THE FACTS
A. Whereas the facts presented by the Parties and apparently not in
dispute between them may be summarised as follows:
I. The applicant is a German citizen, born in 1915 and at present
detained in prison in Hamburg. His application concerns the length of
his detention on remand.
The applicant was arrested on 7th September, 1961, under the suspicion
of the murder of Jews in several cases committed in 1942/43 when he was
serving as a subordinate police officer (Polizeisekretär) and member
of the SS at Rabka in German Occupied Poland (Generalgouvernement
Polen). The trial opened before the Regional Court (Schwurgericht) of
Hamburg on 3rd May, 1968. On 15th August, 1968 he was convicted for
murder in 18 cases involving some 148 persons and sentenced to penal
servitude (Zuchthaus) for life. The Hamburg Regional Court further
decided that the applicant should be deprived of his civic rights for
life. The applicant's appeal (Revision) against the decision is still
pending before the Federal Court (Bundesgerichtshof).
II. The development of the criminal proceedings against the applicant
was as follows:
In August 1961 the results of enquiries, which had been made by the
Land Judicial Administrations Office (Zentrale Stelle der
Landesjustizverwaltungen) at Ludwigsburg regarding offenses alleged to
have been committed by the applicant during 1942/43, were communicated
to the Public Prosecutor's Office (Staatsanwaltschaft) in Hamburg. On
the basis of this material the Public Prosecutor's Office made an
application to the District Court (Amtsgericht) in Hamburg for the
applicant's arrest. A warrant of arrest was issued by the District
Court on 16th August, 1961 and on 7th September, 1961, the applicant
was arrested at his home in Hamburg and remanded in custody.
The Hamburg Public Prosecutor's Office began interrogating the
applicant on 12th September, 1961. After having first denied that he
had ever shot any Jews, the applicant confessed on 16th October, 1961
that Jews had indeed been shot in the area of the Rabka School and that
he himself had participated in the shootings, partly through
subordinate officials, partly personally.
The applicant alleged having acted under the orders of his superior
officer, namely Obersturmbannführer Dr. G. who was Officer in Charge
of the Security Police (Kommandeur der Sicherheitspolizei) in the
District of Cracow. Consequently, the Public Prosecutor's Office
proceeded to ascertain and trace the members of that unit in order to
find out whether or not it was possible, having regard to the
hierarchical order of command existing in Poland at that time, that the
applicant could have received such orders from Dr. G..
During the investigations it became clear that the applicant, who had
been an official in charge of administration at the Rabka School of the
Security Police and, as such, concerned with administrative matters
relating to the School only, could not have received any orders from
the Officer in Charge of the Security Police. The investigations
further showed that other Officer never had any competence with regard
to the School at Rabka which had been under the command of the
Commanding Officer of the Security Police (Befehlshaber der
Sicherheitspolizei). These conclusions had been supported by the
evidence given on 23rd May, 1962, by Dr. G.'s former secretary, who
stated that the applicant had not received any orders from Dr. G. for
the liquidation of Jews at Rabka.
On 12th June, 1962, the applicant himself admitted that he had not
received any orders from Dr. G. to shoot Jews but that these orders had
been given him by the Commanding Officer of the Security Police, Dr.
S. He explained that he had been trying to protect Dr. S.'s widow and
family.
In the course of subsequent interrogations the applicant alleged that
he had shot several so-called "Working Jews" ( ) who had been
sent to him from the District of Neumarkt after having been sentenced
to death. He explained that these persons had been sent to him by the
former Senior Official (Dienststellenleiter) at Neu-Sander, H, as
possible labourers. However, when confronted with H. on 7th December,
1962, the applicant changed his previous statement and said that the
persons concerned had not been "death candidates" but persons sent to
him by the Labour Office to do work.
The applicant now declared that the former Senior Official of the Unit
of Border Police (Grenzpolizeikommissariat) at Zakopane, W., had been
responsible for some of the killings in the area of the Rabka School.
He added that Unit had shot between 20 and 100 Jewish men and women in
connection with a so-called "action involving communists"
(Kommunistenaktion) and hanged about 11 other Jewish persons. However,
after having been confronted with Mr. N., a former member of the
Zakopane Unit, the applicant admitted on 21st May, 1963, that he
himself had shot Jewish persons who were either no longer fit to work
or who were cripples and he alleged that he had acted upon the orders
of the Commanding officer of the Security Police.
