هيثم الفقى
07-15-2009, 12:25 AM
THE FACTS
Whereas the facts presented by the Parties may be summarised as
follows:
The Applicant is a German citizen, born in 1938 and at present detained
in prison at A. He complains of the duration of his detention on remand
(Untersuchungshaft). The periods of this detention have been as
follows:
1. In a criminal case before the District Court (Amtsgericht) of A.,
the Applicant was in detention on remand from November until December
1962. On this day the District Court acquitted him of the charges of
procuring and living on a prostitute's earnings and the warrant for his
arrest (Haftbefehl) in criminal case ... was rescinded.
2. Since December 1962, the Applicant has been in detention on remand
in a second criminal case pending before the Regional Court
(Landgericht) at A and the Federal Court (Bundesgerichtshof). In
January 1964 he was convicted and sentenced by the Regional Court and
his appeal (Revision) is pending before the Federal Court. The
Applicant's detention on remand in this case was interrupted during
March and from September to November 1963, in order that he should
serve prison sentences in other cases.
The details of the lengthy proceedings in the second criminal case are
as follows:
The files with the indictment were received by the Regional Court in
1963. In June, the Court gave judgment on an appeal against detention
(Haftbeschwerde) by the co-defendant Z and decided to hear 31 witnesses
on commission. For the purposes of this hearing, the District Court
produced copies from the files. Following the return of the files, the
Regional Court, in July 1963, opened the main proceedings (Eröffnung
des Hauptverfahrens) against the Applicant and others.
In July the Office of the Public Prosecutor (Staatsanwaltschaft) at A
issued summonses to the main hearing (Hauptverhandlung). After receipt
of the Minutes of the hearing of witnesses on commission and of a
consultative opinion on the defendant Z, the Public Prosecutor's Office
returned 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 be
committed to a lunatic asylum for observation. In August the Office of
the Public Prosecutor sent the files to the Provincial Hospital
(Landeskrankenhaus) at B for an opinion on Z. After a telephone call
asking for the files to be sent back, the Court in September 1963
rejected the Applicant's petition of September for release from
detention on remand, and in September the files were again sent to the
Provincial Hospital which had expressly asked for them. The files did
not return to the Court until September 1963, with the opinion of the
Provincial Hospital on Z.
In the meanwhile - in June, and July - the Applicant's defence counsel
had applied in writing to receive the files for inspection and, at the
beginning 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 they
returned from the Provincial Hospital and, therefore, she applied for
adjournment in the main hearing in October 1963. The Regional Court
thereupon detached the proceedings against the Applicant and Z from the
main proceedings which were continued in respect of the other
defendants.
In October, the Applicant lodged with the Regional Court an appeal
(Beschwerde) against the above-mentioned decision of September 1963 by
which the Court had rejected his petition for release from detention
on remand. Shortly afterwards, his counsel lodged with the Regional
Court an appeal dated October 1963 against the warrant for arrest
issued in this case by the District Court in December 1962, pleading
as a new ground that the Applicant was no longer fit to remain in
detention for reasons of health. As already mentioned, at that time -
namely from September to November 1963 - the Applicant was in penal
confinement in the interval of detention on remand.
The Regional Court considered the Applicant's appeal of October to have
been 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 1963
requested from the prison physician an opinion on the Applicant's
fitness to remain in detention. Following receipt of the doctor's
opinion in November, the Court, in November 1963, dismissed the appeal
against detention lodged by the Applicant's counsel, rejecting her
allegations that the Applicant's detention on remand was no longer
necessary and that, for reasons of health, he was unfit for further
detention.
In December the Applicant referred to the Federal Constitutional Court
(Bundesverfassungsgericht) but, by a letter of December 1963 from the
Registrar (Präsidialrat) of the Court, he was informed that his
petition had not been registered as a constitutional appeal
(Verfassungsbeschwerde) on the ground that he had apparently failed to
seize the Court of Appeal and that, consequently, a constitutional
appeal would have been inadmissible.
