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مشاهدة النسخة كاملة : X. v. THE FEDERAL REPUBLIC OF GERMANY - 2077/63 [1964] ECHR 6 (08 July 1964)



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07-15-2009, 12:23 AM
X. v. THE FEDERAL REPUBLIC OF GERMANY - 2077/63 [1964] ECHR 6 (08 July 1964)
THE FACTSWhereas the facts presented by the Parties may be summarised asfollows:The Applicant is a German citizen, born in 1938 and at present detainedin prison at A. He complains of the duration of his detention on remand(Untersuchungshaft). The periods of this detention have been asfollows:1. In a criminal case before the District Court (Amtsgericht) of A.,the Applicant was in detention on remand from November until December1962. On this day the District Court acquitted him of the charges ofprocuring and living on a prostitute's earnings and the warrant for hisarrest (Haftbefehl) in criminal case ... was rescinded.2. Since December 1962, the Applicant has been in detention on remandin a second criminal case pending before the Regional Court(Landgericht) at A and the Federal Court (Bundesgerichtshof). InJanuary 1964 he was convicted and sentenced by the Regional Court andhis appeal (Revision) is pending before the Federal Court. TheApplicant's detention on remand in this case was interrupted duringMarch and from September to November 1963, in order that he shouldserve prison sentences in other cases.The details of the lengthy proceedings in the second criminal case areas follows:The files with the indictment were received by the Regional Court in1963. In June, the Court gave judgment on an appeal against detention(Haftbeschwerde) by the co-defendant Z and decided to hear 31 witnesseson commission. For the purposes of this hearing, the District Courtproduced copies from the files. Following the return of the files, theRegional Court, in July 1963, opened the main proceedings (Eröffnungdes Hauptverfahrens) against the Applicant and others.In July the Office of the Public Prosecutor (Staatsanwaltschaft) at Aissued summonses to the main hearing (Hauptverhandlung). After receiptof the Minutes of the hearing of witnesses on commission and of aconsultative opinion on the defendant Z, the Public Prosecutor's Officereturned the files to the Regional Court in August 1963.In accordance with Article 81 of the Code of Criminal Procedure(Strafprozessordnung), the Court ordered in August that Z should becommitted to a lunatic asylum for observation. In August the Office ofthe Public Prosecutor sent the files to the Provincial Hospital(Landeskrankenhaus) at B for an opinion on Z. After a telephone callasking for the files to be sent back, the Court in September 1963rejected the Applicant's petition of September for release fromdetention on remand, and in September the files were again sent to theProvincial Hospital which had expressly asked for them. The files didnot return to the Court until September 1963, with the opinion of theProvincial Hospital on Z.In the meanwhile - in June, and July - the Applicant's defence counselhad applied in writing to receive the files for inspection and, at thebeginning of September 1963, she also asked orally at the Registry(Geschäftsstelle) of the Court to be allowed to inspect them. However,she did not receive the files until the end of September when theyreturned from the Provincial Hospital and, therefore, she applied foradjournment in the main hearing in October 1963. The Regional Courtthereupon detached the proceedings against the Applicant and Z from themain proceedings which were continued in respect of the otherdefendants.In October, the Applicant lodged with the Regional Court an appeal(Beschwerde) against the above-mentioned decision of September 1963 bywhich the Court had rejected his petition for release from detentionon remand. Shortly afterwards, his counsel lodged with the RegionalCourt an appeal dated October 1963 against the warrant for arrestissued in this case by the District Court in December 1962, pleadingas a new ground that the Applicant was no longer fit to remain indetention for reasons of health. As already mentioned, at that time -namely from September to November 1963 - the Applicant was in penalconfinement in the interval of detention on remand.The Regional Court considered the Applicant's appeal of October to havebeen superseded by his counsel's appeal of October and, consequently,did not immediately submit it to the Court of Appeal(Oberlandesgericht) at C. Instead, the Regional Court, in November 