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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 - 3637/68 [1969] ECHR 13 (19 December 1969) URL: http://www.bailii.org/eu/cases/ECHR/1969/3637_68.html Cite as: [1969] ECHR 13

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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 1919 and at present
detained in prison in Karlsruhe.  He is represented by Messrs. R. and
S., two lawyers practising in Karlsruhe and acting under a
power-of-attorney, dated 5th June, 1968.

On 16th September, 1964, the Public Prosecutor's Office was informed
that the applicant had committed certain acts amounting to fraud and
embezzlement in connection with certain housing projects at Baden-Baden
and Karlsruhe.  Consequently, investigations were instituted against
the applicant who was first interrogated by the police on 12th October,
1964.  On 24th February, 1965, the applicant's premises were searched
and files and records seized.  These gave rise to the suspicion that
the applicant was involved in acts of fraud, embezzlement and forgery
on a large scale relating, in particular, to a number firms in
Karlsruhe, Liechtenstein, the Netherlands, Belgium and Switzerland with
which the applicant was connected in one way or another.

Investigations were continued throughout 1965 and 1966.  They
concentrated on eight groups of activities which, according to the
prosecuting authorities, amounted to criminal offenses.  Three of these
cases are the subject of investigations by the Public Prosecutor's
Office at Karlsruhe;  one case has been transferred to the prosecuting
authorities in Munich, another is the subject of proceedings which have
been pending before the Regional Court (Landgericht) in Frankfurt/Main;
proceedings under two further cases have been discontinued at Karlsruhe
and in one case the applicant has been convicted and sentenced to three
months' imprisonment by final decision of the Court of Appeal
(Oberlandesgericht) at Karlsruhe, dated 17th July, 1968.

The applicant's complaints before the Commission relate to the
proceedings which are still pending before the Regional Court
(Landgericht) at Karlsruhe.  The development of these proceedings was
as follows:

On the basis of the evidence collected against the applicant, the
Public Prosecutor's Office (Staatsanwaltschaft) at Karlsruhe made an
application to the Karlsruhe District Court (Amtsgericht) for the
applicant's arrest.  A warrant of arrest (Haftbefehl) was issued by the
said Court on 12th July, 1966.  The Court found that there was
sufficient suspicion that the applicant had committed breach of trust
vis-à-vis various persons, in that, having undertaken through the firms
A.B.C., Vaduz, to provide houses and owner flats, he spent the proceeds
from the sales for purposes other than those agreed upon in the
contracts.  The Court further found that the applicant had defrauded
various other persons by inducing such persons or companies to insure
themselves against certain risks with the S.A. D..  For this purpose,
the applicant promised them loans from third persons, although he knew
that he was not in a position to procure such loans. The Court
considered that there existed a danger of the applicant's absconding,
in view of the severe penalty which he had to expect, and his
connections abroad.

On 14th July, 1966, further papers and records were seized at the
applicant's offices and on the same day he was arrested at his home in
Karlsruhe.

However, on 19th July, 1966, the said District Court examined the
lawfulness of the applicant's detention (Haftprüfung) and decided that
the execution of the warrant of arrest should be suspended on condition
that he should report to police headquarters at Karlsruhe once a day,
that he should deposit his passport and identity card with the
authorities, subject to their being returned to him with the approval
of the competent judge only and that, finally, he should inform the
Public Prosecutor's Office at Karlsruhe of any change of address. On
the same day, the applicant was released from detention.

The Office of the Public Prosecutor at Karlsruhe lodged with the
Regional Court of Karlsruhe an appeal (Beschwerde) against this
decision. On 27th July, 1966, the Regional Court set aside the District
Court's decision of 19th July, 1966 and decided that the execution of
the warrant of arrest should be resumed.

The Court held that there existed a considerable danger of the
applicant's absconding (Fluchtgefahr). It pointed out that in view of
the strong suspicion against him and his previous convictions for
similar offenses, the applicant was faced with a severe sentence. It
was true, the Court continued, that the applicant was married, that his
private and family life were normal and his domestic circumstances in
good order. The Court also took into consideration the fact that, for
some time prior to his arrest, the applicant knew about the proceedings
against him and that he had not made an attempt to abscond after his
release from detention. The Court considered that, nevertheless, the
danger of his absconding had increased as the evidence against him
became stronger. It pointed out that his numerous international
connections and the likelihood of his having funds abroad would
facilitate an escape even without proper identification papers.

On 27th July, 1966, the District Court at Karlsruhe also extended the
warrant of arrest of 12th July, 1966, to cover another count of fraud
which had been lodged in the meanwhile. The applicant was re-arrested
on 28th July, 1966, and remanded in custody.

