CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 1993

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 19791/92                       by B.H.                       against Germany           The European Commission of Human Rights (First Chamber) sitting in private on 13 October 1993, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 30 January 1992 by B.H. against Germany and registered on 1 April 1992 under file No. 19791/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as they have been submitted by the parties, may be summarised as follows.         The applicant, born in 1962, is a German national.   When lodging his application he was detained at a psychiatric hospital at Wiesloch. Since February 1993 the applicant has been represented in the proceedings before the Commission by Mr. Sieh, a lawyer practising in Wiesloch.         On 2 April 1988 the applicant was arrested on the suspicion of murder or manslaughter, namely of having killed a young woman.   On 3 April 1988 the Freiburg District Court (Amtsgericht) ordered his detention on remand.         Furthermore, on 27 April 1988 separate investigation proceedings were instituted against the applicant on the suspicion of having raped another woman.         On 7 October 1988 the Karlsruhe Court of Appeal (Oberlandes- gericht) ordered the applicant's continued detention on remand.   The Court of Appeal stated that the proceedings had been duly furthered, and that the investigations, due to their complexity, had not yet been completed.         In December 1988 the Freiburg Public Prosecutor's Office (Staats- anwaltschaft) received a report on the state of investigations by the Freiburg Criminal Investigation Department (Kriminalpolizei), according to which a forensic expert opinion as to the circumstances of the offence was to be prepared in order to provide a basis for psychiatric expert opinions on the applicant's criminal responsibility. Furthermore, the applicant's defence counsel was given access to the file, and he was asked for information whether the applicant intended to make any statements on the charge against him.   Moreover, the investigation files were copied.         On 9 January 1989 the Karlsruhe Court of Appeal ordered the applicant's further detention on remand.         On 26 January 1989 the Freiburg Public Prosecutor's Office instructed the forensic expert Dr. R. to prepare the above-mentioned opinion on elements of the offence in question.   The copied set of the files was transmitted to him.   In February 1989 the expert announced that his opinion was to be ready by the end of March 1989.         On 9 March 1989 the Freiburg Public Prosecutor's Office discussed with counsel the question of choosing the psychiatric and psychological experts to be appointed in the applicant's case.   There was agreement that the experts could only be chosen after receipt of the forensic expert opinion.         On 6 April 1989 the Karlsruhe Court of Appeal again ordered the applicant's continued detention on remand.   The Court of Appeal noted that the forensic expert opinion had not yet been received, and that further experts could only be appointed thereafter.   Having regard to the seriousness of the charge against the applicant, the length of his detention on remand was not disproportionate.         On 10 April 1989 the forensic expert informed the Public Prosecutor's Office that the opinion was complex and necessitated further experiments, and could only be terminated by the end of April 1989.   The applicant's defence counsel was informed accordingly.         On 18 May 1989, following an inquiry, the Public Prosecutor's Office received the forensic expert opinion, a copy of which was sent to the applicant's defence counsel.         On 4 July 1989 the Prosecutor's Office discussed the question of choosing psychiatric and psychological experts with defence counsel. He informed the prosecution that the applicant continued not to make any statements on the charge against him.         On 14 July 1989 the Karlsruhe Court of Appeal, having regard to the further steps in the investigations, ordered the applicant's continued detention on remand.         On 25 July 1989 the applicant's defence counsel made proposals as to the appointment of the psychiatric expert and of the psychological expert.         In August 1989 the Public Prosecutor's Office instructed the psychiatric expert Prof. S., one of the experts proposed by the applicant, to prepare an opinion as to the applicant's criminal responsibility.   Prof. S. was requested to inform the Prosecutor's Office in time, should he consider a supplementary opinion by a psychological expert necessary.   Copies of the files were submitted to him.   Defence counsel was informed accordingly.         In September 1989 the Freiburg District Court, upon the request of Prof. S., ordered the applicant's transfer to a prison in Hamburg in order to arrange for an observation by Prof. S. and Dr. M., one of the psychological experts proposed by the applicant.         On 13 October 1989 the Karlsruhe Court of Appeal again ordered the continuation of the applicant's detention on remand.   