FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications no. 29752/04 and no. 16771/06
by Dilbag Singh THIND and Balvinder Singh THIND
against Germany
The European Court of Human Rights (Fifth Section), sitting on
23 March 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above applications lodged on 27 July 2004 and on 23 April 2006 respectively,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Mr Dilbag Singh Thind, was born in 1965.
The second applicant, Mr Balvinder Singh Thind, was born in 1956.
The applicants, who are Indian nationals and brothers, both live in Grimma. They were represented before the Court by Mr H. Meyer-Mews, a lawyer practising in Bremen. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The investigation proceedings
On 26 March 2003 the Leipzig District Court issued an arrest warrant against the applicants. It found that the applicants were suspected of having infiltrated Indian nationals into Germany or other States of Western Europe in exchange for money on several occasions. They were likely to abscond if not taken into detention, in particular as they risked being sentenced to a considerable term of imprisonment.
On 31 March 2003 the applicants were arrested and taken into pre-trial detention.
On 15 September 2003 the Leipzig Regional Court admitted the indictment dated 16 July 2003 and ordered the applicants’ continued detention. The applicants were notably charged with having infiltrated Indian nationals into Germany and Great Britain on fifty-two occasions, acting as members of a gang on nine of these occasions.
2. The court proceedings
On 9 December 2003 the Leipzig Regional Court opened the trial against the applicants, who were represented by two officially appointed defence counsel each. It subsequently held hearings on average once per week.
a. The proceedings concerning the first applicant’s detention pending trial
i. The proceedings before the Regional Court
On 8 February 2005 the Leipzig Regional Court issued a new detention order against the first applicant, taking into account that a number of charges against him had been dropped in the course of the main hearing.
It confirmed that order on 30 March 2005 on the first applicant’s appeal. The first applicant was now charged, in particular, with having infiltrated or having attempted to infiltrate foreigners into Germany or other countries of Western Europe on a commercial basis on fifteen occasions, while acting as a member of a gang on seven of these occasions. The Regional Court found that the first applicant was strongly suspected of having committed these offences on account of the contents of telephone conversations intercepted on judicial order and on account of the testimonies of twenty witnesses heard until then in court. He was still likely to abscond if released, despite the fact that he was married to a German national, had two young children and had already been in detention pending trial for almost two years.
He risked being imposed a severe prison sentence if convicted and was suspected of belonging to an organisation which was in a position to smuggle persons abroad. Therefore, milder measures, such as his release on bail, were not suitable to avert the danger of his absconding and his continued detention was still proportionate.
ii. The proceedings before the Court of Appeal
On 18 April 2005 the Dresden Court of Appeal, endorsing the reasons given by the Regional Court in its decisions, dismissed the first applicant’s appeal as ill-founded.
On 19 May 2005 the Dresden Court of Appeal, following the first applicant’s remonstrance, refused to amend its decision of 18 April 2005.
It considered, in particular, that the first applicant’s continued detention was not disproportionate in the light of the case-law of the Federal Constitutional Court and the European Court of Human Rights on the subject-matter. The sentence he risked being imposed if convicted largely exceeded the length of his detention pending trial until then. The Court of Appeal conceded that the proceedings had already lasted for a considerable time. Disagreeing with the first applicant, it found, however, that the prosecution authorities and the Leipzig Regional Court had not delayed the proceedings. The proceedings were very complex, notably because the offences had to be proved by examining the results of numerous intercepted telephone conversations made in a foreign language. The defendants being Indian nationals, the participation of interpreters in the proceedings was necessary. Moreover, the defendants’ lawyers had lodged numerous motions in the sixty hearings of the case held until then, which had prolonged the proceedings. It had been sufficient for the Regional Court to hold one hearing per week, which as a rule lasted the whole day. The defendants’ lawyers had rejected the Regional Court’s proposal made in March 2005 both to prolong the duration of the weekly hearing and to hear the case on two days per week, arguing that they were unavailable.
iii. The proceedings before the Federal Constitutional Court
On 9 May 2005 the first applicant lodged a complaint with the Federal Constitutional Court against the decision taken by the Dresden Court of Appeal on 18 April 2005 and applied for an interim injunction quashing that decision and releasing him from prison. He subsequently extended his constitutional complaint to comprise also the decision of the Court of Appeal dated 19 May 2005. He claimed that his continued detention pending trial was disproportionate and in breach of the Basic Law, construed in the light of Article 5 § 3 of the Convention. He argued that the proceedings had been unreasonably delayed by the Leipzig Regional Court and that the criminal courts wrongly upheld the detention order on the unfounded assumption that he would abscond if released.