On 5th August, 1966, the applicant's lawyers made an application to the
Regional Court in Karlsruhe requesting that the execution of the above
warrant of arrest should be suspended and the applicant released on
bail (Sicherheitsleistung) in the amount of DM 50,000. Subsequently,
on 10th August, 1966 he lodged with the Court of Appeal at Karlsruhe,
a further appeal (weitere Beschwerde) against the decision of 27th
July, 1966, and a decision of 5th August, 1966, by which the Regional
Court had, inter alia, refused the applicant's appeal against the
warrant of arrest. At the same time, he once more offered security in
the amount of DM 50,000.

On 22nd August, 1966, the Court of Appeal at Karlsruhe confirmed the
above Regional Court's decision of 27th July, 1966 for the reasons
stated in that decision. The Court of Appeal also found that there was
the danger of the applicant' suppressing evidence (Verdunkelungsgefahr)
resulting from the fact that he had managed to hide his transactions
by the use of agents and nominees. In case of his release, he was
likely to exert a certain influence on these persons in order to make
more difficult the proper investigation of his transactions. The Court
of Appeal finally stated that, in view of these considerations, it was
not possible to suspend the execution of the warrant of arrest in spite
of the fact that the applicant had offered bail (Sicherheitsleistung)
in the amount of DM 50,000.

On 30th December, 1966, the District Court at Karlsruhe again examined
the lawfulness of the applicant's detention on remand. The Court
referred to the reasons previously stated and concluded that the danger
of his absconding and of suppressing evidence continued. The Court
further stated that in view of the fact that danger of flight existed
to a very high degree, it was not possible to release the applicant
even on bail of DM 100,000 - which, in the meanwhile, had been offered
by his lawyers. The applicant's appeal (Beschwerde) against that
decision was refused by the Regional Court at Karlsruhe on 13th
January, 1967. The Court held that no new circumstances had become
apparent since its last decision on this subject, except that the
applicant now offered bail in the amount of DM 100,000. However, the
Court considered it impossible to accept that offer. Having regard to
the considerable sums which the applicant had probably obtained by
means of his criminal activities, it was to be expected that he would
forfeit even DM 100,000 in order to avoid prosecution. The Court
further held that the danger of his suppressing evidence continued.

On 8th February, 1967, the Karlsruhe Court of Appeal took a decision
under Articles 121, 122 of the Code of Criminal Procedure
(Strafprozessordnung) to the effect that the applicant's detention on
remand should continue. The Court decided that the danger of his
absconding continued to exist and that this danger had not been
eliminated by his offer of bail in the amount of DM 100,000. In view
of this situation, it was not necessary to decide whether or not, owing
to the progress of the investigations, there was still a danger of the
applicant suppressing evidence. The Court further stated that in view
of the exceptionally high number of offenses with which the applicant
was charged and the resultant difficulties as to their investigation,
it had not yet been possible to terminate the preliminary proceedings.
Nevertheless, the Court expressed the expectation that the
investigations should now be expedited to the extent that the
prosecution authorities would come to a final decision with regard to
at least one of the charges against the applicant.

On 2nd May, 1967, the applicant was informed by the Karlsruhe Public
Prosecutor's Office that the investigations were closed with regard to
two construction cases and 27 insurance cases and that it was intended
to file the indictment with regard to these charges. Furthermore, the
proceedings with regard to all the other cases against him, as well as
against other accused persons, were separated from these proceedings.

Subsequently, on 3rd May, 1967, the District Court at Karlsruhe took
a decision to the effect that the warrant of arrest should be set aside
as far as it concerned those offenses with regard to which the
investigation proceedings had been closed, but upheld as to the
remainder. This decision was confirmed on 19th May, 1967 by the
Karlsruhe
Court of Appeal. The Court referred to its previous decisions and held
that the danger of his absconding had increased owing to the fact that
the applicant was suspected of having committed further offenses of
fraud with regard to the insurance scheme developed by him. Moreover,
there was also now a warrant of arrest issued by the District Court in
Frankfurt in connection with numerous offenses of fraud which the
applicant was accused of having committed there.

On 14th August, 1967, the District Court in Karlsruhe took a further
decision amending the warrant of arrest of 12th July, 1966, to include
further offenses of breach of trust in connection with the construction
cases and of fraud in connection with the insurance cases. The Court
stated that danger of flight and of suppressing evidence continued and
referred to the decision of the Karlsruhe Court of Appeal of 22nd
August, 1966. The applicant appealed against that decision, but
requested that a decision on his appeal should be adjourned until the
Court of Appeal had decided as to the lawfulness of his continued
detention on remand under Articles 121, 122 of the Code of Criminal
Procedure.

In the meanwhile, on 2nd June, 1967, the applicant had been accorded
a final hearing (Schlussgehör) by the Karlsruhe Public Prosecutor's
Office. During the hearing he made an application for an adjournment
by one month so as to prepare his case by means of his records and
papers. That application was granted on the same day.