In the meanwhile, the Public Prosecutor's Office in Hamburg had
examined numerous witnesses who were, to a considerable extent, Jewish
persons resident in the United States of America or Israel. Between 1st
March and 6th June, 1963, the applicant was heard in regard to the
incriminating evidence given by these Jewish witnesses. As a result of
the counter-allegations made by the applicant it was necessary to
re-examine certain of these witnesses and this took place as regards
those witnesses resident in Israel up to the end of 1963. Subsequently,
from 29th January, 1964 until 5th March, 1964 the answers of these
Israel witnesses were discussed with the applicant.
Between April and June 1964 the witnesses resident in the United States
were heard on the applicant's above counter-allegations. The applicant
was himself interrogated again on 16th December, 1964.
On 25th March, 1965, the Public Prosecutor's Office made an application
to the investigating judge (Untersuchungsrichter) to open an
preliminary judicial investigation (richterliche Voruntersuchung)
against the applicant in accordance with
Article 178 et seq. of the Code of Criminal Procedure
(Strafprozessordnung). This investigation was opened on 21st April,
1965 and the applicant was informed that the investigating judge
intended to hear him on 4th May, 1965. His request for an adjournment
of this hearing, on the ground that his defence counsel was prevented
from attending, was rejected. At the hearing on 4th May, 1965, the
applicant refused to make any statements in the absence of his counsel
and the judicial investigation was closed on 5th May, 1965, without any
further enquiries.
On 29th October, 1965, the Public Prosecutor filed the indictment
(Anklageschrift) with the Regional Court (Landgericht) of Hamburg. In
this indictment the applicant was formally charged with murder in
several cases. It was served on applicant's counsel on 15th November,
1965, and 15th December, 1965 fixed as the time-limit for replying to
the charge. On 2nd December, 1965, the applicant asked for an extension
of time until 15th February, 1966; on 31st January, 1966, he asked for
a further extension until 1st May, 1966.
On 28th April, 1966, counsel for the applicant requested a new judicial
investigation but this request was rejected by the Regional Court's
decision of 3rd June, 1966, committing the applicant for trial. On the
applicant's appeal (Beschwerde) the Court of Appeal (Oberlandesgericht)
set aside the decision of the Regional Court on 7th July, 1966, and
ordered a new judicial investigation.
The investigating judge the fixed 16th August 1966 as the date on which
the applicant should be heard. The applicant's lawyers, Dr. X. and Mr.
Y., who had been appointed as his defence counsel under the applicable
legal aid system (Armenrecht) on 16th May, 1966 and 5th July, 1966
respectively, objected to that date on the ground that they had
previous engagements and also intended to go on holiday. Consequently,
a new date was fixed for 28th September, 1966.
On 10th July and 11th October, 1966, counsel for the applicant moved
to take further evidence. These motions were in part granted.
A psychological and psychiatric examination of the applicant was
carried out in the mental hospital of Hamburg-Ochsenzoll between 28th
December, 1966 and 7th February, 1967 as a result of which the
applicant was found to be physically capable to remain in detention and
to stand trial.
The further judicial investigation was then closed on 31st March, 1967.
On 9th May, 1967, the applicant was heard by the Public Prosecutor
as to the result of the investigation (Schlussgehör), in accordance
with Article 69 b of the Code of Criminal Procedure. An application
by counsel to discontinue the proceedings in respect of some of the
charges was rejected as was his request again to re-open the judicial
investigation.
On 10th May, 1967, the Public Prosecutor filed a new indictment with
the Regional Court which was substantially the same as the previous
indictment of 29th October, 1965. The applicant again moved to re-open
the judicial investigation but this was refused by the Regional Court
and, on appeal, by the Court of Appeal on 15th August, 1967.
In the meanwhile, on 14th June, 1967, the proceedings against the
applicant had been opened before the Regional Court (Schwurgericht) of
Hamburg. Since both counsel for defence had other previous engagements,
the trial itself did not start until 3rd May, 1968. It lasted until
15th August, 1968 and on that day, the applicant was convicted for
murder in 18 cases and sentenced to penal servitude for life. He
appealed to the Federal Court (Bundesgerichtshof) against this decision
but the appeal proceedings are still pending.
III. During the period of the applicant's detention on remand the
courts examined on numerous occasions the lawfulness of his detention.
On each of these occasions the courts found that it was not possible
to order the applicant's release pending trial, not even against
certain guarantees, since the danger of his absconding (Fluchtgefahr)
persisted. In this connection, the following facts appeal from the
submissions of the Parties:
On 4th October, 1962, the applicant made an application for his
conditional release (Haftverschonung) which was rejected by the
Regional Court in Hamburg on 31st October, 1962. The applicant did not
challenge this decision.