Thereupon the Applicant lodged with the Regional Court a further appeal
(weitere Beschwerde) dated December against the Court's decision of
November 1963 by which the appeal against detention introduced by his
counsel had been dismissed. In December 1963 the Regional Court decided
not to allow this further appeal, which was consequently submitted, in
accordance with Article 306, paragraph (2) of the Code of Criminal
Procedure (Strafprozessordnung), to the Court of Appeal was declared
inadmissible by the Federal Constitutional Court in February 1964 on
the ground that it was manifestly ill-founded.
In the meanwhile, in January 1964, the Applicant had finally been
convicted by the Regional Court on fifteen counts of charges of
aggravated larceny and further charges of conspiracy to commit a felony
under Article 49 of the Penal Code (Strafgesetzbuch). He was sentenced
to six years' penal servitude (including his detention on remand) with
loss of civic rights for five years, police supervision being
authorised and his driving licence being suspended for five years, in
accordance with Article 42 of the Penal Code. His appeal (Revision) in
this case with the Federal Court.
In February 1964 the Applicant was also convicted and sentenced in
criminal case ... As already mentioned, he had been in detention on
remand in this case from November until December 1962 when he was
acquitted by the District Court of the charges of procuring and living
on a prostitute's earnings. The Office of the Public Prosecutor,
however, lodged an appeal (Berufung) with the Regional Court which, in
February 1963, reversed the decision of the District Court and
sentenced the Applicant to two years' imprisonment for aggravated
offenses of procuring. On further appeal (Revision) by the Applicant,
the Court of Appeal, at a date not indicated by the Parties, quashed
the judgment of the Regional Court and ordered that a new trial be held
before that Court. In February 1964 the Regional Court again aggravated
offenses of procuring. His appeal (Revision) from this decision is
pending with the Court of Appeal.
Submissions of the Parties
The 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's
rights under Article 5 have not been infringed as there was no undue
delay in the proceedings complained of. It also points out that the
judgment of January 1964 in criminal case ... by which the Applicant
was sentenced to six years' penal servitude, made full allowance for
his detention on remand in that case.
THE LAW
Whereas the Applicant complains that Article 5, paragraph (4)
(Art. 5-4) of the Convention was violated in his case; whereas, under
this provision, everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the lawfulness
of his detention shall be decided speedily by a court and his release
ordered if the detention is not lawful; whereas the Applicant was
arrested in November 1962; whereas, however, it does not appear that
he availed himself of his right, in accordance with the relevant
provisions of German domestic law, to take proceedings within the
meaning of Article 5, paragraph (4) (Art. 5-4) of the Convention,
before September 1963, the date when he lodged with the Regional Court
a petition for release from detention, whereas it follows that, until
that date, no violation of Article 5, paragraph (4) (Art. 5-4) has
occurred;
Whereas the Applicant's petition of September for release was rejected
by 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 the
decision of September 1963 was not immediately submitted by the
Regional Court to the Court of Appeal; whereas, however, the Applicant
was not in detention on remand at that time but serving a prison
sentence resulting from his conviction in another case which had
acquired the force of res judicata; whereas, furthermore, the Regional
Court considered his appeal of October to be superseded by the appeal
lodged in October 1963 by his counsel which contained new arguments;
whereas the Court did not thereby prejudice any rights of the Applicant
under the Convention; and whereas, on the second day following the end
of the Applicant's imprisonment, and after recommencement of his
detention on remand in November 1963, the Regional Court took action
on his appeals against detention and, in November 1963, opened
enquiries into the fitness of the Applicant to remain in detention;
whereas, following the receipt of the doctor's opinion in November, the
Court in November 1963 dismissed the appeal lodged by the Applicant's
counsel; whereas, moreover, the Regional Court decided in December 1963
not to allow the Applicant's further appeal of December against this
decision; whereas this appeal, which was consequently referred to the
Court of Appeal, was dismissed in January 1964; and whereas the
Applicant's subsequent constitutional appeal was declared inadmissible
by the Federal Constitutional Court in February 1964; whereas, in
conclusion, the Commission finds that these proceedings do not disclose
