
where the applicant would come. In a second telephone call K informed
the police that the applicant could be found in the evening at the
Saarbrücken airport. The police officers Kl, H and KE then asked the
Saarbrücken Police for assistance and went to Saarbrücken to
participate in the arrest. The Ludwigshafen Public Prosecutor's
Office was only informed about the applicant's arrest on the morning
of 8 November 1978.
II. As to Article 26 of the Convention (six months' rule)
In the Government's view the applicant's complaint that his
arrest on 7 November 1978 violated Article 5 para. 1 (c) of the
Convention is inadmissible because it was submitted out of time. The
applicant should have submitted this complaint within the six months'
time-limit under Article 26 - running from the date of the decision by
which his custody complaint was dismissed. The Government consider
that, although in fact the question of the applicant's abduction was
of relevance in the further criminal proceedings on the merits, he
could, during his detention on remand, not be sure that the issue
would be dealt with in the later proceedings. The Government
furthermore contend that even if in view of the continuing effect of
this arrest the release from custody on remand on 4 February 1982 is
considered as relevant for the time-limit (No. 8130/78, Eckle v. the
Federal Republic of Germany, Dec. 10.5.79, section V 3) the complaint
contained in the application of 20 September 1985 was introduced out
of time.
III. As to Article 5 para. 1 of the Convention
The Government contend that the applicant was lawfully
arrested and detained in conformity with Article 5 para. 1 (c) of the
Convention.
The applicant was arrested by German police officers on German
territory on the basis of a valid judicial warrant of arrest "for the
purpose of bringing him before the competent legal authority" because
there was "reasonable suspicion" that he had committed an "offence".
This suspicion was corroborated by his conviction. Furthermore the
detention was justified on the ground that the applicant had to be
prevented from fleeing abroad again.
The applicant's arrest and detention was also "lawful" and "in
accordance with a procedure prescribed by law" within the meaning of
Article 5 para. 1 of the Convention.
The lawfulness of the arrest was not affected by the facts
alleged by the applicant, namely the "abduction" organised on behalf
of, or in collaboration with, the police, as these allegations have
not been proved during the domestic investigations conducted against
persons accused of unlawful deprivation of liberty. The Government
consider that the Commission is bound to follow these findings. The
principle of presumption of innocence would be violated if the
applicant's allegations were to be held against those involved in the
supposed "abduction" without their guilt being established according
to the law.
The Government further submit that even if the alleged
abduction had taken place both the conduct of criminal proceedings
against the applicant and his detention were lawful. Under German law
criminal proceedings are permissible against a person who has been
abducted to the Federal Republic of Germany contrary to international
law provided that the foreign State whose sovereign rights have been
violated does not demand that the person abducted be returned to that
State.
The Government refer to the Commission's case-law according to
which the question of the "lawfulness" of detention under Article 5
para. 1 of the Convention is not determined solely and definitively in
terms of domestic law. On the contrary, a certain supervisory
function remains with the organs of the Convention to the extent that
they examine whether or not domestic law has been applied in an
arbitrary manner (No. 10689/83, Dec. 4.7.84) or whether the criteria
applied by the domestic courts in assessing the lawfulness were in
conformity with the basic principles of the Convention law (No.
10893/84, Dec. 2.12.85).
The Government point out that the German law was not
arbitrarily applied in the present case. The legal view that criminal
proceedings could be conducted against a person abducted from abroad
contrary to international law was supported by the Kaiserslautern
Regional Court, the Federal Court of Justice and the Federal
Constitutional Court with convincing reasons. It follows in
particular from the decision of the Federal Constitutional Court that
the view taken by the German courts also corresponds to international
standards according to which extradition treaties do not entail
individual rights. It is true that there are isolated judgments and
scholarly opinions that deny the abducting state - in a case where
there has been an abduction contrary to international law - the right
to conduct criminal proceedings against the person who has been
abducted. However, this practice is not sufficiently widespread to be
considered either as an established international practice restricting
State jurisdiction or as a rule requiring the termination of criminal
proceedings against a person abducted in a manner contrary to
international law. Moreover the special guarantees of the Convention
concerning criminal proceedings are intended to protect every innocent
person, but they should not provide and are not intended to provide
the criminal offender with a loophole to avoid his responsibility.