On 2 June 2005 the Federal Constitutional Court, without giving reasons for its decision, declined to consider the first applicant’s constitutional complaint and declared that his application for interim measures had thereby become devoid of purpose (file no. 2 BvR 724/05).
b. Proceedings concerning the second applicant’s detention pending trial
i. The proceedings before the Regional Court
On 8 February 2005 the Leipzig Regional Court issued a new detention order also against the second applicant, which it upheld on 5 and
19 July 2005 following the second applicant’s request for judicial review and appeal respectively. The second applicant was now charged notably with having infiltrated or having attempted to infiltrate Indian nationals into Germany or other countries of Western Europe on a commercial basis on twelve occasions, acting as a member of a gang on seven of these occasions. As to the evidence in support of the strong suspicion that the second applicant committed these offences and as to the reasons why he risked absconding if released, despite the fact that he had a close relationship with his son living in Grimma, the Regional Court reasoned its order in similar terms as that against the first applicant issued the same day (see above).
ii. The proceedings before the Court of Appeal
On 2 August 2005 the Dresden Court of Appeal, endorsing the reasons given in the decisions of the Leipzig Regional Court dated 5 and
19 July 2005, dismissed the second applicant’s appeal in which the latter had complained about the excessive length of his detention pending trial and about the delays caused in the proceedings by the fact that hearings were held only once per week.
On 29 August 2005 the Dresden Court of Appeal, on the second applicant’s remonstrance, refused to amend its decision dated
2 August 2005. It took the view that its decision was not contrary to the case-law of the European Court of Human Rights on the reasonable length of detention pending trial referred to by the second applicant.
On 28 September 2005 the Dresden Court of Appeal dismissed as inadmissible the second applicant’s request to give him an opportunity for explanation following its decision and also rejected his further remonstrance.
iii. The proceedings before the Federal Constitutional Court
On 1 October 2005 the second applicant lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Dresden Court of Appeal of 29 August and 28 September 2005 and applied for an interim injunction ordering his release from prison. He argued that his continued detention pending trial was unconstitutional in view of the protracted length of the proceedings against him.
On 25 October 2005 the Federal Constitutional Court, without giving reasons for its decision, declined to consider the second applicant’s constitutional complaint and declared that his application for interim measures had thereby become devoid of purpose (file no. 2 BvR 1659/05).
c. The judgment of the Regional Court
Between 9 December 2003 and 10 January 2006 included, the Leipzig Regional Court held 93 hearings (that is, on average one hearing per week), in the course of which approximately 60 witnesses and experts were heard.
In the hearing on 10 January 2006 the Leipzig Regional Court stated that the judges, the applicants’ defence counsel and the Public Prosecutor had discussed an agreement with a view to terminating the proceedings (Verfahrensabsprache). In a decision laid down in the minutes of the hearing, the court declared that it would sentence the first applicant to a maximum of five years and six months’ imprisonment and the second applicant to a maximum of five years’ imprisonment if the applicants made a comprehensive and credible confession concerning certain specified offences they had been charged with. Moreover, the court promised to suspend the sentences imposed and grant probation already when the applicants had served half of their sentence under Article 57 § 2 of the Criminal Code (see Relevant domestic law and practice below) if the information it had obtained to date was correct (in particular that the applicants did not have any previous convictions) and if the formal requirements were met. The applicants then confessed to the offences specified in the Regional Court’s decision.
On 17 January 2006 the Leipzig Regional Court pronounced its judgment. It convicted the first applicant of thirteen counts of infiltration or attempted infiltration of foreigners on a commercial basis, acting as a member of a gang on eight occasions, and sentenced him to five years and six months’ imprisonment. It found the second applicant guilty of ten counts of infiltration or attempted infiltration of foreigners on a commercial basis, acting as a member of a gang on seven occasions, and sentenced him to five years’ imprisonment.