any appearance of a violation of Article 5, paragraph (4) (Art. 5-4)
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 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 in
accordance with paragraph (1), sub-paragraph (c) of Article 5
(Art. 5-1-c), shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial;
Whereas the Applicant, who was arrested and obtained in accordance with
Article 5, paragraph (1), sub-paragraph (c) (Art. 5-1-c) does not
dispute 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 one
year until he was convicted and sentenced in January 1964;
Whereas the Commission has held on several occasions that the question
whether a period of detention pending trial is reasonable or not cannot
be decided in abstracto but must be considered in the light of the
particular circumstances of each case (see Applications Nos. 892/60 and
920/60, Yearbook of the European Convention on Human Rights, Volume 4,
pages 240 [252], and Collection of Decisions of the Commission, Volume
8 pages 46 [48]; whereas, in the present case, allowance must be made
in particular for the large number of offenses imputed to the
Applicant, which could not fail to affect the time required to conduct
a preliminary investigation of his case; whereas it is also to be taken
into account that the investigations involved other persons who were
accused together with the Applicant; whereas, in particular, the
medical observation and examination of the co-defendant Z as to his
criminal responsibility delayed the proceedings against the Applicant
and Z were detached from the main proceedings and the Applicant was
tried at a later date; whereas, finally, between September 1963 and his
conviction and sentence in January 1964, the Applicant made various
appeals which, whilst they left the reasons for his continued detention
on remand under the constant control of the German judicial
authorities, inevitably delayed further the delivery of a verdict;
whereas, in conclusion, an examination of the case does not reveal that
the detention of the Applicant was unduly prolonged; whereas,
consequently, it does not disclose any appearance of a violation of
Article 5, paragraph (3) (Art. 5-3) of the Convention; whereas it
follows that the remainder of the Application is 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.
Whereas the facts presented by the Parties may be summarised as
follows:
The Applicant is a German citizen, born in 1938 and at present detained
in prison at A. He complains of the duration of his detention on remand
(Untersuchungshaft). The periods of this detention have been as
follows:
1. In a criminal case before the District Court (Amtsgericht) of A.,
the Applicant was in detention on remand from November until December
1962. On this day the District Court acquitted him of the charges of
procuring and living on a prostitute's earnings and the warrant for his
arrest (Haftbefehl) in criminal case ... was rescinded.
2. Since December 1962, the Applicant has been in detention on remand
in a second criminal case pending before the Regional Court
(Landgericht) at A and the Federal Court (Bundesgerichtshof). In
January 1964 he was convicted and sentenced by the Regional Court and
his appeal (Revision) is pending before the Federal Court. The
Applicant's detention on remand in this case was interrupted during
March and from September to November 1963, in order that he should
serve prison sentences in other cases.
The details of the lengthy proceedings in the second criminal case are
as follows:
The files with the indictment were received by the Regional Court in
1963. In June, the Court gave judgment on an appeal against detention
(Haftbeschwerde) by the co-defendant Z and decided to hear 31 witnesses
on commission. For the purposes of this hearing, the District Court
produced copies from the files. Following the return of the files, the
Regional Court, in July 1963, opened the main proceedings (Eröffnung
des Hauptverfahrens) against the Applicant and others.
In July the Office of the Public Prosecutor (Staatsanwaltschaft) at A
issued summonses to the main hearing (Hauptverhandlung). After receipt
of the Minutes of the hearing of witnesses on commission and of a
consultative opinion on the defendant Z, the Public Prosecutor's Office
returned 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 be
committed to a lunatic asylum for observation. In August the Office of
the Public Prosecutor sent the files to the Provincial Hospital
(Landeskrankenhaus) at B for an opinion on Z. After a telephone call
asking for the files to be sent back, the Court in September 1963
rejected the Applicant's petition of September for release from
detention on remand, and in September the files were again sent to the
Provincial Hospital which had expressly asked for them. The files did
not return to the Court until September 1963, with the opinion of the
Provincial Hospital on Z.
