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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. THE FEDERAL REPUBLIC OF GERMANY - 3843/68 [1969] ECHR 19 (19 December 1969) URL: http://www.bailii.org/eu/cases/ECHR/1969/3843_68.html Cite as: [1969] ECHR 19

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THE FACTS

Whereas the facts presented by the applicant may be summarised as
follows:

The applicant is a German citizen, born in 1943 and at present in
detention on remand in Cologne.

From the applicant's statements and documents he has submitted it
appears that he was arrested on suspension of theft on .. April 1965.
He remained in detention on remand until .. August 1966, when he was
released on bail.

On .. March 1967, the applicant was again arrested on suspicion of
having committed three further thefts in the meantime. The applicant
claims, however, that he was innocent of these new offenses and that
he had been falsely accused by his wife out of revenge, because he had
left her for another woman.

The trial against the applicant and his 18 co-defendants, including
several members of his family, before the Regional Court (Landgericht)
of Bonn opened on .. March 1967, and lasted until .. June 1967, when
the Court passed judgment on all the defendants. The applicant was
convicted of 41 cases of aggravated theft, 30 cases of attempt to
commit such theft, 5 cases of theft and 1 case of fraud and sentenced
to a total term of seven years' penal servitude.

The applicant complains that he was wrongly convicted of the offenses
with which he had been charged by his wife. He maintains that the Court
failed in its duty to establish the truth in this respect and, in
particular, to call certain witnesses requested by him. He claims that
these witnesses were not heard as they, according to the Public
Prosecutor, were only gypsies and vagrants. He suffered substantial
prejudice during both the investigations and the trial because of
statements made by his younger brother Arthur who had a long criminal
record and, in the present proceedings, was found guilty of a very
large number of serious offenses.

The applicant lodged an appeal (Revision) with the Federal Court
(Bundesgerichtshof) against his conviction and sentence which still is
pending.

In June 1968, the applicant requested that he should be released. He
submitted that there was no danger of his absconding since he intended
to live with his wife, with whom he had been again reconciled, and
their children. His wife was now prepared to admit that she had falsely
accused him of the offenses concerned. His request was, however,
rejected by the Regional Court on .. June 1968. Two further requests
proved equally unsuccessful and an appeal to the Court of Appeal
(Oberlandesgericht) of Cologne was dismissed as being unfounded on ..
November 1968.

The applicant submits that, on .. December 1968, he was seized with
severe bilious pains which required immediate medical attention and he
asked for a doctor. When no doctor had arrived more than three hours
later, about 11 pm, the applicant knocked on the cell door to attract
the attention of the prison officers. Four prison officers then came
to his cell and started to beat him. Afterwards he was left lying on
the floor of the cell, although he was bleeding heavily from the mouth
and chin. About five hours later he was taken to see the prison doctor.

He was subsequently examined by a specialist at the University Clinic
in Bonn. According to the resulting medical report, dated .. December
1968, the applicant was suffering from a stomach and duodenal ulcer.
On .. December 1968, the applicant was transferred for medical care to
the hospital at Bochum.

On .. January 1969, the Regional Court rejected a new request for
release. The Court stated that the above medical report showed that the
applicant was fit for detention but in need of treatment. However, he
had without valid reasons refused the treatment offered at Bochum and
therefore been returned to the prison at Bonn. In view of a further
order by the presiding judge that the applicant should undergo
treatment in the Bochum hospital, there was no danger for the
applicant's health even if his detention continued. The applicant's
appeal against this decision was dismissed as unfounded by the Court
of Appeal in decisions of .. and .. January 1969.

The applicant then lodged an appeal against the Court of Appeal's
decisions with the Federal Constitutional Court
(Bundesverfassungsgericht) which, however, was declared inadmissible
on .. March 1969, on the ground that it had not been submitted in
proper form.

It appears that the Regional Court in March 1969 rejected a further
application for release, inter alia, on the grounds that the applicant
had recently absconded from the hospital.

From decisions submitted by the applicant it again appears that, on ..
April 1969, the Regional Court rejected an application for release made
by the applicant. The Court held that the applicant's detention on
remand was still justified for the reasons previously stated by the
courts, ie a strong suspicion of having committed the offenses
concerned, the danger of flight and the absence of any of the grounds
for release provided for in Article 116 of the Code of Criminal
Procedure (Strafgesetzbuch). The Court also emphasised that the
applicant had twice absconded.

The Court pointed out that the applicant's detention on remand had
lasted from .. April 1965, until .. August 1966, from .. March 1967
until .. February 1968, and from .. April 1968, onwards, ie by then for
a total of 3 years and 3 months. However, the applicant had been
convicted of a large number of offenses and sentenced to a total of
seven years' penal servitude and there was no reason to believe that
his appeal would succeed.

