هيثم الفقى
07-14-2009, 12:48 AM
X. v. THE FEDERAL REPUBLIC OF GERMANY - 920/60 [1961] ECHR 6 (19 December 1961)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a German citizen, born in ... and now living in A.On ... he was arrested at A. on a charge of having participated as anSS-Obersturmführer in mass executions of Jews at B. (Soviet Union) in1942- 43. He was later released but re-arrested on ... 1960. TheApplicant does not deny that he took part in the exterminationprogramme carried out by the SS, but alleges that he did so undercompulsion. He states that he was always been against the persecutionof Jews because to him "the dignity of man is sacred" but, that onprotesting to his superiors, he was informed that if he refused toparticipate he would be executed himself; subsequently he had no longeracted of his own free will but was a mere "tool" of his superiorofficers. The Applicant invokes Article 47 of the Military Codeaccording to which a subordinate soldier cannot be made liable for actsperformed in the course of following orders. Finally, he claims thatthe charges against him are, in any event, barred by time.The Applicant appealed against his arrest but this appeal was rejectedon ... 1960. On ... 1960 he requested an immediate oral hearing of hiscase and, this request having also been refused, he petitioned on ...and ... 1960 to the Public Prosecutor for his release pending trial.These petitions were refused on ... and ... 1960 respectively. Asimilar request made on ... 1960 was rejected by the District Court(Amtsgericht) of C. on ... 1960.On ... 1960 the Applicant renewed his request for an immediate trial,but this was rejected by the District Court of C. on ... 1960. Hesubsequently appealed to the Regional Court (Landgericht) of C. whichon ... 1960 upheld the decision of the lower court. The Court stressedthat "blind obedience does not protect a person from answering tocrimes", that it was to be feared that the Applicant might flee tocountries which usually did not extradite war criminals, that thethreat to the Applicant's own life had not been invoked by him at hisfirst arrest and that similar arguments had not been advanced by anyof the persons charged with him. This decision was upheld by theRegional Court of Appeal (Oberlandesgericht) of C. on ... 1960. On ...1960 the Applicant had petitioned the Parliament of (the Land of D.)for his release but this petition was rejected on ... 1961. A similarrequest to the Public Prosecutor of ... 1961 was rejected on ... 1961.On ... 1961 the Applicant for the third time made a request for animmediate trial, relying on this occasion on the Convention of HumanRights. The District Court of C., on ... 1961, ordered him to bereleased pending trial on finding bail of 12,000 DM, but on the sameday, on appeal, the Regional Court of C. reversed this order. On ...1961 the latter court confirmed this decision by holding that thecontinued detention of the Applicant did not violate Article 5,paragraph (3) of the Convention on the ground that this Article was tobe interpreted in the light of the special circumstances of his case;investigations against more than 10 persons had to be carried outalmost 20 years' after the crimes concerned had been committed and noreliable witnesses had apparently survived. The Court also emphasisedthe atrocious character of the crimes. An appeal by the Applicant of... 1961 was rejected by the Regional Court of Appeal on ... 1961.The indictment was drawn up on ... 1961 and on ... 1961 the Courtcommenced its preliminary examination of the case.Both on ... 1961 and on ... 1961 the District Court of C. decided againthat the Applicant could not be released as there was a risk that hemight flee the country, and it prolonged his detention until ... 1962.The Applicant claims damages of 500,000 DM to compensate him for lossof honour, loss of income, for the distress caused to his family andfor the nervous depression from which he suffers as a result of hisdetention. He states that he is merely a scapegoat and that the personsresponsible for the atrocities of the third Reich are the Westerndemocracies and the politicians of the Weimar Republic who, by theirstupidity, lack of moral integrity and lack of courage, paved the wayfor Hitler's assumption of power.Whereas the Applicant alleges violations of Article 5 of theConvention;THE LAWWhereas Article 5, paragraph (3) (Art. 5-3) provides that "Everybodyarrested of detained in accordance with the provisions of paragraph (1)(c) (Art. 5-1-c) of this Article ... shall be entitled to trial withina reasonable time or to release pending trial. Release may beconditioned by guarantees to appear for trial";Whereas in order to decide whether the refusal by the German courts torelease the Applicant was a violation of Article 5, paragraph (3) (Art.5-3) of the Convention, it must first be decided whether or not adelay, which is already one of 19 months, in bringing the Applicant totrial may be considered reasonable within the meaning of Article 5,paragraph (3) (Art. 5-3);Whereas, in respect of this preliminary issue, it is to be pointed out,as has already been held by the Commission in its decision on theadmissibility of Application No. 892/60 (Y. against the FederalRepublic of Germany) (1) that the question whether a period ofdetention pending trial is reasonable or not is not a question to bedecided in abstracto but to be considered in the light of theparticular circumstances of each