On 4th March, 1963, the applicant voluntarily handed his passport to
the authorities in order to demonstrate that he did not intend to
abscond and, on 11th March, 1963, he sought his release on an offer of
bail of 60,000 DM. The Attorney-General (Generalstaatsanwalt), however,
objected on the ground that neither bail nor other guarantees could
eliminate the danger of his flight.
On 4th June, 1963, the applicant submitted to the Regional Court in
Hamburg his first application for release pending trial
(Haftbeschwerde) which was dismissed on 24th June, 1963. The Regional
Court found that, insofar as it was likely at the present stage of the
investigations that the applicant would be convicted for murder, there
was a considerable danger of his absconding. The applicant lodged with
the Hanseatic Court of Appeal an appeal (Beschwerde) against this
decision but this was rejected on 31st July, 1963. The Court examined
the charges laid against the applicant and the evidence collected so
far. It found that there was considerable evidence of his guilt and
that, in view of the penalty to be expected in case of his conviction
for murder, there was a substantial danger of his absconding which
could not be eliminated by the applicant's personal situation, the
length of his actual detention on remand, or any offer of bail made by
him.
Since 1963 the courts examined regularly and ex officio in accordance
with Article 117, paragraph (5), or Articles 121, 122 of the Code of
Criminal Procedure, the lawfulness of the applicant's continued
detention on remand. Decisions were taken by the Hamburg District Court
on 30th December, 1963, 1st April, 1964, 30th September, 1964, 6th
October, 1964 and 30th March, 1965, and on each occasion the Court
decided that his detention on remand should continue since the reasons
for detention continued. On 6th October, 1964, the District Court also
amended the warrant of arrest of 16th August, 1961 specifying the
charges laid against the applicant and rejected a further application
for conditional release on bail on the ground that the danger of
absconding was not eliminated by the guarantees offered.
On 10th June, 1965, the warrant of arrest was again amended, the
investigating judge of the Hamburg Regional Court specifying the
charges against the applicant by taking into account the evidence
collected against him. The warrant of arrest was again based on the
danger of the applicant's absconding.
On 28th June, 1965, the applicant made an application to the Hamburg
Court of Appeal requesting his release pending trial but this was
refused by decision of 20th August, 1965. The
Court referred to its decision of 31st July, 1963 confirming against
that there was considerable evidence of the applicant's guilt as a
principal (Täter oder Mittäter) and not simply as an accessory
(Gehilfe). It then found that the magnitude of the proceedings which
had not yet reached the stage when judgment could be passed, justified
his continued detention on remand.
A similar decision was taken by the above Court of Appeal on 2nd
December, 1965. The Court pointed out that the applicant was charged
with 17 counts of murder, the penalty for conviction on each count
being imprisonment for life. In these circumstances there was
considerable danger of absconding and this could not be eliminated by
any measure short of continued detention on remand.
The Hanseatic Court of Appeal decided again on 10th March, 1966 that
the applicant's detention should continue. The Court referred to its
previous decisions and pointed out, in particular, that the applicant's
conduct immediately preceding his arrest - he had returned of his own
free will to the Federal Republic of Germany from abroad - his
family-ties, business or property were not calculated to eliminate the
danger of flight.
A similar decision was taken by the Hamburg Court of Appeal on 7th
July, 1966, the Court simply referring to its decisions of 20th August,
1965, 2nd December, 1965, and 20th March, 1966.
On 21st October, 1966, the said Court of Appeal decided once more that
the applicant's detention on remand should continue. The Court stated
that the investigations extending to 17 separate counts of murder, each
involving up to 60 persons, were so complicated that it had not yet
been possible to bring the matter to a close. It had been necessary to
obtain evidence from numerous witnesses living abroad many of whom had
to be re-examined after their initial statements had been put to the
applicant. The applicant himself had contributed considerably to the
delay in that, at the beginning of the investigations against him, he
had made statements that were untrue and caused further investigations
to be made. This conduct exceeded the right of any accused person not
to make any statements at all.
The Court finally referred to the relationship between the individual's
right to liberty and the obligation on the part of the State of
ascertaining the complete facts of the case and of prosecuting
criminals. The Court held that, where Nazi crimes are involved, the
obligation of the State to complete its task was particularly important
and required the individual concerned to bear a restriction of his
personal freedom even more so than in a case involving an ordinary
criminal offense.