The court found that the applicants, partly acting together with another brother of theirs living in India, had illegally infiltrated Indian nationals into Germany or other States of Western Europe, notably Great Britain, in exchange for money. It based its findings on the applicants’ confessions, which were confirmed by the transcripts of intercepted telephone conversations and the testimonies of nine witnesses. It took into consideration, as a mitigating factor, inter alia, that the applicants had been in detention pending trial for a long period of time, two years and almost ten months, and had been uncertain about the outcome of the proceedings for a very long period of time due to the long duration of the proceedings.
By a decision taken immediately after the pronouncement of the judgment in the hearing, the Leipzig Regional Court quashed the detention orders of 8 February 2005 against both applicants. It then instructed the applicants that they had the right to lodge an appeal on points of law against the judgment and that the agreement with a view to terminating the proceedings reached in the hearing did not bar them from lodging that appeal (so-called qualified instruction – qualifizierte Belehrung).
Following an interruption of the hearing, during which the applicants consulted their defence counsel, the applicants waived their right to lodge an appeal with the consent of their defence counsel. The prosecution then also waived its right to appeal. The judgment thereby having become final, the Regional Court suspended the remainder of the prison sentences imposed on the applicants and granted probation pursuant to Article 57 § 2 of the Criminal Code, having regard, inter alia, to the very long duration of the applicants’ detention pending trial.
d. The decision of the Federal Court of Justice
The applicants subsequently lodged an appeal on points of law.
They argued that the waiver of their right to appeal was invalid because it was based on an agreement with the court and because only that agreement had made possible their immediate release from prison.
On 24 August 2006 the Federal Court of Justice dismissed the applicants’ appeal on points of law as inadmissible. It found that the applicants had validly waived their right to lodge an appeal. Prior to the pronouncement of the Regional Court’s judgment there had been an agreement between that court, the prosecution and the defence aimed at terminating the proceedings. However, the agreement did not comprise a commitment that the defendants waive their right to file an appeal on points of law. According to the minutes, the defendants had been expressly informed by the Regional Court after the pronouncement of the judgment that the agreement reached did not prevent them from lodging an appeal on points of law against the judgment and had thus received the necessary qualified instruction. After a suspension of the hearing, which gave them sufficient time for consideration, they had declared to waive their right to appeal with the consent of their counsel. This waiver was irrevocable. Having regard to the criteria established in its case-law (it referred to the decision of its Grand Chamber of 3 March 2005, no. GSSt 1/04, Neue Juristische Wochenschrift (NJW) 2005, pp. 1440 et seq., see Relevant domestic law and practice below), there were no exceptional grounds rendering the waiver void.
B. Relevant domestic law and practice
1. Provisions of the Criminal Code
Under Article 57 § 2 of the Criminal Code, the courts may suspend the execution of the remainder of a prison sentence and grant probation already when half of the sentence has been served, in particular, if the convicted person is serving his first term of imprisonment and the latter does not exceed two years or if a comprehensive evaluation of the offence, the personality of the convicted person and his development during the execution of the sentence show that special circumstances exist.
2. The case-law of the Federal Court of Justice
In its leading decision of 3 March 2005, the Grand Chamber of the Federal Court of Justice laid down the principles governing the validity of a waiver of the right to appeal in the context of agreements with a view to terminating criminal proceedings (no. GSSt 1/04, Neue Juristische Wochenschrift (NJW) 2005, pp. 1440 et seq.). It considered such agreements, in which the criminal courts made a binding declaration on a maximum penalty to be imposed in exchange for the defendant’s confessing to (part of) the offences he was charged with, to be compatible with the Code of Criminal Procedure and the Basic Law if certain conditions were met.
In particular, all participants in the proceedings (that is, professional and lay judges, the prosecution, the defence counsel and the defendant) had to be involved in reaching the agreement, the result of which had to be made public in the hearing and had to be included in the minutes. The veracity of the confession made by the defendant in accordance with the agreement had to be verified. The agreement was not allowed to concern the legal qualification of the acts the defendant had been charged with. The penalty proposed by the court still had to reflect the defendant’s guilt and the penalty which, according to the court, was to be expected without a confession could not be disproportionately severe so as to submit the defendant to undue pressure to confess. The court was only allowed to promise a maximum penalty (as opposed to a specified penalty) and could exceed that penalty only if relevant factual or legal aspects had been overlooked and if it had previously averted the defendant in the hearing of its intention to fix a higher penalty. The Federal Court of Justice noted that in view of their heavy workload, the courts would be unable to render criminal justice and to avoid delays in the proceedings without being allowed to have recourse to such agreements.