The Court of Appeal found that, having regard to the seriousness of the charge against the applicant and the sentence he expected in case of his conviction, the length of his detention on remand was not disproportionate.   The proceedings had not yet been completed due to the complexity of the investigations.         In November 1989 the prosecution authorities were informed by Prof. S. that the applicant's psychiatric and psychological examination would continue until mid-December 1989, and that the written version of his expert opinion would be ready by the end of January 1990.   On 1 December 1989 the Freiburg Public Prosecutor's Office requested Prof. S. to inform them, possibly by phone, about the termination of the applicant's examination and its result, and to pass this request on to Dr. M., the second expert.   On 6 December 1989 Prof. S. informed the Prosecutor's Office that the examination was terminated, and that both expert opinions could be expected for January 1990.   The applicant was transferred back to the Freiburg Prison.         At the end of December 1990 review proceedings were again pending before the Karlsruhe Court of Appeal.   On 5 January 1990 Prof. S., upon inquiry of one of the judges dealing with the applicant's case, stated that it could be excluded that the applicant was not criminally responsible.   The applicant's defence counsel was informed accordingly.         On 12 January 1990 the Court of Appeal decided that the applicant's detention on remand should continue.   The Court of Appeal stated in particular that there was a reasonable suspicion that the applicant had committed the crime in question.   Having regard to his attempt to abscond shortly after his arrest and taking into account the seriousness of the charges against him, there was a danger of his absconding.   The Court of Appeal also found that his continued detention on remand was proportionate in view of the extensive investigations involving expert opinions concerning matters of forensic medicine and expert opinions as regards the applicant's criminal responsibility.   The Court of Appeal stated in particular that there had been an avoidable delay in the investigations in that the Public Prosecutor's Office, after the information given by Prof. S. that he had completed the examination of the applicant, had failed to ask for a provisional opinion whether the applicant's criminal responsibility was excluded.   On the basis of such provisional information, the indictment could have been prepared to a large extent.   However, as this delay only amounted to one month it could still be accepted.         On 7 February 1990 the Freiburg Public Prosecutor's Office received the expert opinion of Dr. M. which was dated 20 January 1990. On 19 February 1990 the expert opinion prepared by Prof. S. which was dated 20 December 1989 was received.   Both opinions were submitted to defence counsel.         On 1 March 1990 the Public Prosecutor's Office preferred the indictment against the applicant on the charge of in particular murder. On 7 March 1990 the indictment concerning the charge of rape was preferred with a request for a joinder of the two proceedings.   The Presiding Judge of the competent Chamber (Schwurgerichtskammer) at the Freiburg Regional Court (Landgericht) asked the experts and defence counsel for comments on the envisaged date for the trial, namely April to October 1990.         On 24 April 1990 the Court of Appeal ordered the applicant's further detention on remand.   The Court of Appeal noted that the Public Prosecutor's Office had received two psychiatric expert opinions on the applicant's mental health in February 1990, and had meanwhile preferred the indictment.   The date of the trial had been discussed with the experts and the applicant's defence counsel and 19 September 1990 was the earliest possible date for the trial.         On 27 June 1990 the Federal Constitutional Court (Bundesver- fassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) about the decision of 24 April 1990. The Constitutional Court considered that the applicant's continued detention on remand could not yet be objected to under constitutional law.   The Constitutional Court noted that numerous witnesses had been heard and that expert opinions had been necessary.   Thus the overall length of the preliminary investigations from April 1988 until the indictment in March 1990 could not be held against the prosecution authorities, although there might have been some periods of delay.   The fixing of the trial for September 1990 was not due to the workload of the Regional Court, but there had been a coordination.         On 10 July 1990 the Freiburg Regional Court committed the applicant for trial as regards the charge of rape, on 12 July 1990 the Regional Court also committed the applicant for trial as regards the charge of murder, and it joined both proceedings.   It further ordered the applicant's continued detention on remand.         On 26 July 1990 the Karlsruhe Court of Appeal ordered the applicant's further detention on remand.   The Court of Appeal, referring to its earlier decision, considered in particular that the investigations against the applicant had been duly furthered.   