On 15th December, 1966, the Regional Court of Hamburg decided that the
applicant should be submitted to psychological and psychiatric
examination. In pursuance of that decision the applicant was in
hospital at Hamburg between 28th December, 1966 and 7th February, 1967.
On 19th April, 1967, the investigating judge of the Hamburg Regional
Court rejected another application made by the applicant for his
conditional release. The applicant appealed (Beschwerde) against this
decision to the Regional Court of Hamburg. The appeal was dismissed by
the Regional Court on 26th April, 1967 and his further appeal (weitere
Beschwerde) to the Hanseatic Court of Appeal was rejected on 16th May,
1967.
In their decisions, the Courts pointed out that under present
travelling conditions it was not difficult to cross borders, even
without proper identity papers. Once abroad, a person accused of having
committed Nazi crimes against Jews as opposed to a person accused of
normal crimes, would not have to fear being caught and extradited,
since there were numerous countries that refused extradition for Nazi
crimes. In addition, in was known that, acting in accordance with its
statutes, "Interpol" refused to give any assistance in these cases.
Consequently, in the opinion of the Courts, the applicant's appearance
for trial could be guaranteed only by keeping him in detention on
remand.
The Hanseatic Court of Appeal examined the lawfulness of the
applicant's detention on remand again on 12th September, 1967, and
decided that it should continue. It referred to the decision by which
the Regional Court had rejected, on 14th June, 1967, the applicant's
application to re-open the judicial investigation and had committed the
applicant for trial. Consequently, the authorities were prepared to
begin the trial during the next session of the Regional Court. The fact
that the applicant's lawyers had previous engagements and that,
therefore, the trial could not start before the end of March, 1968
could not be regarded as grounds for ordering his release pending
trial.
A similar decision was taken by the Court of Appeal on 14th December,
1967.
On 8th January, 1968 the Regional Court of Hamburg refused once more
to grant the applicant a conditional release from detention on remand.
This decision was confirmed on appeal to the Hanseatic Court of Appeal
on 19th January, 1968. The applicant had relied on the fact that
another person accused of Nazi crime, Dr. A., had been granted a
conditional release but the Courts, in refusing the applicant's
application, held that the circumstances of that case were to be
distinguished.
The last decision concerning the applicant's detention pending trial
was taken by the Hamburg, Court of Appeal on 20th March, 1968. The
Court stated that there had not been any unreasonable delay in
preparing for the trial in view of the complexity of the case and of
the previous engagements of the applicant's lawyers. Furthermore, the
trial court had, in the meanwhile, had time to consult the files
relating to the Nazi compensation claims in order to determine which
of the witnesses living abroad could be examined in Hamburg and which
should be heard abroad.
As stated above, the applicant was convicted for murder on 15th August,
1968 and sentenced to penal servitude for life. His appeal to the
Federal Court is still pending.
B. Whereas the proceedings before the Commission may be summarised as
follows:
The applicant was lodged on 16th October, 1967 and on 31st October,
1967 registered in the special register of the Secretariat of the
European Commission of Human Rights under file No. 3376/67.
On 4th April, 1968 a group of three members of the Commission examined
the application and unanimously expressed the opinion that it appeared
to be admissible. In pursuance of the group's report the President of
the Commission, on 5th April, 1968, made an order under Rule 45,
paragraph 2 of the Commission's Rules of Procedure that the application
should be communicated to the respondent Government and that the
Government should be invited to submit its observations in writing on
the admissibility of the application. Such observations were received
from the respondent Government on 6th June, 1968 and 28th October, 1968
and from the applicant on 16th April, 1968 and 24th June, 1968.
On 4th October, 1968 the Commission further decided that the Parties
should be invited, in pursuance of Rule 46, paragraph 1 of the Rules
of Procedure, to make oral submissions on the admissibility of the
application.
The oral hearing took place on 4th February, 1969. At the beginning of
the hearing the applicant's lawyer made, on behalf of the applicant who
was not himself present, certain preliminary objections against the
presence of the representative of the Public Prosecutor 's Office at
the Regional Court of Hamburg and against the intention of the
respondent Government that the latter should address the Commission.
After arguments on this point had been submitted by both sides, the
Commission decided, with reference to Article 36 of its Rules of
Procedure, not to allow the preliminary objections made on behalf of
the applicant.
Subsequently, the applicant's lawyer repeated his objection to the
Commission being addressed by the representative of the Hamburg Public
Prosecutor's Office and stated that he would be obliged to withdraw
from the hearing if his objection were rejected. He also requested
that, before leaving he should be allowed to make some oral submissions
on the admissibility of the applicant.