The Federal Court of Justice further observed that in the past, such agreements had in practice often involved the defendant’s promise to waive his right to appeal against the judgment or at least the court’s suggestion to do so. However, the criminal courts were not authorised, in the context of these agreements, to arrange upon a waiver of the right to appeal.
An agreement aimed at terminating the proceedings was not to prevent an effective control, by the appeals courts, of the lower courts’ judgments. After the delivery of a judgment which was given following an agreement
– irrespective of whether a waiver of the right to appeal had been included or discussed – the court therefore had to instruct the defendant not only about his right to appeal, but in addition on the fact that he was free to lodge an appeal irrespective of the agreement reached (so-called qualified instruction). If such a qualified instruction had not been given, the defendant’s waiver of his right to appeal was void.
THE LAW
A. Joinder of the applications
Given that the present applications both concern questions related to criminal proceedings conducted jointly against the applicants, the Court decides that the applications shall be joined (see Rule 42 § 1 of the Rules of Court).
B. Alleged violation of Article 6 of the Convention
The applicants complained that the duration of the criminal proceedings against them had been excessive. They alleged a violation of Article 6 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Government contested that argument.
1. The parties’ submissions
a. The Government
In the Government’s view, the applicants had failed to exhaust domestic remedies in accordance with Article 35 § 1 of the Convention. They had validly and irrevocably waived their right to lodge an appeal, in which they could have claimed redress for the allegedly excessive duration of the criminal proceedings against them. It was true that the Regional Court, when fixing the applicants’ sentence, had taken into consideration that the criminal proceedings against the applicants had lasted a long time but had not acknowledged a breach of Article 6 § 1 of the Convention. By an appeal on points of law and a subsequent complaint to the Federal Constitutional Court, which were effective remedies, those courts could have reviewed whether the Regional Court had acknowledged a breach of Article 6 § 1 of the Convention – if such a breach had occurred – and had reduced the applicants’ sentence in a measurable manner.
The Government submitted that the agreement reached between the parties and the Regional Court aimed at terminating the criminal proceedings had not barred the applicants from lodging an appeal to complain about the length of the criminal proceedings. That agreement had not contained a waiver of their right to appeal. Quite the contrary, the Regional Court had expressly and comprehensively instructed the applicants after the pronouncement of the judgment against them and after the arrest warrants against them had been quashed that the agreement reached in court did not bar them from lodging an appeal on points of law. The applicants, having consulted their defence counsel, had then irrevocably waived their right to lodge an appeal in accordance with their free will and had, in particular, not been obliged to waive their right to appeal in order to obtain their release. The Federal Court of Justice had found that the waiver had been valid and had, therefore, dismissed the applicants’ appeal on points of law as inadmissible.
b. The applicants
The applicants argued that they had exhausted domestic remedies. It had been sufficient for them to lodge a complaint with the Federal Constitutional Court against the detention orders issued against them.
The applicants further took the view that, in any event, the waiver of their right to appeal had been invalid. If they had not consented to the agreement aimed at terminating the proceedings before the Regional Court and had not waived their right to appeal, they would have been kept in detention pending trial even longer, most probably also until a decision on their appeal on points of law would have been given. Thus, waiving their right to appeal had been the only means to obtain their immediate release.
2. The Court’s assessment
As regards complaints concerning the excessive length of criminal proceedings, it is the Court’s settled case-law that a complaint to the Federal Constitutional Court about the duration of such proceedings, following exhaustion of domestic remedies before the criminal courts, is, as a rule, an effective remedy capable of providing the litigant with adequate redress (compare, inter alia, Uhl v. Germany (dec.), no. 64387/01, 6 May 2004, and Weisert v. Germany (dec.), no. 14374/03, 3 April 2007). In this connection, the Court accepted that, other than in civil proceedings, the Federal Constitutional Court is in a position to provide redress for the unreasonable duration of criminal proceedings by directing the prosecution or the criminal courts to draw the necessary consequences from an undue delay in the proceedings. These notably included discontinuing the proceedings pursuant to Articles 153 and 153a of the Code of Criminal Procedure, limiting criminal prosecution pursuant to Articles 154 and 154a of the Code of Criminal Procedure or dispensing with or mitigating the penalty (see Weisert, cited above; see also Jansen v. Germany (dec.), no. 44186/98,
12 October 2000 and Dželili v. Germany, no. 65745/01, §§ 100-104,
10 November 2005 for a mitigation of the sentence, and Sprotte v. Germany (dec.), no. 72438/01, 17 November 2005 for a discontinuance of the proceedings).