IV. As to Article 6 para. 1 of the Convention
The Government maintain that a violation of the principle of
fair trial embodied in Article 6 is excluded for the very reason that
the guarantees under Article 6 only apply to court proceedings and not
to police activities preceding the arrest of a criminal offender on
the run. The circumstances of the applicant's return could not affect
the fairness of his trial. As the Kaiserslautern Regional Court, the
Federal Court of Justice and the Federal Constitutional Court have
unanimously found, the circumstances of the applicant's arrest in
Saarbrücken on 7 November 1978 did not constitute a procedural bar to
criminal proceedings against the applicant.
V. Conclusion
The Government request the Commission to declare inadmissible
the complaint under Article 5 para. 1 (c) of the Convention on the
ground that it was submitted out of time; and to declare the remainder
of the complaints to be inadmissible as being manifestly ill-founded
(Article 27 para. 2 of the Convention).
B. The Applicant
I. As to the facts
The applicant points out that K collaborated from the
beginning with the German police. Already at the first meeting in
Luxembourg police officers, who pretended to be architects, had been
present. These persons were probably the officers Kl, H and KE.
Furthermore he submits that on 7 November 1978 he had
requested that the territory of the Federal Republic of Germany should
not be overflown. The pretended engine defect of the aeroplane
constituted part of the pre-established plan to bring him back to the
Federal Republic of Germany. In fact, having regard to the type of
the aeroplane used, the pretended defect of the engine could not have
occurred.
The applicant points out that on the national level he did not
succeed in proving that national authorities were involved in his
abduction from France to the Federal Republic of Germany on the ground
that the accused policemen made use of their right not to give
evidence in order not to incriminate themselves. Certain public
prosecutors, who were dealing with the proceedings against him, had
not been heard. K had not even been examined as a witness although he
could have confirmed that he had collaborated with the police. In
this respect the applicant refers to correspondence between K and the
police officer Kl as well as a public prosecutor in which K admitted
that there was a police conspiracy.
The applicant does not agree with the Government's submission
that the Commission would be bound by the findings of national courts
or that the principle of presumption of innocence would exclude an
independent establishment of the facts by the Commission.
II. As to Article 26 of the Convention
The applicant submits that the complaints as regards Article 5
para. 1 (a) and (c) of the Convention are based on a unique set of
facts which cannot be separated.
III. As to Article 5 para. 1 of the Convention
The applicant disagrees with the Government as to the
lawfulness of his arrest. He emphasises that rules of international
law were violated in that he was arrested in breach of the territorial
sovereignty of another State. The applicant considers that the
domestic warrant of arrest could not render his abduction from France
lawful. This warrant of arrest was, therefore, not lawfully executed
in a procedure prescribed by law. The German authorities should have,
in accordance with the rule of law, taken resort to the international
law on extradition.
IV. As to Article 6 para. 1 of the Convention
The applicant disagrees with the German courts' reasoning on a
possible violation of the French territorial sovereignty and its legal
consequences as a procedural impediment to prosecution. He considers
that the main issue under Article 6 para. 1 of the Convention is,
whether or not criminal proceedings can still be regarded as fair if
the pre-condition to conduct these proceedings, i.e. the accused's
presence, was brought about by an unlawful act. The unlawful abduction
taints the whole criminal proceedings and renders them unfair. The
injustice committed by a State illegally obtaining the arrest of a
person could only be redressed by terminating the criminal proceedings
and releasing the person.
THE LAW
1. The applicant complains that his arrest and subsequent
detention were unlawful and not in accordance with a procedure
prescribed by law within the meaning of Article 5 para. 1 (Art. 5-1)
of the Convention. He also considers that, as a consequence of his
unlawful arrest, his right to a fair hearing under Article 6 para. 1
(Art. 6-1) of the Convention was violated in the criminal proceedings
against him.