Again the Commission heard arguments from both sides on this point and
then decided to proceed with the hearing and to hear the
representatives of the respondent Government first. At this stage the
applicant's lawyer withdrew from the hearing. The Commission also
decided not to accept a written statement which the applicant's lawyer
had handed to the Commission before leaving the hearing. This statement
had been prepared by the applicant himself and had been intended to be
used as a basis for the oral submissions.
C. Whereas in his application form, and in his written submissions, the
applicant alleges a violation of Article 5, paragraph (3), in
conjunction with Article 6, paragraph (2), of the Convention;
Whereas the respondent Government has replied to these allegations in
its written observations of 6th June and 28th October, 1968, and at the
oral hearing on 4th February 1969;
Whereas the arguments of the Parties may be summarised as follows:
1. The respondent Government submitted that the applicant's complaints
regarding the length of his detention on remand were manifestly
ill-founded within the meaning of Article 27, paragraph (2) of the
Convention;
It pointed out at the outset that the problems with which the
authorities are confronted when dealing with Nazi crimes were of a very
special nature. These crimes had been sanctioned by the Government then
in power which had enacted laws and regulations in order to make their
criminal action appear lawful. They represented the result of a scheme
conceived to exterminate an entire People, the Jews, whenever and
wherever they could be found.
Investigating these crimes more than 20 years after their committal was
extremely difficult. Such investigations required the examination of
a large number of witnesses scattered all over the world whose
whereabouts could only be ascertained with great difficulty and who
were frequently not prepared to give evidence for fear of having to
recall to their memory the terrible events of the past.
In the case of the applicant, the prosecuting authorities had been
obliged to examine almost 500 witnesses in the Federal Republic of
Germany, Austria, Israel, Poland, France and the United States of
America. Some 90 of these witnesses had to be re-examined in view of
the fact that the applicant had changed his line of defence or
submitted new facts. The respondent Government pointed out that
photocopies of the entire files had been made and sent abroad in order
to facilitate the examination of witnesses and expedite the
investigation proceedings. Furthermore, the Public Prosecutor dealing
with the case had travelled to the United States of America on two
occasions to assist in the examination of witnesses in that country.
Moreover, the proceedings would not have been expedited if more than
one Public Prosecutor had been assigned to the applicant's case or if
a judicial investigation had been made at an earlier date. The
complexity of the matter required that the official dealing with the
case should be acquainted with all its details. Furthermore, it had
been more expedient to have the case thoroughly investigated by a
Public Prosecutor who dealt exclusively with Nazi crimes and was
familiar with their historical background than to transfer the case
prematurely to the investigating judge who is generally concerned with
other proceedings of ordinary delinquency and cannot devote his entire
time to the clarification of one single case involving a Nazi criminal.
On the other hand, according to the respondent Government, the
applicant's varying statements and the varying line of his defence had
prolonged the proceedings considerably. This had been done deliberately
in order to gain time since the applicant did not wish to be the first
person to be tried by a Hamburg court for Nazi crimes and also expected
that some of the witnesses might die or become otherwise unable to give
evidence against him at the trial. Finally, the respondent Government
submitted that it had not been possible to release the applicant
pending trial owing to the danger of his absconding. In that respect
it referred to the reasons given by the Hamburg courts in their
decisions relating to the applicant's continued detention on remand and
the Government also relied on the judgment of the European Court of
Human Rights in the "Wemhoff" Case (European Court of Human Rights,
"Wemhoff" Case, judgment of 27th June, 1968).
2. The applicant submitted that the investigation against him had not
been carried out with sufficient speed and stated, in particular, that
only one Public Prosecutor had been in charge of his case although it
was usual to employ several officials in such complex investigations.
Furthermore, the official concerned had simultaneously been occupied
by other cases. The applicant also considered that the Public
Prosecutor's Office should have requested a preliminary judicial
investigation as early as possible. A judge would have heard the
witnesses of the defence at an early stage of the proceedings. This,
however, had not been done by the Public Prosecutor.
The applicant also submitted that his own conduct had not protracted
the investigation proceedings. In particular, the evidence regarding
Mr. G. had been given by him not with the intention to mislead the
prosecuting authorities but simply to protect the wife and family of
Dr. S..
The applicant further submitted that there had been no danger of his
absconding and that he should have been released on bail. In
particular, he had no intention of leaving Hamburg where his family
lived and where he was engaged in business. He had returned from abroad
in 1961 at his own free will and had put himself at the disposal of the
authorities and had also facilitated the enquiries by making a full
confession. Furthermore, the principle of equality had been violated
in his case in that other persons accused of Nazi crimes, in particular
Dr. A., had been granted a conditional release from detention on
remand.