1963requested from the prison physician an opinion on the Applicant'sfitness to remain in detention. Following receipt of the doctor'sopinion in November, the Court, in November 1963, dismissed the appealagainst detention lodged by the Applicant's counsel, rejecting herallegations that the Applicant's detention on remand was no longernecessary and that, for reasons of health, he was unfit for furtherdetention.In December the Applicant referred to the Federal Constitutional Court(Bundesverfassungsgericht) but, by a letter of December 1963 from theRegistrar (Präsidialrat) of the Court, he was informed that hispetition had not been registered as a constitutional appeal(Verfassungsbeschwerde) on the ground that he had apparently failed toseize the Court of Appeal and that, consequently, a constitutionalappeal would have been inadmissible.Thereupon the Applicant lodged with the Regional Court a further appeal(weitere Beschwerde) dated December against the Court's decision ofNovember 1963 by which the appeal against detention introduced by hiscounsel had been dismissed. In December 1963 the Regional Court decidednot to allow this further appeal, which was consequently submitted, inaccordance with Article 306, paragraph (2) of the Code of CriminalProcedure (Strafprozessordnung), to the Court of Appeal was declaredinadmissible by the Federal Constitutional Court in February 1964 onthe ground that it was manifestly ill-founded.In the meanwhile, in January 1964, the Applicant had finally beenconvicted by the Regional Court on fifteen counts of charges ofaggravated larceny and further charges of conspiracy to commit a felonyunder Article 49 of the Penal Code (Strafgesetzbuch). He was sentencedto six years' penal servitude (including his detention on remand) withloss of civic rights for five years, police supervision beingauthorised and his driving licence being suspended for five years, inaccordance with Article 42 of the Penal Code. His appeal (Revision) inthis case with the Federal Court.In February 1964 the Applicant was also convicted and sentenced incriminal case ... As already mentioned, he had been in detention onremand in this case from November until December 1962 when he wasacquitted by the District Court of the charges of procuring and livingon a prostitute's earnings. The Office of the Public Prosecutor,however, lodged an appeal (Berufung) with the Regional Court which, inFebruary 1963, reversed the decision of the District Court andsentenced the Applicant to two years' imprisonment for aggravatedoffenses of procuring. On further appeal (Revision) by the Applicant,the Court of Appeal, at a date not indicated by the Parties, quashedthe judgment of the Regional Court and ordered that a new trial be heldbefore that Court. In February 1964 the Regional Court again aggravatedoffenses of procuring. His appeal (Revision) from this decision ispending with the Court of Appeal.Submissions of the PartiesThe Applicant alleges violations of Article 5, paragraphs (3) and (4)of the Convention. He claims his immediate release from detention.The Respondent Government is of the opinion that the Applicant'srights under Article 5 have not been infringed as there was no unduedelay in the proceedings complained of. It also points out that thejudgment of January 1964 in criminal case ... by which the Applicantwas sentenced to six years' penal servitude, made full allowance forhis detention on remand in that case.THE LAWWhereas the Applicant complains that Article 5, paragraph (4)(Art. 5-4) of the Convention was violated in his case; whereas, underthis provision, everyone who is deprived of his liberty by arrest ordetention shall be entitled to take proceedings by which the lawfulnessof his detention shall be decided speedily by a court and his releaseordered if the detention is not lawful; whereas the Applicant wasarrested in November 1962; whereas, however, it does not appear thathe availed himself of his right, in accordance with the relevantprovisions of German domestic law, to take proceedings within themeaning of Article 5, paragraph (4) (Art. 5-4) of the Convention,before September 1963, the date when he lodged with the Regional Courta petition for release from detention, whereas it follows that, untilthat date, no violation of Article 5, paragraph (4) (Art. 5-4) hasoccurred;Whereas the Applicant's petition of September for release was rejectedby the Regional Court in September 1963; whereas, thereby, it was"decided speedily by a court", in accordance with Article 