It noted that the applicant had been committed for trial on 12 July, and that the trial was scheduled to start on 19 September 1990.         On 3 August 1990 the Presiding Judge at the Freiburg Regional Court fixed 19 September 1990 as date for the start of the trial against the applicant, which was to be continued in September and October 1990.         On 18 September 1990 the Federal Constitutional Court refused to admit the applicant's constitutional complaint about the decision of 26 July 1990 on the ground that it offered no prospect of success.   The Constitutional Court found that the length of the applicant's detention on remand could still be accepted from a constitutional point of view. It noted that the trial had in the meantime been fixed.   Furthermore, the decision in question did not disclose any arbitrariness and had regard to all relevant aspects and arguments put forward by the applicant.   The decision was served on 19 September 1990.         On 20 December 1990 the Freiburg Regional Court convicted the applicant of manslaughter, rape, unlawful coercion and deprivation of liberty, sentenced him to eleven years' imprisonment, and also ordered his detention in a psychiatric hospital.   In fixing the sentence, the Regional Court had regard to the extraordinary length of the applicant's detention on remand, which, due to his personality, put a particular strain on him.         On 16 July 1991 the Federal Court of Justice (Bundesgerichtshof) dismissed the applicant's appeal on points of law (Revision).   The decision was served on 31 July 1991.         According to S. 449 of the German Code of Criminal Procedure (Strafprozessordnung) a criminal conviction and sentence must not be executed unless the judgment has become final (rechtskräftig).     COMPLAINTS   1.     The applicant complains under Article 5 para. 3 of the Convention about the length of his detention on remand.   2.     He also complains under Articles 3 and 6 of the Convention about his conviction of 20 December 1990, and of the proceedings concerned.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 30 January 1992 and registered on 1 April 1992.         On 1 July 1992 the Commission decided to communicate the application to the respondent Government for observations on the admissibility and merits.         On 8 October 1992 the Government submitted their observations.         On 2 December 1992 the applicant was granted legal aid.         The applicant submitted observations in reply on 13 December 1992, which were amended by counsel on 13 April 1993.   On 18 June 1993 the Government supplemented their observations.     THE LAW   1.     The applicant complains under Article 5 para. 3 (Art. 5-3) of the Convention about the length of his detention on remand.         Article 5 para. 3 (Art. 5-3), so far as relevant, provides as follows:         "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."   a.     The respondent Government consider that the applicant can no longer claim to be the victim of a violation of his right under Article 5 para. 3 (Art. 5-3), as any possible breach was remedied by the Freiburg Regional Court's judgment of 20 December 1990.         The Commission notes that the Freiburg Regional Court, in the said judgment of 20 December 1990, convicted the applicant in particular of manslaughter and rape, sentenced him to eleven years' imprisonment, and also ordered his detention in a psychiatric hospital. In fixing the sentence, the Regional Court took into account that the applicant's detention on remand had attained an extraordinary length and thereby put a particular strain on him.         The Commission recalls that, as regards complaints about a breach of Article 6 para. 1 (Art. 6-1), mitigation of sentence and discontinuance of prosecution on account of the excessive length of proceedings do not in principle deprive the individual concerned of his status as a victim within the meaning of Article 25 (Art. 25), unless the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention (Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, p. 30, para. 66).         The Commission finds that the Freiburg Regional Court, though referring to an extraordinary length of the applicant's detention on remand, did not thereby make any finding of a violation of Article 5 para. 3 (Art. 5-3).   Moreover, this length and its impact on the applicant were only indeterminate elements in fixing his sentence.         Consequently, the applicant may still claim to be victim of a violation of his right under Article 5 para. 3 (Art. 5-3) of the Convention.   b.     The Government also submit that the applicant failed to exhaust domestic remedies, as required by Article 26 (Art. 26) of the Convention, on the ground that he did not lodge a constitutional complaint with the Federal Constitutional Court regarding his conviction, as confirmed by the Federal Court of Justice on 16 July 1991.         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.         