Finally, the applicant considered that any detention on remand of more
than 6 years constituted an anticipated conviction and sentence.
Referring to a remand prisoner's uncertainty as to the outcome of his
trial, he concluded that detention on remand for more than 6 years also
constituted a physical and psychological stress which was likely to
undermine the prisoner's health and his ability to defend himself.
THE LAW
Whereas Article 5, paragraph (3) (Art. 5-3), of the Convention states
that everyone arrested or detained in accordance with the provisions
of paragraph (1), sub-paragraph (c) of that Article (Art. 5-1-c) "shall
be entitled to trial within a reasonable time or to release pending
trial", whereby "release may be conditioned by guarantees to appeal for
trial";
Whereas Article 6, paragraph (2) (Art. 6-2), provides that "everyone
charged with a criminal offence shall be presumed innocent until proved
guilty according to law";
Whereas it is not disputed that the applicant was arrested on 7th
September 1961 on suspicion of murder; that he had been continually
detained since that date, his various applications for release from
custody having been rejected by the competent German courts; and that,
on 15th August, 1968 he was convicted by the Regional Court of Hamburg
for murder in 18 cases and sentenced to penal servitude for life.
Whereas the applicant alleges that his detention pending trial for over
six years constitutes a clear violation of Article 5, paragraph (3),
and 6, paragraph (2) (Art. 5-3, 6-2) of the Convention;
Whereas the respondent Government submits that the investigations in
the applicant's case concerned particularly serious offences; that the
case was extremely complex and difficult but nevertheless carried out
with the greatest possible expedition; and that it had not been
possible to guarantee the applicant's appearance before the court for
trial in any way other than keeping him in continuous detention on
remand;
Whereas, when determining the question whether or not the period of the
applicant's detention on remand was unreasonable within the meaning of
Article 5, paragraph (3) (Art. 5-3), the Commission must first decide
what period of detention is under consideration;
Whereas, in this respect, the Commission has had regard to the judgment
of the European Court of Human Rights in the "Wemhoff" Case (see
European Court of Human Rights, "Wemhoff" Case judgment of 27th June,
1968);
Whereas the European Court held that any period of detention clearly
starts with the applicant's arrest and ends on the date on which he was
convicted at first instance, since, on that date, the detention ceased
to be "effected for the purpose of bringing him before the competent
legal authority" within the meaning of Article 5, paragraph (1) (c)
(Art. 5-1-c), of the Convention but constituted detention "after
conviction by a competent court" within the meaning of Article 5,
paragraph (1) (a) (Art. 5-1-a);
Whereas the Commission finds accordingly that such period of detention
in the present case lasted from 7th September, 1961, being the date of
the applicant's arrest, until 15th August, 1968, being the date of his
conviction at first instance, namely a period of exactly six years,
eleven months and eight days.
Whereas, having regard to this period the Commission is called upon to
decide whether or not the applicant's provisional detention has been
prolonged beyond a reasonable time and was thereby contrary to Article
5, paragraph (3) (art. 5-3), of the Convention;
Whereas it has been established that he provisions of Article 5,
paragraph (3) (Art. 5-3), do not simply leave the national judicial
authorities with a choice between two obligations, namely that of
conducting within a reasonable time the proceedings until judgment or
that of releasing the accused pending trial, if necessary against
certain guarantees;
Whereas, on the contrary, they require that national courts determine,
in the light of the fact of the detention of the person being
prosecuted, whether the time that has elapsed before judgment is passed
has at some stage exceeded a reasonable limit, that is to say imposed
a greater sacrifice than could, in the circumstances, reasonably be
expected of a person presumed to be innocent. (see European Court of
Human Rights, "Wemhoff" Case, paragraph 5 of the Law);
Whereas it has also been established that this question is not to be
decided in abstracto but to be considered in the light of the
particular circumstances of each case; whereby the factors which may
be taken into consideration are extremely diverse (see European Court
of Human Rights, "Wemhoff" Case, paragraph 10 of the Law: see also
Appendix XI to the Commission's Report in the Wemhoff Case);
Whereas, having regard to the judgments of the European Court of Human
Rights in the "Wemhoff" and "Neumeister" Cases of 27th June, 1968, the
Commission finds that there are two principal questions which must be
examined when deciding upon the reasonableness of any period of
detention on remand;
Whereas, first, the Commission must determine whether the reasons given
by the national authorities to justify continued detention are relevant
and sufficient to show that detention on remand was not unreasonably
prolonged and thus contrary to Article 5, paragraph (3) (Art. 5-3), of
the Convention; and whereas, secondly, the Commission must determine
whether or not, even assuming that there was good cause not to release
the applicant pending trial, the national judicial authorities have
conducted the case in a manner which unreasonably prolonged the
detention on remand, thus imposing on the applicant a greater sacrifice
in the interest of public order than could normally be expected of a
person presumed to be innocent.