The applicant, having also applied for a judicial examination, was
heard by the competent investigating judge, Mr. W., from 30th June to
2nd August, 1967. On 3rd August, 1967, he applied for an adjournment
on the ground that he had not had sufficient opportunity to examine
together with his counsel his correspondence which had been seized at
his offices. The District Court at Karlsruhe dismissed that
application, but this decision was set aside, on appeal, by the
Karlsruhe Regional Court on 7th August, 1967. On the basis of this
decision, the judicial examination was adjourned until 25th September,
1967.

On 11th September, 1967, the Court of Appeal at Karlsruhe decided that
the applicant's detention on remand should continue. The Court first
confirmed that the applicant was strongly suspected of having committed
the offenses with regard to which the investigations were conducted.
The Court continued that, in view of the danger of his absconding which
persisted to a considerable degree, it was not possible to release the
applicant. The question as to whether or not, after the investigations
have been closed, there still was a danger of his suppressing evidence
could remain open. The Court finally examined the question whether or
not it was still justified, under Article 121 of the Code of Criminal
Procedure to keep the applicant in detention on remand, in view of the
fact that he had already been in custody for 13 months. The Court
pointed out that the investigations had been closed since 2nd May,
1967, but that the indictment had not yet been filed owing to the fact
that the applicant had asked for a judicial examination with regard to
all the accusations against him prior to a final hearing by the
prosecuting authority. This request had been granted and the judicial
examination was still going on. Nevertheless, the Public Prosecutor's
Office and the District Court should see to it that the investigations
be terminated and the indictment filed as, in the case of any further
avoidable delay, it would no longer be justified to keep the applicant
in custody.

The judicial examination of the charges against the applicant was
continued on 25th September, 1967. On that day, the applicant requested
a further adjournment of the hearing which was granted and a new date
was fixed for 10th October, 1967. However, when the Public Prosecutor's
Office protested against that date, the District Court at Karlsruhe
decided, on 28th September, 1967, that the examination should continue
on 3rd October, 1967. The applicant's appeal against that decision was
rejected on 4th October, 1967 as being ill-founded. Similarly, his
challenge of Judge W. for bias, which he had made on 3rd October, 1967
after having refused to make any statements on that day pending a
decision on his appeal, had been rejected.

A new date to continue the judicial examination was fixed for 6th
October, 1967. On that day, the applicant again challenged Judge W.,
but his challenge was immediately declared inadmissible.

The examination continued until 16th October, 1967. On 17th October,
1967 the applicant again challenged Judge W. for bias, an allegation
which the President of the District Court rejected on 20th October,
1967, as being ill-founded. The Regional Court at Karlsruhe, on 26th
October, 1967, dismissed the applicant's appeal (Beschwerde) against
that decision.

The examination continued on 30th October, 1967. On that day, the
applicant once more challenged Judge W. on the ground that he had
failed to protect the applicant against certain personal remarks made
by the Public Prosecutor during the hearing. The applicant furthermore
requested that Judge W. should be instructed to put on record certain
names and facts relating to various insurance companies which the
applicant intended to dictate. Judge W. had refused to allow any
further dictation during the hearing on the ground that these facts
should be submitted by the applicant in writing. Both the challenge and
the request to put on record came before the Regional Court at
Karlsruhe which decided on 31st October, 1967, that they were
ill-founded. The Court considered that the repeated challenge of Judge
W. was calculated to protract the proceedings and that there was no
legal provision requiring the recording of facts, as requested.

The examination was to be continued on 2nd November, 1967. The
applicant now declared that he was unable to make any final statement
before he had an opportunity to examine, together with his counsel, the
various bank statements which had been put in evidence against him.

Subsequently, at a hearing on 6th November, 1967, the applicant applied
for an adjournment of the judicial examination. He stated that he would
not make any final statement before he had examined all the documents
and letters connected with his case. He also requested from the Court
photocopies of the entire material collected from the banks, such
photocopies to be made at the expense of the Court. On 7th November,
1967 the District Court refused the above applications and this
decision was confirmed by the Karlsruhe Regional Court on 15th
November, 1967.

The judicial examination was resumed once again and terminated on 6th
December, 1967. The applicant was informed that it was not intended to
submit the indictment, in accordance with the Public Prosecutor's
letter of 2nd May, 1967, with regard to all cases concerning the
construction schemes and the insurance schemes, except one (the E.
Case). With regard to that case, further investigations had proved to
be necessary. The applicant was also advised that he could again apply
for a final hearing (Schlussgehör) by the Public Prosecutor's Office,
or for the taking of evidence, or submit objections against the
intention to file the indictment.

On 6th December, 1967, the Karlsruhe District Court also took a
decision separating the E. Case from the remainder of the charges
against the applicant and amending the warrant of arrest accordingly.