Article 5 para. 1 (Art. 5-1) of the Conventions states, inter alia:
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure
prescribed by law:
a) the lawful detention of a person after conviction by a
competent court;
...
c) the lawful arrest or detention of a person effected for
the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having
done so; ... "
Article 6 para. 1 (Art. 6-1) of the Convention reads, inter alia:
"In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing ... "
2. The respondent Government consider the applicant's complaint,
under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention, concerning
his arrest and subsequent detention on remand as inadmissible under
Article 26 (Art. 26) of the Convention on the ground that it was
submitted out of time. In their view the applicant should have
submitted an application in this respect within the time-limit of six
months which started at the date when his appeal against detention on
remand was dismissed. The Government submit that, although in fact
the question of the applicant's alleged abduction was of relevance in
the further criminal proceedings on the merits, he could, during his
detention on remand not be sure that the issue would be dealt with in
the later proceedings. As the latest date for the beginning of the
six months' period the Government consider the applicant's release
from detention on remand on 4 February 1982.
It is true that under Article 26 (Art. 26) of the Convention the
Commission may only deal with a matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on
which the final decision was taken.
The Commission notes that the applicant's appeal against the
decision of the Kaiserslautern Regional Court of 17 March 1981
concerning his detention on remand was dismissed by the Zweibrücken
Court of Appeal on 16 April 1981. On 26 August 1981 the Federal
Constitutional Court refused to admit his constitutional complaint
concerning the continuation of his detention on remand.
However, the Commission finds that the applicant could not be
expected to lodge an application with the Commission within six months
after the date of that decision. The Commission notes that the trial
against the applicant before the Kaiserslautern Regional Court had
started on 25 October 1979 and - as the trial court judgment and the
further court decisions on the applicant's appeal on points of law and
his second constitutional complaint show - the German courts were, in
the criminal proceedings on the merits, required to consider the legal
consequences of the applicant's alleged abduction for prosecution and
conviction. On 25 July 1984 the Federal Court of Justice, in the
proceedings concerning the applicant's appeal on points of law,
ordered the taking of evidence on the applicant's allegation that
German authorities had been involved in his return from France and
heard K as witness. A court decision in the criminal proceedings on
the merits which would have accepted that the alleged abduction
created a procedural impediment for the prosecution could also have
affected the lawfulness of the applicant's detention on remand.
Furthermore the Federal Constitutional Court, in its decision of
26 August 1981 on the applicant's first constitutional complaint,
stated that the trial court had "not yet" decided on the facts and the
legal consequences of the applicant's allegations concerning his
abduction from France. The applicant could thus assume that he should
pursue this issue in the main criminal proceedings pending before the
Kaiserslautern Regional Court since October 1979.
In these circumstances the Commission finds that the Federal
Constitutional Court's decision of 17 July 1985 must be considered as
the final decision also with regard to the applicant's complaint
concerning his alleged abduction from France. The applicant, having
lodged the application on 20 September 1985, has, therefore, observed
the six months' rule under Article 26 (Art. 26) of the Convention.
3. The Government further submit that the applicant was lawfully
arrested and detained in accordance with Article 5 para. 1 (Art. 5-1) of the
Convention. They contest the applicant's allegations of a police
conspiracy to effect his return to the Federal Republic of Germany and
point out that these allegations were not proved in the domestic
investigation proceedings. Moreover, the Government state that it is
permissible to conduct criminal proceedings against a person who was
allegedly abducted to the Federal Republic of Germany contrary to
international law on condition that the foreign State whose sovereign
rights were violated does not request that the person abducted be
surrendered. As regards Article 6 para. 1 (Art. 6-1) of the Convention the
Government contend that the principle of fair trial only applies to
court proceedings and is not affected by police activities preceding
the arrest of a criminal offender.
4. The Commission, having made a preliminary examination
of the applicant's complaints, finds that they cannot be declared
manifestly ill-founded on the grounds invoked by the Government
without further investigation into the facts. The application raises
difficult issues of fact and law, in particular under Article 5 para.
1 (c) (Art. 5-1-c) of the Convention, which can only be determined by an
examination of the merits of the case.
No other grounds for inadmissibility having been established,
the application must, therefore, be declared admissible.
For these reasons, the Commission,
without in any way prejudging the merits,
DECLARES THE APPLICATION ADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)