The Court further held that the provisions of Articles 5, paragraph
(3), and 6 paragraph (1), of the Convention had so far not been
violated. In view of the extent and difficulty of the investigations
concerned the period of detention preceding the pronouncement of the
judgment on .. June 1968, was clearly justified. Neither had the
applicant's continued detention pending appeal reaching such a stage
that his human rights had been violated. This would only be the case
if the proceedings had not been conducted with sufficient expediency.
Neither the Court nor the Public Prosecutor's Office could, however,
be accused of this.

The preparation of the judgment which comprised 556 pages as well as
the further handling of the case in which 14 of the defendants had
appealed required considerable time. Accordingly, the fact that the
files had not been transmitted to the Federal Attorney General
(Generalbundesanwalt) until .. September 1968, could not give rise to
criticism. The latter had twice returned the files to the Public
Prosecutor's Office on the ground that the judgment had not been
properly issued.

On .. October 1968, the reason given for the return of the files was
that the date when the minutes of the trial had been completed had not
been served on the parties. After the judgment had again been served
on them and the grounds of appeal submitted the Attorney General on ..
February 1969, again returned the files on the ground that the judgment
had not on two occasions been served on persons who had been authorised
to receive such documents by the defence counsels concerned. As a
result of these procedural errors the proceedings had been delayed for
about half a year. In view of the complexity of the case, it could,
however, be said with certainty that the Federal Court would not by
then have been able to give a decision, even if this delay had never
occurred. In any event, delays of this kind for which nobody could be
held responsible, could not be considered to be of such a serious
nature that a person in detention on remand would not have to put up
with them (in Kauf nehmen).

On .. May 1969, the Court of Appeal confirmed this decision.

The applicant lodged, however, several further complaints concerning
his detention. On .. July 1969, the Regional Court decided that the
applicant's detention should continue. The Court first stated that
reasons given in the decision of .. April 1969, were still valid. As
regards the provisions of Article 5, paragraph (3), of the Convention
a new circumstance was, however, to be taken into consideration, namely
that the files had only been returned to the Attorney General on .. May
1969. Owing to pressure of other work the official charged with
preparing the case would therefore not be able to transmit the case to
the Federal Court before the end of the autumn of 1969. Unless the
appeal would be rejected by summary decision (durch Beschluß), the
hearing could only take place in early 1970.

Assuming that Article 5, paragraph (3), applied until the conviction
had obtained the force of res judicata, the Court then examined the
question as to whether the notion of "reasonable time" in the said
paragraph should be given a different interpretation as regards the
period of detention subsequent to conviction by a court of first
instance. The Court answered this question in the affirmative. Less
consideration could be given to the applicant's wife and the alleged
possibility of saving their marriage if the applicant was released
since she had been an accomplice. In addition, the applicant had
recently applied for legal aid in order to bring an action for divorce.

Considering all these circumstances, as well as the fact that the
applicant had no previous criminal record and therefore possibly could
count on being conditionally released, the Court concluded that, for
the time being, the conditions under which the applicant should be
released from detention on remand by virtue of Article 5, paragraph (3)
of the Convention were not yet satisfied.

The applicant then lodged an appeal against the decisions of .. May and
.. July 1969, with the Federal Constitutional Court which, however, was
declared inadmissible on .. November 1969. No reasons were given for
this decision.

It appears that the Court of Appeal rejected a further request for
release on .. October 1969. As the applicant has neither submitted a
copy nor indicated the reasons for the decision.

The applicant complains of the length of his detention on remand and
the resulting hardships, in particular, the sufferings it causes his
wife and children. He complains that the Federal Court has not yet
decided on his appeal and that no decision is expected for some time.
In addition, all his co-defendants, including his brother Arthur Liebe,
have now been released and his continued detention can therefore not
be justified.

He does not invoke any specific Article of the Convention.