In certain exceptional cases only, in which the appeal courts and the Federal Constitutional Court, for factual or legal reasons, were not in a position to afford the defendant redress in that manner, the Court considered an appeal or complaint to these courts not to constitute an effective remedy capable of affording adequate redress for the purposes of the Convention (see Ommer v. Germany (no. 1), no. 10597/03, §§ 70 et seq.,
13 November 2008, concerning proceedings which ended with the applicant’s acquittal; Ommer v. Germany (no. 2), no. 26073/03, §§ 56 et seq., 13 November 2008, concerning proceedings which were discontinued on grounds unrelated to their length, and Kaemena and Thöneböhn
v. Germany, nos. 45749/06 and 51115/06, §§ 83 et seq., 22 January 2009, concerning proceedings which ended with the imposition of a mandatory (life) sentence).
In the present case, the Court observes at the outset that in their complaints to the Federal Constitutional Court, the applicants contested the legality of the detention orders executed against them and not the length of the criminal proceedings as such. They should therefore have attempted to obtain adequate redress before the Federal Court of Justice and the Federal Constitutional Court for the allegedly unreasonable length of the criminal proceedings after their conviction by the Regional Court – unless the agreement aimed at terminating the proceedings reached before the Regional Court affected their possibility to obtain effective redress in that manner.
The Court notes in this connection that, whereas in the past such agreements had in practice often involved the defendant’s promise to waive his right to appeal against the judgment of the first-instance court (see Relevant domestic law and practice above), this had not been so in the present case. In a leading judgment the Federal Court of Justice had indeed previously found that agreeing upon a waiver of the defendant’s right to appeal in the context of such an agreement was prohibited (see Relevant domestic law and practice above). In accordance with this case-law, the Regional Court also expressly gave the applicants a qualified instruction to the effect that they had the right to lodge an appeal on points of law against its judgment and that the agreement reached in the hearing did not bar them from doing so. The Court is further satisfied that, following an appeal lodged by the applicants, the Federal Court of Justice and the Federal Constitutional Court could have examined, irrespective of the agreement reached, whether the duration of the criminal proceedings against the applicants had been excessive and if so, could have directed the Regional Court to afford appropriate redress, notably by reducing the applicants’ sentence in an express and measurable manner.
The Court further observes that following delivery, at the hearing, of the Regional Court’s judgment the applicants waived their right to appeal.
They must therefore be considered to have failed to exhaust domestic remedies unless there were special circumstances absolving them from the obligation to do so (see, mutatis mutandis, Weisert, cited above).
This would be the case if the applicants’ waiver of their right to appeal, whereby they forewent the possibility to have examined the compliance of the criminal proceedings with their Convention right under Article 6, could not be considered as valid for the purposes of the Convention (for the principles emerging from the Court’s case-law see Transado-Transportes Fluviais Do Sado S.A. v. Portugal (dec.), no. 35943/02, ECHR 2003‑XII; Pfeifer and Plankl v. Austria, 25 February 1992, § 37, Series A no. 227, and Zu Leiningen v. Germany (dec.), no. 59624/00, ECHR 2005‑XIII).
The Court considers that the applicants’ waiver of their right to appeal, depriving them of the possibility to contest the length of the proceedings against them, was permissible from the point of view of Article 6 and – as has also been examined and confirmed by the Federal Court of Justice – was established in an unequivocal manner. As the applicants not only received an express and qualified instruction about their right to appeal, but were also represented by defence counsel whom they could and did consult prior to waiving their right to appeal, their waiver was also accompanied by sufficient guarantees commensurate to its importance.
The Court further observes that in the applicants’ submission, they were obliged to enter into the agreement aimed at terminating the proceedings and to waive their right to appeal in order to obtain their immediate release from detention pending trial. However, the Court cannot discern any undue pressure having been exerted by the Regional Court on the applicants in order to make them conclude the agreement, which entailed advantages for them, namely a lower sentence and its earlier suspension on probation, in exchange for their confessions. As to the applicants’ claim that they had to waive their right to appeal in order to obtain their release from detention, the Court notes that following the pronouncement of its judgment, the Regional Court had quashed the arrest warrants against the applicants prior to instructing them that they were free to lodge an appeal on points of law. There is nothing to indicate that it had been suggested to the applicants
– who, as the Regional Court had itself confirmed, had been in detention pending trial for a long time – that a new arrest warrant would be issued against them if they did not waive their right to appeal.