On 5th January, 1968, the Court of Appeal at Karlsruhe took a further
decision under Articles 121, 122 of the Code of Criminal Procedure
confirming the applicant's continued detention on remand. The Court
referred to the grounds of its decisions of 22nd August, 1966 and 11th
September, 1967, adding that only a heart attack suffered in 1963 was
not calculated to eliminate the danger of flight. The Court further
stated that the applicant's detention on remand over and above the
period provided for in Article 121 of the Code of Criminal Procedure,
namely six months, continued to be justified owing to the applicant's
applications for a judicial examination, for adjournments, challenge
of judges and appeals in other matters. It was not necessary to
determine whether or not these applications were made to protract the
proceedings. Continued detention on remand was justified if the
proceedings have been prolonged simply by the fact that the applicant
had availed himself of all remedies which were at his disposal.
Furthermore, no fault on the part of the Public Prosecutor or the
District Judge concerned had been established and it could be expected
that the indictment would now soon be filed.

The applicant, having applied for a final hearing, was heard on 19th
January, 1968. On 15th March, 1968, the indictment was filed with the
Karlsruhe Regional Court. The applicant was charged with having
committed breach of trust and embezzlement in respect of one
construction case, and fraud in respect of another such case, as well
as in respect of the making of insurance contracts in 31 cases.
According to the indictment, the latter charges also constituted an
offence under Article 240, paragraph (1), of the Act relating to the
Supervision of Insurance Companies (Versicherungsaufsichtsgesetz). The
Public Prosecutor's Office also made an application that the applicant
should be convicted as being a dangerous habitual criminal and
committed to preventive detention (Sicherungsverwahrung), subsequent
to serving his sentence.

On 29th March, 1968, the Karlsruhe Regional Court once more extended
the warrant of arrest to cover five further cases of insurance fraud
which had already been included in the indictment. Subsequently, on
19th April, 1968, the Court of Appeal at Karlsruhe took a further
decision under Articles 121, 122 of the Code of Criminal Procedure
confirming the applicant's continued detention on remand. The Court
considered that the danger of his absconding continued to exist, the
more so as, in the meanwhile, the indictment had been submitted in the
Frankfurt proceedings and, moreover, in the present proceedings, the
prosecuting authorities had moved to convict the applicant as being an
habitual criminal and to commit him to preventive detention. Finally,
the continued detention was justified in view of the complexity of the
case and the extent of the investigations which had largely been the
result of the applicant's own conduct and could not be imputed to any
slowness on the part of the authorities.

In the meanwhile, on 1st February, 1968, the applicant had lodged with
the Federal Constitutional Court (Bundesverfassungsgericht) a
constitutional appeal (Verfassungsbeschwerde) against the decision of
the Court of Appeal on 5th January, 1968 invoking Articles 2 and 104
of the Basic Law (Grundgesetz) and Article 5, paragraph (3), of the
European Convention on Human Rights. Subsequently, the applicant also
appealed against the Karlsruhe Court of Appeal's decision of 19th
April, 1968. On 16th May, 1968, three judges of the Federal
Constitutional Court rejected the appeals as being inadmissible insofar
as Article 5 of the Convention  was concerned and as being clearly
ill-founded with regard to the remainder. The Court held that the
applicant's constitutional rights had not been violated by the
decisions concerned, nor was the length of his detention on remand due
to any delay which could have been avoided. The Court stated that,
insofar as the delay was caused by the fact that the applicant had
availed himself of his procedural rights, it could not be held against
the prosecuting authorities.

On 18th June, 1968, the Public Prosecutor's Office at Karlsruhe filed
with the Karlsruhe Regional Court a further indictment concerning
another case of fraud which the applicant was alleged to have committed
in connection with the building scheme. Again the Public Prosecutor
moved that the applicant should be convicted as being a dangerous
habitual criminal.

The question of the applicant's continued detention on remand came
again before the Court of Appeal at Karlsruhe on 5th August, 1968. On
that day, his detention was confirmed on the grounds previously stated.
The Court also pointed out that, in the Frankfurt proceedings, the
applicant had, in the meanwhile, been committed for trial which was to
start in February, 1969.

On 20th August, 1968, the applicant began serving a three months'
sentence to which he had been convicted by the Karlsruhe Court of
Appeal's final decision of 17th July, 1968. Subsequently, on 20th
November, 1968, the applicant served until 11th February, 1969, the
balance of a prison sentence that had been suspended during a
probationary period. It is not clear whether or not, after that date,
the applicant was again remanded in custody.

In any event, on 5th November, 1968, the Regional Court at Karlsruhe
had decided that the applicant should be committed for trial in respect
of the charges set forth in the indictments of 15th March and 18th
June, 1968. However, the proceedings should be discontinued insofar as
the prosecuting authorities had charged the applicant with having
committed an offence contrary to Article 240, paragraph (1), of the Act
concerning the Supervision of Insurance Companies. The Court further
decided that detention on remand should continue for the reasons set
out in the warrant of arrest.