The Commission notes that the applicant lodged a constitutional complaint against the Karlsruhe Court of Appeal's decision of 24 April 1990 ordering his continued detention on remand.   This complaint was rejected by the Federal Constitutional Court on 27 June 1990. Furthermore, the applicant unsuccessfully lodged a constitutional complaint against the Court of Appeal's decision of 26 July 1990 on the continuation of his detention on remand.   In its decision of 18 September 1990, the Federal Constitutional Court took into account that a date for the trial had in the meantime been fixed, and its considerations thus also covered this period.         In these circumstances, the Commission considers that the applicant could not be expected, under Article 26 (Art. 26) of the Convention, to lodge a further constitutional complaint about the length of his detention on remand (cf. No. 11703/85, Dec. 9.12.87, D.R. 54 p. 116).         The applicant's complaint under Article 5 para. 3 (Art. 5-3) cannot, therefore, be rejected under Article 26 (Art. 26) of the Convention for non-exhaustion of domestic remedies.   c.     The Commission further observes that, under Article 26 (Art. 26) of the Convention, a matter must be raised before the Commission within six months from the date on which the final decision was taken.         As regards the applicant's complaint about the length of his detention on remand, the Commission notes that the decision of the Federal Constitutional Court of 18 September 1990 was served on 19 September 1990.         The applicant's detention on remand, which had started at the date of his arrest on 2 April 1988, ended, for the purposes of Article 5 para. 3 (Art. 5-3) of the Convention, on 20 December 1990 when he was convicted at first instance (cf. Eur. Court H.R., B. v. Austria judgment of 28 March 1990, Series A no. 175, pp. 14-16, paras. 36-38).         The applicant lodged his present application on 30 January 1992, i.e. not within six months after either the Constitutional Court's second decision or the termination, for the purposes of Article 5 para. 3 (Art. 5-3), of his detention on remand.   However, he complied with the six-months-rule in respect of the judgment of the Federal Court of Justice of 16 July 1991 on his appeal on points of law against his conviction, which was served on 31 July 1991.         The Commission finds that, under Article 26 (Art. 26) of the Convention, the applicant could not be expected to complain about the length of his detention on remand until termination of the criminal proceedings against him as a whole, where the trial courts were in a position to review the length of his detention on remand and, in fixing the sentence, give redress, if they should have established a breach of Article 5 para. 3 (Art. 5-3) (see, mutatis mutandis, No. 11755/85, Dec. 9.7.87, D.R. 53 p. 166).         The Commission considers that, in these circumstances, this part of the application cannot be rejected under Article 26 (Art. 26) for non-compliance with the time-limit of six months.   d.     The Government further submit that the overall length of the applicant's detention on remand of less than thirty-two months and eighteen days was not unreasonable in the circumstances.   They refer in particular to the complexity of the facts and of the investigations, which necessitated the taking of expert evidence.   They contend that there were no undue delays on the part of the German authorities.         The applicant considers that the proceedings until the applicant's conviction could have been terminated after eighteen months as a maximum.   He submits that the case was not complex, and that the relevant results of the investigations were already available in September and October 1988.   The experts could have been appointed simultaneously.   According to the applicant, his refusal to make any statements on the charges against him did not render the investigations more difficult.         The applicant points at several delays in the course of the proceedings, in particular the delay in preparing the first report on the result of the investigations and transmitting it to the Public Prosecutor's Office.   The forensic expert opinion on the circumstances of the offence should have been ordered from the very beginning of the investigations.   Following a first contact with the forensic expert, it took a month until he was appointed as expert in January 1989.   The applicant further submits that the appointments of the psychiatric and the psychological experts were belated.   The Public Prosecutor's Office could have also started to prepare the indictment earlier and thus have it preferred one month earlier.         The Commission notes that the applicant was arrested on 2 April 1988 and detained on remand until 20 December 1990, i.e. approximately two years, eight months and three weeks.         The Commission recalls that it is in the first place for the national authorities to ensure that, in a given case, pre-trial detention of an accused person does not exceed a reasonable time.   To this end, they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the question of release.   