The Court is therefore satisfied that the applicants’ waiver of their right to appeal was valid not only under domestic law, but also for Convention purposes. The applicants therefore failed to exhaust the effective remedies at their disposal to complain about the unreasonable length of the criminal proceedings against them.
It follows that this part of the applications must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
C. Alleged violation of Article 5 § 3 of the Convention
The applicants further complained that the duration of their detention pending trial had been excessive. They relied on Article 5 § 3 of the Convention, which provides:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
The Government contested that argument.
1. The parties’ submissions
a. The Government
The Government argued that by waiving their right to appeal against the Regional Court’s judgment, the applicants failed to exhaust domestic remedies in accordance with Article 35 § 1 of the Convention also in respect of their complaint under Article 5 § 3. They submitted that the applicants could have claimed redress also for the allegedly excessive duration of their detention pending trial in an appeal on points of law and a subsequent complaint to the Federal Constitutional Court. Those courts could have reviewed whether the Regional Court had acknowledged a breach not only of Article 6 § 1, but also of Article 5 § 3 – if such a breach had occurred – and had reduced the applicants’ sentence in a measurable manner. In his constitutional complaint about the arrest warrant, the second applicant further failed to complain about the decision of the Dresden Court of Appeal of 2 August 2005 ordering his continued detention.
The Government further submitted that, in any event, the applicants’ detention pending trial had complied with Article 5 § 3. In particular, the domestic courts had given sufficient reasons for the suspicion that the applicants were guilty of an offence and for the risk that they would abscond if released. Furthermore, the criminal proceedings against them had been furthered with particular diligence. The proceedings had been particularly complex. It had been sufficient for the Regional Court to hold a hearing, lasting the whole day, once per week. In any event, it had been the applicants’ defence counsel who had lodged numerous requests in an attempt to delay the proceedings and had objected to prolonging the hearings or agreeing to additional days for hearings.
b. The applicants
The applicants argued that they had exhausted domestic remedies.
They both had lodged a complaint with the Federal Constitutional Court about their continued detention in compliance with the formal requirements. They could not have complained about the length of their detention pending trial in an appeal on points of law following the Regional Court’s judgment in the criminal proceedings against them. The second applicant further submitted that in his constitutional complaint of 1 October 2005, having regard to the one-month time-limit for lodging such a complaint, he could no longer complain about the decision of the Court of Appeal of
2 August 2005.
The applicants further considered that the duration of the criminal proceedings against them, during which they had been detained, had been excessive. Having regard to the complexity of the proceedings, the Regional Court had been obliged to fix and hold hearings more often than once per week from the outset. It had not been sufficient to propose to prolong the weekly hearing for two hours only in March 2005. It should not have refrained from fixing any further dates for hearings because of the defence counsel’s unavailability and should have considered appointing different officially appointed defence counsel. The applicants further argued that the Regional Court had failed to quash the arrest warrant and release them from detention pending trial despite the fact that their continued detention had become disproportionate. Moreover, the criminal courts had wrongly upheld the detention order on the unfounded assumption that they would abscond if released.
2. The Court’s assessment
The Court notes that the applicants complained about the total duration of their detention pending trial – that is, starting from their arrest on 31 March 2003 until their release on 17 January 2006, when the Regional Court pronounced its judgment. However, the applicants waived their right to lodge an appeal against the Regional Court’s judgment and, as set out above, that waiver was valid for the purposes of the Convention. The Court is further satisfied that in an appeal on points of law and a subsequent complaint to the Federal Constitutional Court following their release, the applicants could have obtained redress for a violation also of Article 5 § 3 by a measurable mitigation of their sentence (see also Dzelili v. Germany, no. 65745/01, § 83, 10 November 2005). They therefore failed to exhaust domestic remedies in respect of the total duration of their detention pending trial.