THE LAW

Whereas the applicant first complains of the length of his detention
on remand; whereas Article 5, paragraph (2) (Art. 5-2) of the
Convention states that "everyone arrested or detained in accordance
with the provisions of paragraph (1) of that Article (Art. 5-1) shall
be entitled to trial within a reasonable time or to release pending
trial";

Whereas it is further to be observed 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; whereas, before examining the
question whether or not 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 and determine whether the applicant has exhausted the
domestic remedies available to him in this respect;

Whereas it is noted from the applicant's submissions that he has been
subject to three periods of detention on remand, namely from .. April
1965 until .. August 1966, from .. March 1967, until .. February 1968,
and from .. April 1968 and since;

Whereas, it regards the first two of these periods of detention, it is
to be observed that the applicant has not submitted any information as
to any court decisions taken on his appeal or otherwise;

Whereas, therefore, he has failed to show that he exhausted the
remedies available to him under German law;

Whereas, as regards the subsequent period of detention ie from .. April
1968, onwards, it is to be observed that the applicant was convicted
and sentenced at the Regional Court has had regard to the judgment of
the European Court of Human Rights in the "Wemhoff" case (European
Court of Human Rights, "Wemhoff" case, judgment of 27 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 also refers to
its decision on the admissibility of Application No. 3376/56 (Rosenbaum
v. Federal Republic of Germany, Collection of Decisions, Vol. 29, p.
31);

Whereas the Commission finds accordingly that the remaining period of
detention to be considered under Article 5, paragraph (3) (Art. 5-3)
of the Convention, in the circumstances of the present case only lasted
from .. April until .. June 1967; whereas the applicant has again not
submitted any information as to what steps he undertook to obtain his
release during the period in question; whereas therefore he has, also
as regards this period of detention, failed to show that he exhausted
the remedies available to him under German law;

Whereas, moreover, an examination of the case as it has been submitted,
including an examination made ex officio, does not disclose the
existence of any special circumstances which might have absolved the
applicant, according to the generally recognised rules of international
law, from exhausting the domestic remedies at his disposal;

Whereas, therefore, the condition as to the exhaustion of domestic
remedies laid down in Articles 26 and 27, paragraph (3) (Art. 26, 27-3)
of that Convention has not been complied with by the applicant;

Whereas the same ground of inadmissibility applies to the applicant's
complaints concerning his conviction and sentence;

Whereas in this respect it is to be noted that the applicant's appeal
against conviction and sentence is still pending before the Federal
Court;

Whereas, insofar as the applicant can be said to complain of the length
of the proceedings against him, the Commission has had regard to
Article 6, paragraph (1) (Art. 6-1), of the Convention which states
that "in the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable
time";

Whereas the Commission finds that in the circumstances of the present
case, the period to be considered under paragraph (1) of the said
Article (Art. 6-1) started to run .. August 1965, the date on which the
applicant was first arrested, and is still running, ie a period of
almost three years and four months;

Whereas, having regard to this period, the Commission is called upon
to decide whether or not the proceedings against the applicant have
been prolonged beyond a reasonable time contrary to Article 6,
paragraph (1) (Art. 6-1), of the Convention;

Whereas, however, it is first to be noted that, in its present state,
the case-file does not contain any detailed information as to the
progress of the proceedings against the applicant, in particular with
regard to the period prior to his trial; whereas, from the applicant's
own statements and documents he has submitted, it appears that,
following his release from the first period of detention on remand, on
.. August 1966, he allegedly committed a number of further offenses,
of which he was subsequently convicted at the Regional Court, and went
into hiding until he was again arrested on .. March 1967;

Whereas, secondly, the Commission observes that the investigations and
court proceedings concerned dealt with a large number of serious
offenses and involved 18 other persons who were together accused with
the applicant; whereas in this connection the Commission refers to its
decision of 4 December 1968 on the admissibility of Application No.
3684/68 lodged against the Federal Republic of Germany by the
applicant's brother Y which concerned the same proceedings;

Whereas the Commission finds that the particular circumstances of the
present case, as it has been submitted, do not warrant the conclusion
that the proceedings against the applicant have exceeded a "reasonable
time" within the meaning of Article 6, paragraph (1) (Art. 6-1), of the
Convention;

Whereas it follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 27,
paragraph (2) (Art. 27-2), of the Convention;

Whereas, insofar as the applicant complains of having been refused
adequate medical care during his detention, an examination of the case
as it has been submitted, including an examination made ex officio,
does not disclose any appearance of a violation of the rights and
freedoms set forth in the Convention; whereas it follows that also this
part of the application is manifestly ill-founded within the meaning
of Article 27, paragraph (2) (Art. 27-2), of the Convention;

Whereas, finally, insofar as the applicant complains that he has been
ill-treated by prison officers, it is again to be observed 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 whereas the
applicant has failed to show that he had raised any complaint in this
respect before the competent courts and authorities;

Whereas, therefore, he has not exhausted the remedies available to him
under German law; whereas, therefore, the condition as to the
exhaustion of domestic remedies laid down in Articles 26 and 27,
paragraph (3) (Art. 26, 27-3) of that Convention has not been complied
with by the applicant.

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE