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07-15-2009, 12:29 AM
H.G. and W.G. v. THE FEDERAL REPUBLIC OF GERMANY - 2294/64 [1964] ECHR 11 (16 December 1964)
THE FACTSWhereas the facts as presented by the Parties may be summarised asfollows:The Applicants are German citizens, living in Berlin. The ApplicantHelga Gericke was born in 1924; her husband, Wilhelm Gericke, in 1916.Submitting a power-of-attorney signed by her husband, Helga Gericke hasintroduced the present Application both on her own behalf and asrepresentative of her husband, Wilhelm Gericke.The Application concerns the detention pending trial of WilhelmGericke.On 9th November 1961, the Applicant Wilhelm Gericke, who had been asigning official (Prokurist) of the August Thyssen Bank in Berlin, wasarrested on suspicion of having committed abuse of trust (Untreue)under Article 266 of the Penal Code (Strafgesetzbuch) by havingknowingly misused the authority conferred on him to dispose of theproperty of a third party or to bind a third party and failed in theduty imposed on him and derived from his position of trust to protectthe property interests of a third party, thereby causing damage to theparty concerned. He was alleged to have co-operated with Karl-HeinzWemhoff, arrested on the same day, whose Application No. 2122/64 wasdeclared admissible by the Commission on 2nd July 1964 (1).The warrant of arrest (Haftbefehl) was originally issued on the groundsthat the Applicant, Wilhelm Gericke, might flee the country(Fluchtverdacht) or interfere in the investigation of his case bysuppressing evidence of influencing witnesses (Verdunkelungsgefahr).Later, the warrant was confirmed on the sole ground of suspicion offlight.--------------------------(1) Cf. volume 14, page 29.--------------------------On 28th June 1963, the District Court (Amtsgericht) ofBerlin-Tiergarten decided that the Applicant Wilhelm Gericke should bereleased pending trial on condition that he surrendered his identitypapers to the Office of the Public Prosecutor (Staatsanwaltschaft) ofBerlin and that he registered twice a day with the police.On appeal (Beschwerde) by the Office of the Public Prosecutor, thisdecision was, however, reversed by the Regional Court (Landgericht) ofBerlin on 19th July 1963, and the further appeal of the secondApplicant was dismissed by the Court of Appeal (Kammergericht) ofBerlin on 5th August 1963.On 23rd April 1964 the indictment was lodged with the Regional Court,and on 17th July 1964 the second Applicant, together with Wemhoff andseveral other defendants, was committed for trial (Eröffnung desHauptverfahrens), a new order for his continued detention having beenmade by the Regional Court on 7th July.On 16th October 1964, the Regional Court ruled that the detention ofthe second Applicant should continue. His appeal from this decision wasdismissed by the Court of Appeal on 13th November 1964, the trial(Hauptverhandlung) having opened before the Regional Court on 9thNovember 1964.Pointing out that Wilhelm Gericke has been detained on remand for aperiod of three years, both Applicants allege a violation of Article5, paragraph (3), of the Convention.Proceedings before the CommissionA group of three members of the Commission examined the Application on15th September 1964, and the President of the Commission decided on17th September 1964:1. in accordance with Rule 38 of the Rules of Procedure, to givepriority to the Application;2. in accordance with Rule 45, paragraph (2) of the Rules of Procedure,to give notice of the Application to the Government of the FederalRepublic of Germany and to invite the Government to submit to theCommission within a time-limit of six weeks its observations in writingon the admissibility of the Application.Under cover of a letter dated 28th October 1964, the RespondentGovernment submitted a report of the Attorney-General(Generalstaatsanwalt) at the Regional Court of Berlin of 8th October1964, together with copies of court decisions, and of opinions renderedby the prosecution concerning the detention of the second Applicant.The Government stated that the exceptional ramifications of the caseand the complexity of the facts which had to be investigated might begauged from these documents together with the written accusation(Anklageschrift) of some 850 pages and the six-volume auditor's opinionalready submitted in connection with the Wemhoff Application No.2122/64; these circumstances explained the long duration of thedetention on remand in this particular case as compared with othercriminal proceedings.In the report of the Attorney-General, it was stated that theprosecution and the Court did everything in their power to reduce toa minimum the time between the arrest of the second Applicant and histrial. It was also submitted that a real risk of his escape made hiscontinued detention necessary during that period.On 30th October 1964, the Government's observations of 28th Octoberwere sent to the Applicant, Helga Gericke, who was invited to submither reply on or before 23rd November 1964.Under cover of a letter dated 18th November 1964, the first Applicantsubmitted the following reply on her own behalf and as representativeof her husband:1. As a result of the prolonged detention of the Applicant WilhelmGericke, the Applicant, Helga Gericke, and their two children have beendeprived of support for over three years. The education of thechildren, too, is in danger as the Applicant, Helga Gericke, workingto earn their living, must very often leave the children alone.2. In the name of her husband, the Applicant Helga Gericke protestedagainst the statement of the prosecution and the courts that, becausehe might be sentenced to a long term of imprisonment and would neverbe able to make good the damage inflicted by him on the August ThyssenBank, the Applicant, Wilhelm Gericke, was suspected of intending toescape. That he had no such intention was shown by the fact that, untilhis arrest, he had remained in Berlin where were his wife, children andhis mother. He had also fully co-operated with the prosecution andoffered bail. In the opinion of the Applicants, there is a danger thatan excessive sentence may be imposed in order to justify the durationof detention pending trial.THE LAWI. As to the complaint under Article 5, paragraph (3) (Art. 5-3),of the Convention, made on behalf of the Applicant, Wilhelm Gericke;Whereas Article 5, paragraph (3) (Art. 5-3), provides that everyonearrested or detained in accordance with the provisions of paragraph(1), sub-paragraph (c), of this Article (Art. 5-1-c) "shall be entitledto trial within a reasonable time or to release pending trial"; whereasit is not disputed that the Applicant, Wilhelm Gericke, was arrestedon 9th November 1961 on suspicion of having committed abuse of trust;that he has been detained since that date, his various applications forrelease from custody having been rejected by the competent Courts; andthat his trial was finally opened before the Regional Court on 9thNovember 1964;Whereas the Applicants allege that the detention pending trial of theApplicant, Wilhelm Gericke, during a period of three years, namely,from his arrest on 9th November 1961 until the opening of his trial on9th November 1964, constitutes a violation of Article 5, paragraph (3)(Art. 5-3), of the Convention;Whereas the Respondent Government submits that, in the present case,the duration of the detention on remand is justified in view of thecomplexity of the facts which were to be investigated; that theinvestigation was carried out with the greatest possible expedition;and that the continued detention of the Applicant was necessary inorder to prevent his escape;Whereas the Commission was called upon to examine a similar issue inApplication No. 343/57 (Nielsen v. Denmark) in which the Applicant wasdetained for 29 months pending trial; whereas, although it rejectedthis part of the Application for non-exhaustion of domestic remediesin accordance with Articles 26 and 27, paragraph (3) (Art. 27-3),of the Convention, the Commission, "having regard to the very longperiod of time which elapsed before the Applicant was brought to trialin the present case and to the general circumstances of the case",considered that the Applicant's complaint of an alleged violation ofhis right to trial within a reasonable time, under Article 5, paragraph(3) (Art. 5-3), was not "manifestly ill-founded" within the meaning ofArticle 27, paragraph (2) (Art. 27-2), of the Convention (Yearbook ofthe European Convention on Human Rights, Volume 2, pages 412 [452,454]);Whereas Article 27, paragraph (2) (Art. 27-2), of the Convention, inrequiring the Commission to declare inadmissible any application froman individual which it considers to be "manifestly ill-founded", doesnot permit the Commission to reject a complaint whose lack offoundation cannot be so described (see Applications Numbers 1474/62 and1769/63 - Collection of Decisions of the Commission, Volume 11, pages50 and 59); whereas in the present case the Commission has carried outa preliminary examination of the information and arguments submittedby the Parties regarding the Applicants' complaint that the Applicant,Wilhelm Gericke, was not brought to trial within a reasonable time norreleased from detention pending trial, within the meaning of Article5, paragraph (3) (Art. 5-3), of the Convention; whereas the Commissionfinds that this complaint is of such complexity that its determinationshould depend upon an examination of its merits; whereas it followsthat it cannot be regarded as manifestly ill-founded within the meaningof Article 27, paragraph (2) (Art. 27-2);Whereas, therefore, it cannot be declared inadmissible on the ground(see Application Number 2122/64, Collection of Decisions, Volume 14,page 29);II. As regards the remainder of the Application, namely, in so far asit concerns the complaints made independently by the Applicant HelgaGerickeWhereas the Applicant, Helga Gericke, complains that, as a result ofprolonged detention of her husband, the Applicant Wilhelm Gericke, sheand their two children have been deprived of their main support forover three years; that the education of their children is in danger asshe is working to earn their living and must very often leave themalone; whereas, in respect of these complaints, the Commission findsthat an examination of the file in its present state does not give itthe information required for deciding whether or not this part of theApplication is admissible; whereas, therefore, the Commission decidesto adjourn, pending the examination of the merits of the complaintdealt with under I above, its examination of this remaining part of theApplication;Now, therefore, the Commission:1. Declares admissible, without in any way prejudging its merits, theComplaint under Article 5, paragraph (3) (Art. 5-3), of the Convention,made on behalf of the Applicant, Wilhelm Gericke;2. Adjourns its examination of the remainder of the Application.
THE FACTSWhereas the facts as presented by the Parties may be summarised asfollows:The Applicants are German citizens, living in Berlin. The ApplicantHelga Gericke was born in 1924; her husband, Wilhelm Gericke, in 1916.Submitting a power-of-attorney signed by her husband, Helga Gericke hasintroduced the present Application both on her own behalf and asrepresentative of her husband, Wilhelm Gericke.The Application concerns the detention pending trial of WilhelmGericke.On 9th November 1961, the Applicant Wilhelm Gericke, who had been asigning official (Prokurist) of the August Thyssen Bank in Berlin, wasarrested on suspicion of having committed abuse of trust (Untreue)under Article 266 of the Penal Code (Strafgesetzbuch) by havingknowingly misused the authority conferred on him to dispose of theproperty of a third party or to bind a third party and failed in theduty imposed on him and derived from his position of trust to protectthe property interests of a third party, thereby causing damage to theparty concerned. He was alleged to have co-operated with Karl-HeinzWemhoff, arrested on the same day, whose Application No. 2122/64 wasdeclared admissible by the Commission on 2nd July 1964 (1).The warrant of arrest (Haftbefehl) was originally issued on the groundsthat the Applicant, Wilhelm Gericke, might flee the country(Fluchtverdacht) or interfere in the investigation of his case bysuppressing evidence of influencing witnesses (Verdunkelungsgefahr).Later, the warrant was confirmed on the sole ground of suspicion offlight.--------------------------(1) Cf. volume 14, page 29.--------------------------On 28th June 1963, the District Court (Amtsgericht) ofBerlin-Tiergarten decided that the Applicant Wilhelm Gericke should bereleased pending trial on condition that he surrendered his identitypapers to the Office of the Public Prosecutor (Staatsanwaltschaft) ofBerlin and that he registered twice a day with the police.On appeal (Beschwerde) by the Office of the Public Prosecutor, thisdecision was, however, reversed by the Regional Court (Landgericht) ofBerlin on 19th July 1963, and the further appeal of the secondApplicant was dismissed by the Court of Appeal (Kammergericht) ofBerlin on 5th August 1963.On 23rd April 1964 the indictment was lodged with the Regional Court,and on 17th July 1964 the second Applicant, together with Wemhoff andseveral other defendants, was committed for trial (Eröffnung desHauptverfahrens), a new order for his continued detention having beenmade by the Regional Court on 7th July.On 16th October 1964, the Regional Court ruled that the detention ofthe second Applicant should continue. His appeal from this decision wasdismissed by the Court of Appeal on 13th November 1964, the trial(Hauptverhandlung) having opened before the Regional Court on 9thNovember 1964.Pointing out that Wilhelm Gericke has been detained on remand for aperiod of three years, both Applicants allege a violation of Article5, paragraph (3), of the Convention.Proceedings before the CommissionA group of three members of the Commission examined the Application on15th September 1964, and the President of the Commission decided on17th September 1964:1. in accordance with Rule 38 of the Rules of Procedure, to givepriority to the Application;2. in accordance with Rule 45, paragraph (2) of the Rules of Procedure,to give notice of the Application to the Government of the FederalRepublic of Germany and to invite the Government to submit to theCommission within a time-limit of six weeks its observations in writingon the admissibility of the Application.Under cover of a letter dated 28th October 1964, the RespondentGovernment submitted a report of the Attorney-General(Generalstaatsanwalt) at the Regional Court of Berlin of 8th October1964, together with copies of court decisions, and of opinions renderedby the prosecution concerning the detention of the second Applicant.The Government stated that the exceptional ramifications of the caseand the complexity of the facts which had to be investigated might begauged from these documents together with the written accusation(Anklageschrift) of some 850 pages and the six-volume auditor's opinionalready submitted in connection with the Wemhoff Application No.2122/64; these circumstances explained the long duration of thedetention on remand in this particular case as compared with othercriminal proceedings.In the report of the Attorney-General, it was stated that theprosecution and the Court did everything in their power to reduce toa minimum the time between the arrest of the second Applicant and histrial. It was also submitted that a real risk of his escape made hiscontinued detention necessary during that period.On 30th October 1964, the Government's observations of 28th Octoberwere sent to the Applicant, Helga Gericke, who was invited to submither reply on or before 23rd November 1964.Under cover of a letter dated 18th November 1964, the first Applicantsubmitted the following reply on her own behalf and as representativeof her husband:1. As a result of the prolonged detention of the Applicant WilhelmGericke, the Applicant, Helga Gericke, and their two children have beendeprived of support for over three years. The education of thechildren, too, is in danger as the Applicant, Helga Gericke, workingto earn their living, must very often leave the children alone.2. In the name of her husband, the Applicant Helga Gericke protestedagainst the statement of the prosecution and the courts that, becausehe might be sentenced to a long term of imprisonment and would neverbe able to make good the damage inflicted by him on the August ThyssenBank, the Applicant, Wilhelm Gericke, was suspected of intending toescape. That he had no such intention was shown by the fact that, untilhis arrest, he had remained in Berlin where were his wife, children andhis mother. He had also fully co-operated with the prosecution andoffered bail. In the opinion of the Applicants, there is a danger thatan excessive sentence may be imposed in order to justify the durationof detention pending trial.THE LAWI. As to the complaint under Article 5, paragraph (3) (Art. 5-3),of the Convention, made on behalf of the Applicant, Wilhelm Gericke;Whereas Article 5, paragraph (3) (Art. 5-3), provides that everyonearrested or detained in accordance with the provisions of paragraph(1), sub-paragraph (c), of this Article (Art. 5-1-c) "shall be entitledto trial within a reasonable time or to release pending trial"; whereasit is not disputed that the Applicant, Wilhelm Gericke, was arrestedon 9th November 1961 on suspicion of having committed abuse of trust;that he has been detained since that date, his various applications forrelease from custody having been rejected by the competent Courts; andthat his trial was finally opened before the Regional Court on 9thNovember 1964;Whereas the Applicants allege that the detention pending trial of theApplicant, Wilhelm Gericke, during a period of three years, namely,from his arrest on 9th November 1961 until the opening of his trial on9th November 1964, constitutes a violation of Article 5, paragraph (3)(Art. 5-3), of the Convention;Whereas the Respondent Government submits that, in the present case,the duration of the detention on remand is justified in view of thecomplexity of the facts which were to be investigated; that theinvestigation was carried out with the greatest possible expedition;and that the continued detention of the Applicant was necessary inorder to prevent his escape;Whereas the Commission was called upon to examine a similar issue inApplication No. 343/57 (Nielsen v. Denmark) in which the Applicant wasdetained for 29 months pending trial; whereas, although it rejectedthis part of the Application for non-exhaustion of domestic remediesin accordance with Articles 26 and 27, paragraph (3) (Art. 27-3),of the Convention, the Commission, "having regard to the very longperiod of time which elapsed before the Applicant was brought to trialin the present case and to the general circumstances of the case",considered that the Applicant's complaint of an alleged violation ofhis right to trial within a reasonable time, under Article 5, paragraph(3) (Art. 5-3), was not "manifestly ill-founded" within the meaning ofArticle 27, paragraph (2) (Art. 27-2), of the Convention (Yearbook ofthe European Convention on Human Rights, Volume 2, pages 412 [452,454]);Whereas Article 27, paragraph (2) (Art. 27-2), of the Convention, inrequiring the Commission to declare inadmissible any application froman individual which it considers to be "manifestly ill-founded", doesnot permit the Commission to reject a complaint whose lack offoundation cannot be so described (see Applications Numbers 1474/62 and1769/63 - Collection of Decisions of the Commission, Volume 11, pages50 and 59); whereas in the present case the Commission has carried outa preliminary examination of the information and arguments submittedby the Parties regarding the Applicants' complaint that the Applicant,Wilhelm Gericke, was not brought to trial within a reasonable time norreleased from detention pending trial, within the meaning of Article5, paragraph (3) (Art. 5-3), of the Convention; whereas the Commissionfinds that this complaint is of such complexity that its determinationshould depend upon an examination of its merits; whereas it followsthat it cannot be regarded as manifestly ill-founded within the meaningof Article 27, paragraph (2) (Art. 27-2);Whereas, therefore, it cannot be declared inadmissible on the ground(see Application Number 2122/64, Collection of Decisions, Volume 14,page 29);II. As regards the remainder of the Application, namely, in so far asit concerns the complaints made independently by the Applicant HelgaGerickeWhereas the Applicant, Helga Gericke, complains that, as a result ofprolonged detention of her husband, the Applicant Wilhelm Gericke, sheand their two children have been deprived of their main support forover three years; that the education of their children is in danger asshe is working to earn their living and must very often leave themalone; whereas, in respect of these complaints, the Commission findsthat an examination of the file in its present state does not give itthe information required for deciding whether or not this part of theApplication is admissible; whereas, therefore, the Commission decidesto adjourn, pending the examination of the merits of the complaintdealt with under I above, its examination of this remaining part of theApplication;Now, therefore, the Commission:1. Declares admissible, without in any way prejudging its merits, theComplaint under Article 5, paragraph (3) (Art. 5-3), of the Convention,made on behalf of the Applicant, Wilhelm Gericke;2. Adjourns its examination of the remainder of the Application.