In the meanwhile - in June, and July - the Applicant's defence counsel
had applied in writing to receive the files for inspection and, at the
beginning 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 they
returned from the Provincial Hospital and, therefore, she applied for
adjournment in the main hearing in October 1963. The Regional Court
thereupon detached the proceedings against the Applicant and Z from the
main proceedings which were continued in respect of the other
defendants.
In October, the Applicant lodged with the Regional Court an appeal
(Beschwerde) against the above-mentioned decision of September 1963 by
which the Court had rejected his petition for release from detention
on remand. Shortly afterwards, his counsel lodged with the Regional
Court an appeal dated October 1963 against the warrant for arrest
issued in this case by the District Court in December 1962, pleading
as a new ground that the Applicant was no longer fit to remain in
detention for reasons of health. As already mentioned, at that time -
namely from September to November 1963 - the Applicant was in penal
confinement in the interval of detention on remand.
The Regional Court considered the Applicant's appeal of October to have
been 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 1963
requested from the prison physician an opinion on the Applicant's
fitness to remain in detention. Following receipt of the doctor's
opinion in November, the Court, in November 1963, dismissed the appeal
against detention lodged by the Applicant's counsel, rejecting her
allegations that the Applicant's detention on remand was no longer
necessary and that, for reasons of health, he was unfit for further
detention.
In December the Applicant referred to the Federal Constitutional Court
(Bundesverfassungsgericht) but, by a letter of December 1963 from the
Registrar (Präsidialrat) of the Court, he was informed that his
petition had not been registered as a constitutional appeal
(Verfassungsbeschwerde) on the ground that he had apparently failed to
seize the Court of Appeal and that, consequently, a constitutional
appeal would have been inadmissible.
Thereupon the Applicant lodged with the Regional Court a further appeal
(weitere Beschwerde) dated December against the Court's decision of
November 1963 by which the appeal against detention introduced by his
counsel had been dismissed. In December 1963 the Regional Court decided
not to allow this further appeal, which was consequently submitted, in
accordance with Article 306, paragraph (2) of the Code of Criminal
Procedure (Strafprozessordnung), to the Court of Appeal was declared
inadmissible by the Federal Constitutional Court in February 1964 on
the ground that it was manifestly ill-founded.
In the meanwhile, in January 1964, the Applicant had finally been
convicted by the Regional Court on fifteen counts of charges of
aggravated larceny and further charges of conspiracy to commit a felony
under Article 49 of the Penal Code (Strafgesetzbuch). He was sentenced
to six years' penal servitude (including his detention on remand) with
loss of civic rights for five years, police supervision being
authorised and his driving licence being suspended for five years, in
accordance with Article 42 of the Penal Code. His appeal (Revision) in
this case with the Federal Court.
In February 1964 the Applicant was also convicted and sentenced in
criminal case ... As already mentioned, he had been in detention on
remand in this case from November until December 1962 when he was
acquitted by the District Court of the charges of procuring and living
on a prostitute's earnings. The Office of the Public Prosecutor,
however, lodged an appeal (Berufung) with the Regional Court which, in
February 1963, reversed the decision of the District Court and
sentenced the Applicant to two years' imprisonment for aggravated
offenses of procuring. On further appeal (Revision) by the Applicant,
the Court of Appeal, at a date not indicated by the Parties, quashed
the judgment of the Regional Court and ordered that a new trial be held
before that Court. In February 1964 the Regional Court again aggravated
offenses of procuring. His appeal (Revision) from this decision is
pending with the Court of Appeal.
Submissions of the Parties
The 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's
rights under Article 5 have not been infringed as there was no undue
delay in the proceedings complained of. It also points out that the
judgment of January 1964 in criminal case ... by which the Applicant
was sentenced to six years' penal servitude, made full allowance for
his detention on remand in that case.