It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the applicant in his appeals, that the Convention organs are called upon to review the reasonableness of the length of detention (cf. Eur. Court H.R., Letellier judgment of 26 June 1991, Series A no. 207, p. 18, para. 35; W. v. Switzerland judgment of 26 January 1993, para. 30, to be published in Series A no. 254).         The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer suffices; the Convention organs must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty, and whether the domestic authorities displayed special diligence in the conduct of the proceedings (cf. Eur. Court H.R., Letellier judgment, loc. cit.; W. v. Switzerland judgment, loc. cit.).         The Karlsruhe Court of Appeal, referring to the investigations and evidence against the applicant, found that there was a reasonable suspicion that he had committed the offence in question.   Its finding as to the risk of the applicant absconding was based on the seriousness of the charges against him and the severity of the sentence which he risked as well as his attempt to abscond shortly after his arrest.   The applicant's continued detention was thus based on sufficient and relevant grounds.         As regards the conduct of the proceedings by the domestic authorities, the Commission notes that the preliminary investigations started in April 1988 and the Public Prosecutor's Office preferred the indictment in March 1990.   The applicant was committed for trial in July 1990, and convicted on 20 December 1990.         The Karlsruhe Court of Appeal, in its respective decisions, carefully examined the progress of the criminal proceedings against the applicant and considered the question of proportionality of the applicant's continued detention on remand.   It did state a delay of one month in the handling of the case by the Public Prosecutor's Office, which nevertheless did not render the continued detention on remand disproportionate.   The findings of the Court of Appeal were confirmed by the Federal Constitutional Court in its decisions of 27 June and 18 September 1990.         The Commission considers that especially the period of almost two years for completing the preliminary investigations may at first sight appear excessive.         The Commission recalls that the right of the accused in detention to have his case examined with particular expeditiousness must not hinder the efforts of the prosecution authorities to carry out their tasks with proper care (cf. Eur. Court H.R., Tomasi judgment of 27 August 1992, Series A no. 241-A, p. 39, para. 102; W. v. Switzerland judgment, loc. cit., para. 42).         In the present case, the investigations were of some complexity. Though the applicant was suspected and arrested at the very beginning of the investigations on the case of manslaughter, extensive taking of expert evidence was necessary in order to clarify the circumstances of the offence and the question of the applicant's criminal responsibility.   The applicant himself did not make any statements on the charges against him.   The investigations, in particular regarding the taking of expert evidence, were conducted by the Freiburg Public Prosecutor's Office in cooperation with the applicant's defence counsel, who was also involved in the choice of the medical experts concerned.         It does not appear that the conduct of the investigations by the Freiburg Public Prosecutor's Office was in general unreasonable and gave rise to delays which run counter to the requirements of promptness under Article 5 para. 3 (Art. 5-3).   It is true that the Karlsruhe Court of Appeal, in its decision of 12 January 1990, pointed at a delay of one month in preparing the indictment; the Federal Constitutional Court, in its decision of 27 June 1990, also referred to some possible delays.   However, there is no indication of any periods of inactivity on the part of the prosecution authorities.   Their approach to the investigations cannot be regarded as inefficient and unreasonable, thus, on the whole, as failure to act with the necessary diligence.         In these circumstances, the Commission considers that the period of the applicant's detention on remand did not exceed a reasonable time within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant further complains about his conviction by the Freiburg Regional Court on 20 December 1990 and the proceedings concerned.         However, the Commission is not required to decide whether or not the applicant's submissions in this respect disclose any appearance of a violation of the Convention as the applicant failed to lodge a constitutional complaint with the Federal Constitutional Court as regards his conviction and the court proceedings.   He has not, therefore, as required by Article 26 (Art. 26) of the Convention, exhausted the remedies available to him under German law.         It follows that this part of his application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         Accordingly, the Commission by a majority         DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the First Chamber         President of the First Chamber         (M.F. BUQUICCHIO)                             (A. WEITZEL)