case; whereas, in the present case,the crimes with which the Applicant is charged were committed 18 years'ago and the circumstances of their perpetration render a conscientiousand proper investigation on the part of the German police exceedinglycomplicated;----------------------------------------------------(1) See Volume VI of this Collection, pages 23 - 24. ----------------------------------------------------Whereas such investigation must necessarily extend over a longer periodthan might be considered in an ordinary case to be reasonable withinthe meaning of Article 5 (Art. 5) of the Convention;Whereas it is further to be taken into account that the proceedingsinvolve other persons than the Applicant as they concern, in general,the responsibility under present German law of a number of individualswho had actively participated in the extermination programme initiatedunder the Nazi regime against persons of Jewish origin and carried outby the SS, of which the Applicant was admittedly a member; whereas itwas required to prepare under unusual and special circumstances a trialon a large scale in order properly to determine not only the questionof the Applicant's guilt, but also the extent to which the guilt ofothers might be taken into account in estimating the degree of theApplicant's responsibility;Whereas the crimes imputed to the Applicant formed merely a part of thelarge-scale crimes committed by the SS in the German-controlledterritories in Eastern Europe in 1941 - 1945; whereas, consequently,the participation of the Applicant in the mass exterminations at B. in1942 - 1943 cannot be properly assessed in isolation but must be seenin its full perspective, which can only be obtained by a trialinvolving all those who participated in the crimes concerned; andwhereas in the light of all the above exceptional circumstances, theCommission does not feel called upon to hold that the delay in bringingthe Applicant to trial, although prolonged, must be unreasonable;Whereas in regard to the principal issue, namely the refusal by theGerman Courts to release the Applicant pending his trial, it is truethat Article 5, paragraph (3) (Art. 5-3), would entitle the Applicantto claim his release if his trial did not take place within areasonable time;Whereas the Commission has already held that in the circumstances ofthe present case a delay of 19 months is not unreasonable; and whereasit follows that the failure to release the Applicant does notconstitute a violation of the provisions of the Convention;Whereas accordingly the complaints made by the Applicant in regard tohis detention are manifestly ill-founded and must be rejected inaccordance with Article 27, paragraph (2) (Art. 27-2) of theConvention;Now therefore the Commission declares this Application INADMISSIBLE."
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a German citizen, born in ... and now living in A.On ... he was arrested at A. on a charge of having participated as anSS-Obersturmführer in mass executions of Jews at B. (Soviet Union) in1942- 43. He was later released but re-arrested on ... 1960. TheApplicant does not deny that he took part in the exterminationprogramme carried out by the SS, but alleges that he did so undercompulsion. He states that he was always been against the persecutionof Jews because to him "the dignity of man is sacred" but, that onprotesting to his superiors, he was informed that if he refused toparticipate he would be executed himself; subsequently he had no longeracted of his own free will but was a mere "tool" of his superiorofficers. The Applicant invokes Article 47 of the Military Codeaccording to which a subordinate soldier cannot be made liable for actsperformed in the course of following orders. Finally, he claims thatthe charges against him are, in any event, barred by time.The Applicant appealed against his arrest but this appeal was rejectedon ... 1960. On ... 1960 he requested an immediate oral hearing of hiscase and, this request having also been refused, he petitioned on ...and ... 1960 to the Public Prosecutor for his release pending trial.These petitions were refused on ... and ... 1960 respectively. Asimilar request made on ... 1960 was rejected by the District Court(Amtsgericht) of C. on ... 1960.On ... 1960 the Applicant renewed his request for an immediate trial,but this was rejected by the District Court of C. on ... 1960. Hesubsequently appealed to the Regional Court (Landgericht) of C. whichon ... 1960 upheld the decision of the lower court. The Court stressedthat "blind obedience does not protect a person from answering tocrimes", that it was to be feared that the Applicant might flee tocountries which usually did not extradite war criminals, that thethreat to the Applicant's own life had not been invoked by him at hisfirst arrest and that similar arguments had not been advanced by anyof the persons charged with him. This decision was upheld by theRegional Court of Appeal (Oberlandesgericht) of C. on ... 1960. On ...1960 the Applicant had petitioned the Parliament of (the Land of D.)for his release but this petition was rejected on ... 1961. A similarrequest to the Public Prosecutor of ... 1961 was rejected on ... 1961.On ... 1961 the Applicant for the third time made a request for animmediate trial, relying on this occasion on the Convention of HumanRights. The District Court of C., on ... 