On 20th December, 1968, the Karlsruhe Public Prosecutor's Office
submitted to the Regional Court the indictment concerning the E. case
which had been separated earlier from the remainder of the cases and
with regard to which the investigations had now been completed. In this
case, the applicant was again charged with having committed an
insurance fraud.

Subsequently, on 24th January, 1969, the Regional Court at Karlsruhe
decided that the warrant of arrest should be extended to cover the E.
case. On 24th January, 1969, the same Court also took a further
decision committing the applicant for trial as regards the offence set
forth in the indictment of 20th December, 1968.

On 1st August, 1969, the applicant was convicted by the Regional Court
at Karlsruhe for having committed breach of trust in three cases and
fraud in 26 cases. He was sentenced to seven years' penal servitude as
well as 29 fines of DM 100 each. The Court further decided that, during
a period of five years, the applicant should abstain from any activity
as real estate, financial or insurance agent, and that the period which
he spent in detention on remand should be credited towards his
sentence.

The applicant appealed (Revision) against that decision to the Federal
Court.

B. Whereas the proceedings before the Commission may be summarised as
follows:

The application was lodged on 6th June, 1968, and registered on 10th
June, 1968 in the special register of the Commission's Secretariat
under file No. 3637/68.

On 12th July, 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 15th July, 1968, decided that the application should
have priority (Rule 38, paragraph 1). On the same day, he also made an
order under Rule 45, paragraph 2, 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 19th September, 1968, and from the
applicant in reply on 2nd October, 1968. The respondent Government
submitted supplementary information on 9th December, 1968, 24th March,
1969 and 2nd September, 1969, as to the state of the proceedings
against the applicant.

C. Whereas in his application form and in his relevant written
submissions, the applicant alleges that his detention pending trial for
over two years constitutes a clear violation of Article 5, paragraph
(3), of the Convention;  whereas he seems further to allege that he was
denied a fair hearing during the proceedings relating to his detention
on remand;

Whereas the respondent Government, in its above written observations,
submits that the application is inadmissible, which is contested by the
applicant in his observations in reply:

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.

The Government pointed out that the offenses with which the applicant
was charged were very complex and the investigations difficult. The
subject matter was very complicated and proof could mostly be obtained
by documentary evidence only. Consequently, numerous records and files
had been seized at the applicant's home and at his business
establishments. On 15th August, 1968, the material submitted to the
Court comprised 31 volumes with altogether 7,652 pages in addition to
a further 3,770 pages of documents and 33 files containing 4,928 pages.
These records contained the statements of 145 witnesses, 20 of whom had
been heard abroad. To obtain this evidence, eight requests for rogatory
commission had been made to courts and prosecuting authorities in three
European countries, and 19 similar requests to eight other countries
with the assistance of Interpol. In the course of the investigations,
a further 101 persons had been heard who, however, could not give any
pertinent evidence. A further 196 files containing business
transactions were examined and then returned to the applicant.
Furthermore, it had been difficult to reconstruct the transactions
which allegedly amounted to criminal offenses since there had not been
a proper filing system and there had not been any accounts or regular
commercial bookkeeping.

Moreover, it had been difficult to obtain the necessary information
from the injured parties. According to the respondent Government, the
applicant had used monies which he had obtained through further
fraudulent manipulations in order to repair some of the financial
damage inflicted by him. Consequently, many of the injured parties,
whose losses had been fairly recovered, and those who hoped to recover
at least part of their losses, had not been interested in an effective
criminal prosecution and had refused to give any pertinent information.
Similarly, those persons who were dependent on the applicant or
involved in any way in his manipulations had not been interested in a
clarification of the case.

The respondent Government furthermore pointed out that, apart from the
interrogations and hearings of persons who had suffered financial loss,
the essential investigations to clear up the background of the firms
and the network of the insurance connections had to be made abroad. For
that purpose, as has been pointed out in connection with various
rogatory commissions, it had been necessary to obtain assistance from
foreign judicial authorities , who had been requested to take
depositions of the evidence collected abroad. However, it had not been
possible to make the necessary arrangements before all the material had
been sorted out and evaluated and before the hearing of witnesses in
the Federal Republic of Germany had progressed far enough so that
suitable and precise questions could be put to witnesses abroad.
Subsequently, it had taken between two and four months before the
depositions taken abroad were received by the competent German
authorities.

The investigations were further prolonged by reason of the fact that
the applicant submitted numerous hierarchical appeals against the
Public Prosecutor dealing with his case and, on various occasions,
challenged the judges who took decisions with regard to his case. In
most of these cases, the applicant pursued all remedies available to
him under German law. Moreover, efforts on the part of the prosecuting
authorities to confine the proceedings to a small number of cases and
to concentrate the investigations on the most essential points had been
opposed by the applicant who had consistently declared that "everything
belonged together and was interlaced".