Whereas, in respect of the first of these questions it is to be
observed that, in the present case, the arrest warrant issued on 16th
August, 1961 was expressly based on the ground that the applicant would
abscond if he were left at liberty; whereas, this reason continued to
be invoked in the court decisions in which, on numerous occasions, the
lawfulness of his continued detention was examined ex officio and in
which the applications made by the applicant for his conditional
release were rejected;
Whereas, the Commission notes that present day border controls are
calculated to facilitate international travel and are not, therefore,
strictly enforced, that, in view of the special nature of the crimes
concerned, various countries refuse to extradite persons accused of
such crimes; whereas consequently, there are few technical obstacles
which would have prevented the applicant from leaving the Federal
Republic of Germany and that he would not have run any considerable
danger of being caught and extradited, after having taken up residence
in a country refusing extradition for Nazi crimes;
Whereas the Commission finds that the danger of absconding increases
as the investigations continue and the evidence against the accused
gradually accumulates; whereas, in the present case, the evidence
collected was continually put before the applicant who was able to
state his views thereof; whereas, therefore, he was fully aware of the
state of the investigation and knew that there was considerable
evidence against him thereby making his conviction more and more
probable;
Whereas, furthermore, the applicant was accused of murder in several
cases involving a large number of victims; whereas, under the
applicable law, he faced imprisonment for life even if he should be
convicted on only one count of murder; whereas it is true that,
generally speaking, the risk of an accused person absconding diminishes
as detention continues and it tends to reduce the balance of the
sentence which he may expect to have to serve; whereas, however, such
reasoning does not apply where the accused is charged with murder the
penalty for which is penal servitude for life;
Whereas the Commission notes that the German courts assumed that the
applicant would, if he were set free, abscond and would thereby,
subsequently, avoid appearing for trial even if certain financial or
other guarantees were previously obtained from him; whereas, for the
reasons stated above, the Commission considers that the grounds relied
on by the courts in reaching this assumption were relevant and
sufficient;
Whereas, on the other hand, as has been stated above, the danger of
absconding, however justified such danger must be, cannot alone exempt
the judicial authorities from the obligations imposed by Article 5,
paragraph (3) (Art. 5-3), of the Convention where they themselves are
shown to have conducted the case in a manner which has unreasonably
prolonged the applicant's detention on remand;
Whereas, in this respect, the Commission had regard to the complexity
of the present case and also to the conduct of the applicant himself
in connection with the proceedings against him; whereas it has noted
the special nature of the charges laid against the applicant;
Whereas the crimes with which the applicant was charged and on which
he was finally convicted and sentenced at first instance, were
committed more than 20 years ago; whereas they were not directed
against a
single person or a small group of persons but involved numerous victims
since they were part of a large scale scheme calculated to exterminate
the Jews as an entire people; whereas, furthermore, the persons who
survived and who are primarily in a position to give evidence of these
crimes, are widely scattered;
Whereas, in the present case, it had been necessary for the prosecuting
authority not only to establish the extent to which crimes had been
committed by the applicant, but also to find out whether he had acted
as a principal or as an accessory;
Whereas in order to achieve this task the prosecuting authority had
been required first to obtain a general picture of the situation
existing in Poland and particularly at the Rabka School in 1942/43 and
to reconstruct the hierarchical order of command within the SS at the
time;
Whereas, subsequently, various witnesses had been heard, in Germany and
abroad, as to the question whether and to what extent the applicant had
received orders from the Officer in Charge of the Security Police, Dr.
G..
Whereas it had become clear from the evidence collected that it had not
been possible for the applicant to have received any orders from Dr.