THE LAW
Whereas the Applicant complains that Article 5, paragraph (4)
(Art. 5-4) of the Convention was violated in his case; whereas, under
this provision, everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the lawfulness
of his detention shall be decided speedily by a court and his release
ordered if the detention is not lawful; whereas the Applicant was
arrested in November 1962; whereas, however, it does not appear that
he availed himself of his right, in accordance with the relevant
provisions of German domestic law, to take proceedings within the
meaning of Article 5, paragraph (4) (Art. 5-4) of the Convention,
before September 1963, the date when he lodged with the Regional Court
a petition for release from detention, whereas it follows that, until
that date, no violation of Article 5, paragraph (4) (Art. 5-4) has
occurred;
Whereas the Applicant's petition of September for release was rejected
by 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 the
decision of September 1963 was not immediately submitted by the
Regional Court to the Court of Appeal; whereas, however, the Applicant
was not in detention on remand at that time but serving a prison
sentence resulting from his conviction in another case which had
acquired the force of res judicata; whereas, furthermore, the Regional
Court considered his appeal of October to be superseded by the appeal
lodged in October 1963 by his counsel which contained new arguments;
whereas the Court did not thereby prejudice any rights of the Applicant
under the Convention; and whereas, on the second day following the end
of the Applicant's imprisonment, and after recommencement of his
detention on remand in November 1963, the Regional Court took action
on his appeals against detention and, in November 1963, opened
enquiries into the fitness of the Applicant to remain in detention;
whereas, following the receipt of the doctor's opinion in November, the
Court in November 1963 dismissed the appeal lodged by the Applicant's
counsel; whereas, moreover, the Regional Court decided in December 1963
not to allow the Applicant's further appeal of December against this
decision; whereas this appeal, which was consequently referred to the
Court of Appeal, was dismissed in January 1964; and whereas the
Applicant's subsequent constitutional appeal was declared inadmissible
by the Federal Constitutional Court in February 1964; whereas, in
conclusion, the Commission finds that these proceedings do not disclose
any appearance of a violation of Article 5, paragraph (4) (Art. 5-4)
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 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 in
accordance with paragraph (1), sub-paragraph (c) of Article 5
(Art. 5-1-c), shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial;
Whereas the Applicant, who was arrested and obtained in accordance with
Article 5, paragraph (1), sub-paragraph (c) (Art. 5-1-c) does not
dispute 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 one
year until he was convicted and sentenced in January 1964;
Whereas the Commission has held on several occasions that the question
whether a period of detention pending trial is reasonable or not cannot
be decided in abstracto but must be considered in the light of the
particular circumstances of each case (see Applications Nos. 892/60 and
920/60, Yearbook of the European Convention on Human Rights, Volume 4,
pages 240 [252], and Collection of Decisions of the Commission, Volume
8 pages 46 [48]; whereas, in the present case, allowance must be made
in particular for the large number of offenses imputed to the
Applicant, which could not fail to affect the time required to conduct
a preliminary investigation of his case; whereas it is also to be taken
into account that the investigations involved other persons who were
accused together with the Applicant; whereas, in particular, the
medical observation and examination of the co-defendant Z as to his
criminal responsibility delayed the proceedings against the Applicant
and Z were detached from the main proceedings and the Applicant was
tried at a later date; whereas, finally, between September 1963 and his
conviction and sentence in January 1964, the Applicant made various
appeals which, whilst they left the reasons for his continued detention
on remand under the constant control of the German judicial
authorities, inevitably delayed further the delivery of a verdict;
whereas, in conclusion, an examination of the case does not reveal that
the detention of the Applicant was unduly prolonged; whereas,
consequently, it does not disclose any appearance of a violation of
Article 5, paragraph (3) (Art. 5-3) of the Convention; whereas it
follows that the remainder of the Application is 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.