Finally, the respondent Government submitted that it had not been
possible to ensure the applicant's appearance in court to stand trial
in any other way, but by keeping him in custody. Furthermore, it was
considered that the applicant would suppress evidence by bringing his
influence to bear upon those persons who had suffered financial damage
and those who had, in one way or another, worked with him. In this
respect, the Government referred to the reasons given by the German
courts in the decisions by which they had examined ex officio, or upon
the applicant's applications, the lawfulness of his continued detention
on remand.

2. The applicant, represented by his lawyer, Mr. R., submitted his
observations in reply on 2nd October, 1968.

He alleged, first, that the Karlsruhe Regional Court made an offer on
27th July, 1966, for his re-arrest and detention on remand pursuant to
the Public Prosecutor's appeal against the decision for his release,
dated 19th July, 1966, without having previously communicated to him
the grounds of the prosecuting authority's appeal or having heard him
or his lawyers. This, he considered, was improper procedure and a
denial of fair hearing.

The applicant then submitted that the period of his detention on remand
was unreasonable within the meaning of Article 5, paragraph 3, of the
Convention. He contended, in particular, that his own conduct did not
cause any delay of the proceedings concerned.

The applicant stated that the decisions as to the seizure of his files
and records relating to the building projects were taken on 23rd
December, 1964, but that these decisions were not executed until two
months later, on 24th February, 1965. Having been in possession of all
the necessary documents since that time, it should have been possible
for the prosecuting authorities to close the investigations as regards
the building projects even before 14th July, 1966, the date of his
first arrest.

In particular, it would have been possible to complete the
investigations within a period of two years at the most, if they had
been conducted according to a clear preconceived plan and if economic
experts had been called in promptly. This was shown by the Frankfurt
proceedings which had similar international ramifications and in which
the applicant had been brought to trial much earlier than in the
present proceedings only owing to the fact that an economic expert had
been consulted at an early stage.

The applicant also submitted that the proceedings would have been
expedited if the prosecuting authorities had not consistently caused
difficulties as regards his or his lawyer's requests for an examination
of the case files. On several occasions, permission for such
examination was only granted after he had made appeals to the superior
authority or the courts, and the files were submitted to him a very
short time before his interrogation only. Consequently, he had not been
able to make a statement for failure of having before him complete
factors.

Moreover, as early as 23rd June, 1965, he had requested an examination
by a judge, but without success. It was not until the final hearing on
2nd June, 1967, that his request for a judicial examination was
granted.

Furthermore, the applicant contended that, since his challenges of the
investigating judge and his hierarchical appeals against the Public
Prosecutor concerned were justified in the circumstances, they could
not be held against him. The decisions in these matters had nothing to
do with the investigations of his case;  they were taken by different
courts and the proceedings concerned could not have interfered with the
investigations which were conducted by the police and the Public
Prosecutor's Office. Instead, the appeals and applications made by him
were calculated to expedite proceedings.

Nor should it be held against him that he availed himself of the
remedies that were at his disposal. Apart from the fact that it was
untrue that the proceedings were to a considerable extent prolonged
because the applicant availed himself of such remedies, this conception
was inconsistent with constitutional thinking. It would lead to the
untenable conclusion that a person who avails himself of his rights
under the law of criminal procedure must spend a longer period in
detention on remand than a person who does not take advantage of these
procedural possibilities.

The applicant finally submitted that, having regard to his age, his
heart condition, his close relations with his family and, in
particular, his legal convictions, there never was any danger, either
of his suppressing evidence or of absconding. He never intended to
abscond, although he knew about the investigations right from the start
owing to the seizure of documents. Nor did he, in fact, abscond when
the District Court release him and suspended the execution of the
warrant of arrest without any security having to be furnished.
Nevertheless, bail had been offered by him on several occasions first
in the amount of DM 50,000 - later the amount of DM 100,000. Each time,
however, his release on bail had been refused by the courts.

The applicant submitted that, for the above reasons, his application
should be declared admissible.

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), subparagraph (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 appear for
trial";

Whereas it is not disputed that the applicant was arrested on 14th
July, 1966 on suspicion of having committed various offenses of fraud,
embezzlement, and breach of trust; that he was released against certain
guarantees on 19th July, 1966 but re-arrested on 28th July, 1966; that
he remained in custody until 20th August, 1968; that from that date
onwards until 11th February, 1969, he served prison sentences in
execution of previous convictions; that on 1st August, 1969, he was
convicted and sentenced at first instance by the Regional Court of
Karlsruhe;

Whereas the applicant alleges that his detention pending trial for over
two years constitutes a clear violation of Article 5, paragraph (3)
(Art. 5-3) of the Convention;

Whereas the respondent Government submits that the investigations in
the applicant's case concerned a particularly high number of offenses;
that the cases were 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 other way than by 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) of the Convention, the Commission
must first decide what period of detention is under consideration;