G.; whereas, when confronted with this evidence, the applicant had been
obliged himself to admit that he had not been telling the truth;
whereas he attempted to justify himself by explaining that he had
wished to protect the wife and family of the former Commanding Officer
of the Security Police, Dr. S.; whereas on two further occasions the
applicant made statements to the investigation authority which turned
out to be untrue; whereas the Commission finds that, regardless of
whether or not an accused person is, in principle, entitled to make
misleading statements to the prosecuting authority with regard to the
charges laid against him, he must bear the consequences as to any
resultant prolongation of the investigations;
Whereas, furthermore, the Commission has noted that, in the course of
the proceedings against the applicant, it had been necessary to examine
some 500 witnesses, 90 of whom had to be re-examined following the
counter-allegations made by the applicant when the evidence of these
witnesses was put to him; that it had been necessary to hear a
considerable number of these witnesses abroad, particularly in Israel
and the United States of America; that, in order to expedite the
examination of the witnesses living abroad, photocopies of the files
had been prepared and that the Public Prosecutor dealing with the case
had himself been in the United States of America to assist in the
examination of witnesses there; whereas the Commission appreciates
that, in view of the special interest that these trials involving Nazi
crimes create not only in the Federal Republic of Germany but in other
countries as well, a very thorough investigation had been necessary in
order to ensure that the persons guilty of such crimes are brought to
justice;
Whereas, in the Commission's opinion, the prosecuting authorities, in
investigating the case against the applicant, were faced with such
exceptional difficulties as do not arise in normal criminal cases;
Whereas, in the circumstances, the Commission cannot follow the view
expressed by the applicant that the proceedings would have been
expedited if more than one Public Prosecutor had been assigned to his
case or if a judicial investigation had been made at an earlier date,
since any such action could not as such have facilitated the
investigations;
Whereas the Commission has further noted that the preliminary judicial
investigation which had been opened on 21st April, 1965, had been
closed, the applicant having refused to make any statement in the
absence of his counsel who had been prevented from attending; that
subsequent to the service of the indictment on his counsel on 15th
November, 1965, the applicant requested extensions of time by several
months to answer the charges laid against him; that the hearing of the
applicant by the investigating judge during the new preliminary
judicial investigation had to be postponed on the ground that the
applicant's defence counsel had previous engagements; that for mainly
the same reason, the trial against the applicant did not start until
almost a year after he had been committed for trial; whereas,
therefore, the delays between 1965 and 1968 had been to a large extent
necessary in order to ensure that the applicant's defence was properly
carried out;
Whereas, for these reasons, the Commission finds that the investigating
and judicial authorities have conducted the case in such a manner as
not to prolong the detention of the applicant beyond limits which were
reasonable, having regard not only to the particularly grave nature of
the charges against him but also to the fact that part of the delay
which actually occurred in bringing him to trial must be ascribed to
other factors than their conduct of the case;
Whereas, in this respect, the present application is to be
distinguished from Application No. 2604/65, Heinz JENTZSCH v. the
Federal Republic of Germany (Collection of Decisions, Vol. 25, page 15)
which was declared admissible by the Commission on 19th December, 1967;
whereas in that case the Commission was also concerned with the
application of a person who was accused of Nazi crimes and detained on
remand during a period of more than six years; whereas, however, the
investigation proceedings against JENTZSCH had been opened in 1961 by
the office of the Public Prosecutor in Hamburg, had then been
transferred to the Public Prosecutor's Office in Berlin in 1962 an
finally in 1963 to the Public Prosecutor's Office in Cologne, which had
closed the investigation 1965 and preferred the charges against the
applicant at his trial in 1967; whereas JENTZSCH considered that the
transfer of his case from Hamburg to Berlin, and subsequently from
Berlin to Cologne, had caused a considerable delay in the
investigations which could have been avoided; whereas the respondent
Government contended that the transfers had been unavoidable on legal
grounds, and, in any event, had not caused any substantial delay in the
proceedings; whereas, on the basis of these facts and of the particular
circumstances of the case, the Commission found that application could
be regarded as manifestly ill-founded within the meaning of Article 27,
paragraph (2) (Art. 27-2), of the Convention and that its determination
should depend upon an examination of merits;
Whereas, as has been stated above, the facts of the present case
clearly warrant the conclusion that the judicial authorities have not
caused any unreasonable delay in bringing the applicant to trial;
Whereas, therefore, the Commission finds that the case does not
disclose any appearance of a violation of the rights and freedoms set
forth in the Convention and in particular, of Articles 5, paragraph
(3), and 6, paragraph (2) (Art. 5-3, 6-2);
Whereas it follows that the application is manifestly ill-founded and
must be rejected in accordance with Article 27, paragraph (2)
(Art. 27-2), of the Convention;
Now therefore the Commission declares this application INADMISSIBLE