1961, ordered him to bereleased pending trial on finding bail of 12,000 DM, but on the sameday, on appeal, the Regional Court of C. reversed this order. On ...1961 the latter court confirmed this decision by holding that thecontinued detention of the Applicant did not violate Article 5,paragraph (3) of the Convention on the ground that this Article was tobe interpreted in the light of the special circumstances of his case;investigations against more than 10 persons had to be carried outalmost 20 years' after the crimes concerned had been committed and noreliable witnesses had apparently survived. The Court also emphasisedthe atrocious character of the crimes. An appeal by the Applicant of... 1961 was rejected by the Regional Court of Appeal on ... 1961.The indictment was drawn up on ... 1961 and on ... 1961 the Courtcommenced its preliminary examination of the case.Both on ... 1961 and on ... 1961 the District Court of C. decided againthat the Applicant could not be released as there was a risk that hemight flee the country, and it prolonged his detention until ... 1962.The Applicant claims damages of 500,000 DM to compensate him for lossof honour, loss of income, for the distress caused to his family andfor the nervous depression from which he suffers as a result of hisdetention. He states that he is merely a scapegoat and that the personsresponsible for the atrocities of the third Reich are the Westerndemocracies and the politicians of the Weimar Republic who, by theirstupidity, lack of moral integrity and lack of courage, paved the wayfor Hitler's assumption of power.Whereas the Applicant alleges violations of Article 5 of theConvention;THE LAWWhereas Article 5, paragraph (3) (Art. 5-3) provides that "Everybodyarrested of detained in accordance with the provisions of paragraph (1)(c) (Art. 5-1-c) of this Article ... shall be entitled to trial withina reasonable time or to release pending trial. Release may beconditioned by guarantees to appear for trial";Whereas in order to decide whether the refusal by the German courts torelease the Applicant was a violation of Article 5, paragraph (3) (Art.5-3) of the Convention, it must first be decided whether or not adelay, which is already one of 19 months, in bringing the Applicant totrial may be considered reasonable within the meaning of Article 5,paragraph (3) (Art. 5-3);Whereas, in respect of this preliminary issue, it is to be pointed out,as has already been held by the Commission in its decision on theadmissibility of Application No. 892/60 (Y. against the FederalRepublic of Germany) (1) that the question whether a period ofdetention pending trial is reasonable or not is not a question to bedecided in abstracto but to be considered in the light of theparticular circumstances of each case; whereas, in the present case,the crimes with which the Applicant is charged were committed 18 years'ago and the circumstances of their perpetration render a conscientiousand proper investigation on the part of the German police exceedinglycomplicated;----------------------------------------------------(1) See Volume VI of this Collection, pages 23 - 24. ----------------------------------------------------Whereas such investigation must necessarily extend over a longer periodthan might be considered in an ordinary case to be reasonable withinthe meaning of Article 5 (Art. 5) of the Convention;Whereas it is further to be taken into account that the proceedingsinvolve other persons than the Applicant as they concern, in general,the responsibility under present German law of a number of individualswho had actively participated in the extermination programme initiatedunder the Nazi regime against persons of Jewish origin and carried outby the SS, of which the Applicant was admittedly a member; whereas itwas required to prepare under unusual and special circumstances a trialon a large scale in order properly to determine not only the questionof the Applicant's guilt, but also the extent to which the guilt ofothers might be taken into account in estimating the degree of theApplicant's responsibility;Whereas the crimes imputed to the Applicant formed merely a part of thelarge-scale crimes committed by the SS in the German-controlledterritories in Eastern Europe in 1941 - 1945; whereas, consequently,the participation of the Applicant in the mass exterminations at B. in1942 - 1943 cannot be properly assessed in isolation but must be seenin its full perspective, which can only be obtained by a trialinvolving all those who participated in the crimes concerned; andwhereas in the light of all the above exceptional circumstances, theCommission does not feel called upon to hold that the delay in bringingthe Applicant to trial, although prolonged, must be unreasonable;Whereas in regard to the principal issue, namely the refusal by theGerman Courts to release the Applicant pending his trial, it is truethat Article 5, paragraph (3) (Art. 5-3), would entitle the Applicantto claim his release if his trial did not take place within areasonable time;Whereas the Commission has already held that in the circumstances ofthe present case a delay of 19 months is not unreasonable; and whereasit follows that the failure to release the Applicant does notconstitute a violation of the provisions of the Convention;Whereas accordingly the complaints made by the Applicant in regard tohis detention are manifestly ill-founded and must be rejected inaccordance with Article 27, paragraph (2) (Art. 27-2) of theConvention;Now therefore the Commission declares this Application INADMISSIBLE."