Whereas the Commission considered that question in the light of the
judgments of the European Court of Human Rights in the "Wemhoff" and
"Neumeister" Cases (cf. Eur. Court H.R. "Wemhoff" and "Neumeister"
Cases, judgments of 27th June, 1968); whereas, having regard to those
judgments, the first period under consideration in the present case
lasted from 14th July, 1966, being the date of the applicant's arrest,
until 19th July, 1966, being the date of his release, and the second
period from 28th July, 1966, being the date of his re-arrest, until
20th August, 1968, being the date on which the applicant was imprisoned
in execution of his previous convictions; whereas his imprisonment
ended on 11th February, 1969, and it may be assumed that subsequently
he was again remanded in custody; whereas in 1st August, 1969, the
applicant was convicted and sentenced at first instance; whereas the
Commission finds that the period of detention on remand within the
meaning of Article 5, paragraph (3) (Art. 5-3) of the Convention,
which, in accordance with the point of view adopted by the European
Court of Human Rights in its above judgment, ends with the applicant's
conviction at first instance, terminated in his case on 1st August,
1969;

Whereas it follows that, in the present case, the applicant was
detained on remand during three separate periods of altogether two
years, six months and seventeen 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 the provisions of Article 5,
paragraph (3) (Art. 5-3) of the Convention, 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. (cf. Eur.
Court H.R., "Wemhoff" Case, para 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 Eur. Court H.R.
"Wemhoff" Case, para. 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 July, 1968, as
well as to the Court's judgment in the "Stögmüller" and "Matznetter"
Cases of 10th November, 1969, 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 was 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 warrants of arrest were
consistently based on the ground that the applicant would abscond if
he were left at liberty and that he would suppress evidence; whereas
these reasons 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 German courts found that the applicant, who was charged
with having committed economic offenses on a wide scale and on an
international level, had numerous business connections abroad which he
might use to abscond in order to avoid prosecution; that, for the same
reason, he was likely to have considerable funds abroad; that the
applicant was fully aware of the evidence became stronger; that the
applicant, being a recidivist, was faced with a severe sentence if he
were to be convicted on the charges made against him; that the
prosecuting authorities furthermore had submitted to the Court that the
applicant, subsequent to having served his sentence, should be
committed to preventive detention on the ground that he was an habitual
criminal; that, moreover, the applicant, if he were set free, was
likely to use his influence on various witnesses in an attempt to
persuade them that they should not give evidence against him;

Whereas the German courts considered that, for these reasons, it was
not possible to release the applicant from detention on remand, even
against certain financial or other guarantees, and at the same time
ensure his appearance for trial; whereas, in reaching this conclusion,
the courts had due regard to the applicant's age and health, his family
ties and domestic circumstances, as well as to his offers of bail,
first in the amount of DM 50,000 and later DM 100,000;

Whereas the Commission has itself examined the grounds on which the
applicant was detained on remand during the above period;

Whereas it notes that present day border controls are calculated to
facilitate international travel and are not, therefore, always
stringently enforced, making it possible to cross borders even without
proper identification papers; whereas, consequently, there are few
technical obstacles which would have prevented the applicant from
leaving the Federal Republic of Germany;

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 applicant was
fully aware of the state of the investigation and knew that there was
considerable evidence against him, thereby making his conviction,
including possibly his subsequent committal to preventive detention,
more and more probable;

Whereas it is true that the possibility of a severe sentence, while
constituting a factor which might encourage an accused person to
abscond, is not by itself sufficient to lead to the assumption of a
danger of flight; whereas this reasoning has already been adopted by
the European Court of Human Rights in the Wemhoff Case (Judgment, para.
14 of The Law); whereas, however, as in the Wemhoff Case, the German
courts have been careful in the present case as well to support their
affirmations that a danger of flight existed by referring at an early
stage in the proceedings to certain circumstances relating to the
material position of the accused;

Whereas the Commission has also considered the offers of bail made by
the applicant; whereas again the Commission had regard to the judgment
of the European Court of Human Rights in the Wemhoff Case;

Whereas the Court emphasised that the concluding words of Article 5,
paragraph (3) (Art. 5-3) of the Convention show that, when the only
remaining reason for continued detention is the fear that the accused
will abscond and thereby avoid appearing for trial, his release pending
trial must be ordered if it is possible to obtain from him guarantees
that will ensure such appearance;

Whereas the Commission notes that, in the present case, the applicant
between August 1966 and May 1967 repeatedly offered guarantees to
ensure his appearing for trial, first in the amount of DM 50,000 and
later DM 100,000; whereas these offers were refused by the German
courts on the ground that they were insufficient in the circumstances
to ensure such appearance and, moreover, that the danger of the
applicant's suppressing evidence continued; whereas, consequently, the
fear that the applicant would abscond was, between August 1966 and May
1967 not the only reason for his continued detention; whereas it is
true that, subsequently, the German courts held that the danger of his
suppressing evidence had possibly disappeared in view of the fact that
the investigations had been closed; whereas, however, at that stage the
applicant had no longer offered any guarantees to ensure his appearing
for trial, but was seeking release on other grounds;