However, the Court observes that, at a time when the criminal proceedings against them were still pending, the applicants complained about the detention orders issued against them by the Regional Court before the Court of Appeal and the Federal Constitutional Court, claiming their release from detention pending trial in view of the protracted length of the proceedings. It considers that such complaints against the detention orders were effective remedies as the latter courts were capable of providing redress by ordering the applicants’ release had they considered the duration of the applicants’ detention to be excessive. It notes that the first applicant complained before the Federal Constitutional Court about his continued detention ordered by the Leipzig Regional Court on 8 February 2005 and confirmed by the Court of Appeal on 18 April 2005 and thus exhausted domestic remedies. The second applicant, however, failed to complain about the Dresden Court of Appeal’s formal decision of 2 August 2005 upholding the detention order against him as he only contested the additional decisions taken by the Court of Appeal on 29 August and 28 September 2005 on his (informal or extra-statutory) remonstrance and request to be heard before the Federal Constitutional Court within the prescribed time-limit.
The second applicant therefore failed to exhaust domestic remedies in compliance with the formal requirements of domestic law. It follows that this part of the second applicant’s application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
In examining whether the length of the first applicant’s detention pending trial was reasonable, the Court must establish whether the grounds given by the judicial authorities were “relevant” and “sufficient” to justify the continued deprivation of liberty and ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see, among others, Labita v. Italy [GC], no. 26772/95, § 153, ECHR 2000-IV, and Kudła v. Poland [GC], no. 30210/96, § 111,
ECHR 2000-XI).
The period to be considered under Article 5 § 3 in respect of the first applicant’s detention pending trial started on 31 March 2003 when he was arrested and ended when the Federal Constitutional Court delivered its decision on his constitutional complaint on 2 June 2005. It thus lasted for some two years and two months.
As to the grounds for the first applicant’s detention pending trial during the period in question, the Court notes that in the domestic courts’ view, having regard to specific witness and documentary evidence before them, there was a strong suspicion that the first applicant had infiltrated Indian nationals into Germany on several occasions. The domestic courts further considered that after some two years of detention pending trial, the first applicant was still likely to abscond if released, despite the fact that he was married to a German national and had two young children. He risked not only being imposed a severe prison sentence, but also belonged to an organisation which was able to smuggle persons abroad. The Court, having also regard to the fact that under the provisions of the German Code of Criminal Procedure, the Regional Court could not have continued and terminated the criminal proceedings in the defendant’s absence, is satisfied that these reasons were both relevant and sufficient to justify the deprivation of liberty at issue.
As to the question whether the domestic courts can be considered to have displayed special diligence in the conduct of the proceedings, the Court finds that the proceedings against the first applicant were very complex. They had to be conducted against two co-defendants simultaneously and concerned numerous charges which had to be examined by hearing numerous witnesses in a total of 94 hearings and by translating and introducing into the trial countless transcripts of telephone conversations made by the first applicant with others in a foreign language.
As to the conduct of the proceedings the Court observes that the investigation proceedings were terminated speedily, some four months after the first applicant’s arrest. The Regional Court then held hearings in the proceedings against him on average once per week and, as a rule, throughout the day. It is true that that court appears to have proposed to prolong the duration of the hearings and to hear the case on two days per week on a rather advanced stage of the proceedings, in March 2005 only. However, the Court cannot but note the conduct in the proceedings of the first applicant as well, whose defence counsel rejected the Regional Court’s proposal to further the proceedings by hearing the case more frequently.
Having regard to the foregoing, the Court considers that during the period of time here at issue the Regional Court can still be considered to have displayed special diligence in the conduct of the proceedings.
The duration of the first applicant’s detention pending trial of some two years and two months therefore can not yet be considered as unreasonable.
It follows that this part of the first applicant’s application must be dismissed as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
D. Other alleged violations of the Convention
Lastly, the applicants claimed that their detention was not “in accordance with a procedure prescribed by law” and “lawful” within the meaning of Article 5 § 1 of the Convention for lack of compliance with the applicable provisions of the Code of Criminal Procedure and the Basic Law. Their long detention pending trial had also been unlawful because the applicable criminal provisions of the Aliens Act which prohibited aiding and abetting foreigners to travel to another country were in breach of Article 2 of Protocol No. 4 to the Convention.
The Court has examined the remainder of the applicants’ complaints as submitted by them. However, having regard to all material in its possession, the Court finds that, even assuming the exhaustion of domestic remedies in all respects, these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that the remainder of the applications must likewise be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
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