5, paragraph(4) (Art. 5-4),Whereas it is true that the Applicant's appeal of October against thedecision of September 1963 was not immediately submitted by theRegional Court to the Court of Appeal; whereas, however, the Applicantwas not in detention on remand at that time but serving a prisonsentence resulting from his conviction in another case which hadacquired the force of res judicata; whereas, furthermore, the RegionalCourt considered his appeal of October to be superseded by the appeallodged in October 1963 by his counsel which contained new arguments;whereas the Court did not thereby prejudice any rights of the Applicantunder the Convention; and whereas, on the second day following the endof the Applicant's imprisonment, and after recommencement of hisdetention on remand in November 1963, the Regional Court took actionon his appeals against detention and, in November 1963, openedenquiries into the fitness of the Applicant to remain in detention;whereas, following the receipt of the doctor's opinion in November, theCourt in November 1963 dismissed the appeal lodged by the Applicant'scounsel; whereas, moreover, the Regional Court decided in December 1963not to allow the Applicant's further appeal of December against thisdecision; whereas this appeal, which was consequently referred to theCourt of Appeal, was dismissed in January 1964; and whereas theApplicant's subsequent constitutional appeal was declared inadmissibleby the Federal Constitutional Court in February 1964; whereas, inconclusion, the Commission finds that these proceedings do not discloseany appearance of a violation of Article 5, paragraph (4) (Art. 5-4)of the Convention; whereas it follows that this part of the Applicationis manifestly ill-founded and must be rejected in accordance withArticle 27, paragraph (2) (Art. 27-2) of the Convention;Whereas the Applicant also complains that Article 5, paragraph (3)(Art. 5-3) of the Convention was violated in his case;Whereas, under this provision, everyone arrested or detained inaccordance with paragraph (1), sub-paragraph (c) of Article 5(Art. 5-1-c), shall be brought promptly before a judge or other officerauthorised by law to exercise judicial power and shall be entitled totrial within a reasonable time or to release pending trial;Whereas the Applicant, who was arrested and obtained in accordance withArticle 5, paragraph (1), sub-paragraph (c) (Art. 5-1-c) does notdispute that he was brought promptly before a judge; whereas, however,the question arise whether he was tried "within a reasonable time"having been in detention on remand in criminal case ... for about oneyear until he was convicted and sentenced in January 1964;Whereas the Commission has held on several occasions that the questionwhether a period of detention pending trial is reasonable or not cannotbe decided in abstracto but must be considered in the light of theparticular circumstances of each case (see Applications Nos. 892/60 and920/60, Yearbook of the European Convention on Human Rights, Volume 4,pages 240 [252], and Collection of Decisions of the Commission, Volume8 pages 46 [48]; whereas, in the present case, allowance must be madein particular for the large number of offenses imputed to theApplicant, which could not fail to affect the time required to conducta preliminary investigation of his case; whereas it is also to be takeninto account that the investigations involved other persons who wereaccused together with the Applicant; whereas, in particular, themedical observation and examination of the co-defendant Z as to hiscriminal responsibility delayed the proceedings against the Applicantand Z were detached from the main proceedings and the Applicant wastried at a later date; whereas, finally, between September 1963 and hisconviction and sentence in January 1964, the Applicant made variousappeals which, whilst they left the reasons for his continued detentionon remand under the constant control of the German judicialauthorities, inevitably delayed further the delivery of a verdict;whereas, in conclusion, an examination of the case does not reveal thatthe detention of the Applicant was unduly prolonged; whereas,consequently, it does not disclose any appearance of a violation ofArticle 5, paragraph (3) (Art. 5-3) of the Convention; whereas itfollows that the remainder of the Application is manifestly ill-foundedand must be rejected in accordance with Article 27, paragraph (2)(Art. 27-2) of the Convention;Now therefore the Commission declares this Application INADMISSIBLE.