Whereas, for these reasons, the Commission finds that the grounds
relied on by the German courts refusing the applicant's release pending
trial were relevant and sufficient;

Whereas, on the other hand, as has been stated above, the danger of
absconding or of suppressing evidence, however justified such danger
might 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
that the offenses with which the applicant was charged were economic
offenses which involved numerous persons; that it had been necessary,
in the insurance fraud cases, to examine the interrelationship and the
holdings of various firms in the Federal Republic and abroad, which the
applicant had allegedly created in order to camouflage his
transactions; that it had been difficult to obtain the evidence of
witnesses and that, consequently, the prosecuting authorities had been
required to reconstruct the transactions concerned, mostly by
documentary evidence; that such material was very voluminous and
allegedly badly organised; that, in addition thereto, the prosecuting
authorities had examined approximately 245 witnesses, whose evidence
had in part been taken by rogatory commissions in altogether twelve
countries;

Whereas the Commission further noted that, in spite of these
difficulties, the investigations had been closed on 2nd May, 1967, i.e.
only about ten months after the applicant had been arrested and
remanded in custody;

Whereas it is true that, subsequently, the investigations were
continued until 6th December, 1967 in the form of judicial
investigations; whereas, however, the reopening of the investigations
had been the result of applications made by the applicant in the
exercise of his rights under the German Code of Criminal Procedure;
whereas, during the judicial investigations, the applicant on various
occasions challenged the investigating judge dealing with his case and
lodged disciplinary complaints against the Public Prosecutor concerned;
whereas, the Commission finds that, regardless of the question whether
or not an accused person is, in principle, entitled to avail himself
of all possibilities that are at his disposal under the applicable
procedural law to prevent him from being committed for trial, he must
bear the consequences as to any resultant prolongation of the
investigation;

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 complicated
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 the applicant's further arguments to the effect that Article
5, paragraph (3) (Art. 5-3) of the Convention has been violated in his
case, are not, in the circumstances, calculated to lead the Commission
to any other conclusion in the present case; whereas, in particular,
the Commission is called upon only to examine the length of the
applicant's detention on remand under that provision, and any argument
relating to the length of the proceedings themselves, or to the
arguments that his arrest and detention as such were unlawful, or that
the investigations should have been terminated prior to his arrest are
not relevant in this case;

Whereas, in the circumstances, the Commission sees no ground for
examining ex officio the application under the relevant provisions of
the Convention, namely Article 5, paragraph (1) (c) or Article 6,
paragraphs (1) and (3) (Art. 5-1-c, 6-1, 6-3);

Whereas, therefore, the Commission finds that an examination of the
case as it has been submitted does not disclose any appearance of a
violation of the rights and freedoms set forth in the Convention and,
in particular, in Article 5, paragraph (3) (Art. 5-3) 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 it appears that the applicant furthermore wishes to complain
of the proceedings relating to the examination by the German courts of
the lawfulness of his detention on remand; whereas he alleges, in
particular, that on 27th July, 1966, the Karlsruhe Regional Court made
an order for his re-arrest and detention on remand without having
previously communicated to him the grounds submitted in support of that
order by the prosecuting authorities or having heard him and his
lawyers;

Whereas, here again, the Commission had regard to the jurisprudence of
the European Court of Human Rights; whereas, in the "Neumeister" Case
(cf. Eur. Court H.R., "Neumeister" Case, Judgment of 27th July, 1968),
the European Court held that the principle of "equality of arms" which
is included in the notion of fair hearing under Article 6, paragraph
(1) (Art. 6-1), of the Convention, was not applicable to the
examination of requests for provisional release, since such examination
does not relate to the "determination of any criminal charge" as
required under that provision; whereas the Court further held that it
was also not possible to justify the application of the principle of
"equality of arms" to proceedings concerning detention on remand by
invoking Article 5, paragraph (4) (Art. 5-4) of the Convention, which
while requiring that such proceedings shall be allowed, stipulates that
they should be taken before a "court", but in no way relates to the
procedure to be followed; whereas the court considered that full
written proceedings or an oral hearing of the parties in the
examination of such remedies would be a source of delay which it was
important to avoid in this field;

Whereas the Commission has followed the holding of the European Court
in its decision of 18th July, 1968, on the admissibility of Application
No. 2614/65 (Collection of Decisions, Vol. 27, pages 29, 59);

Whereas it finds no reason to find otherwise in the present case;

Whereas, consequently, this part of the application, even assuming that
the said complaint was properly brought before the Commission and
within the time-limit provided for in Article 26 (Art. 26) of the
Convention, does equally not disclose any appearance of a violation of
the rights and freedoms set forth in the Convention, and in particular,
in Articles 5, paragraph (4), and 6, paragraph (1) (Art. 5-4, 6-1);

Whereas it follows that in this respect the application is also
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