H.J. v. THE FEDERAL REPUBLIC OF GERMANY - 2604/65 [1967] ECHR 26 (19 December 1967)

[هيثم الفقى]

H.J. v. THE FEDERAL REPUBLIC OF GERMANY - 2604/65 [1967] ECHR 26 (19 December 1967)
THE FACTSA. Whereas the facts presented by the Parties and apparently not indispute between them may be summarised as follows:1. The Applicant is a German citizen, born in 1917 and at presentdetained in prison at Hagen in Westphalia. His Application concerns thelength of his detention pending trial.The Applicant was arrested on 5 May 1961, and has been detained sincethat date. The indictment against him dated 1 December 1965, containsseveral charges of murder committed in 1941/42 while he was serving asa member of the SS in the concentration camp of Gusen, a subsidiary ofthe Mauthausen camp. His trial opened before the Regional Court(Landgericht) of Hagen on 28 August 1967, and is expected to last untilApril 1968.II. The development of the criminal proceedings against the Applicanthas been as follows:1. In 1961 an investigation was opened against him and several otherpersons by the Office of the Public Prosecutor (Staatsanwaltschaft) ofHamburg. This investigation concerned crimes allegedly committed at theconcentration camp of Gusen.2. The Applicant lived in Berlin at the time and, on 4 May 1961, theDistrict Court (Amtsgericht) of Berlin Tiergarten issued a warrant forhis arrest. He was arrested on 5 May 1961, and subsequently detainedin the remand prison of Berlin-Moabit.3. On 19 December 1961, the Hamburg Public Prosecutor's Office came tothe conclusion that, in the Gusen case, the evidence against thesuspected person who was residing in Hamburg was not sufficient and itdecided to discontinue the criminal proceedings against that person.Under the German Code of Criminal Procedure (Strafprozessordnung), theHamburg Office thereby ceased to be competent for the investigationagainst the other suspected persons, including the Applicant, as noneof them was resident within the jurisdiction of the Regional Court ofHamburg.4. On 9 January 1962, the Office of the Public Prosecutor of Hamburgtransmitted the case-file to the Office of the Public Prosecutor ofBerlin, requesting it to continue the investigation on the ground thatthe Applicant was domiciled and resident in Berlin. However, this wasrefused by the Berlin authorities.5. Consideration was then given to having the case dealt with by thePublic Prosecutor's Office of Flensburg, where another suspected personhad his domicile.6. Finally, the Public Prosecutor's Office of Hamburg sought a decisionof the Federal Attorney-General (Generalbundesanwalt)under Article 143, paragraph (3), of the Judicature Act(Gerichtsverfassungsgesetz) which states as follows:"Where the officials of Public Prosecutor's Offices of several LÄndercannot agree on which of them has to persecute, the decision shall betaken by that official of the Public Prosecutor's Office who is theircommon superior, otherwise by the Federal Attorney-General."("Können die Beamten der Staatsanwaltschaft verschiedener Länder sichnicht darüber einigen, wer von ihnen die Verfolgung zu übernehmen hat,so entscheidet der ihnen gemeinsam vorgesetzte Beamte derStaatsanwaltschaft, sonst der Generalbundesanwalt.")On 23 May 1962, the Federal Attorney-General decided that the PublicProsecutor's Office of Berlin should continue the case.7. An appeal by the Applicant against his detention (Haftbeschwerde)was dismissed by the Regional Court of Berlin on 4 July 1962.8. From a survey made by the Public Prosecutor's Office of Berlin on1 August 1962, it appeared that, out of 154 persons originally undersuspicion, 76 had already been eliminated as a result of theinvestigation carried out by the Public Prosecutor's Office of Hamburg,it having been established either that they were dead or that theevidence available would not be sufficient. With regard to othersuspected persons it was found that they were domiciled and residentabroad.9. During the course of its investigation the Berlin PublicProsecutor's Office separated from the remaining issues in the case themain charge against the Applicant and some other persons concerning theso-called "death baths" in the concentration camp of Gusen.10. A new appeal by the Applicant against his continued detention wasrejected by the Regional Court of Berlin on 13 December 1962. Hisfurther appeal (weitere Beschwerde) from this decision was dismissedby the Court of Appeal (Kammergericht) of Berlin on 27 February 1963.11. In May 1963, it was found necessary by the Prosecution to try theApplicant together with other persons who were suspected of having beenhis accomplices in the "death baths" but who were not residing inBerlin. New transfer negotiations took place between the PublicProsecutor's Offices of Berlin, Flensburg and Cologne and, on 2 August1963, the Federal Attorney-General decided that the Cologne officeshould continue the proceedings. The 2 officials who had been in chargeof the case in the Berlin Public Prosecutor's Office were seconded tothe Cologne Public Prosecutor's Office for 2 months in order toinitiate the Prosecutor now dealing with it in the Cologne Office.12. In the Public Prosecutor's Office of Cologne, the proceedingsagainst the Applicant and his alleged accomplices were conducted by the"Central Office in the Land of North Rhine-Westphalia for CriminalProceedings Concerning National Socialist Crimes Involving NumerousVictims in Concentration Camps" (Zentralstelle im LandNordrhein-Westfalen für die Bearbeitung von nationsozialistischenMassenverbrechen in Konzentrationslagern). This Office had been set upunder the Directing Chief Public Prosecutor (LeitenderOberstaatsanwalt) at the Regional Court of Cologne in accordance withArticle 145, paragraph (1), of the Judicature Act which states asfollows:"The chief officials of Public Prosecutor's Offices at Courts of Appealand Regional Courts may themselves discharge the duties of the PublicProsecutor's Office at all courts within their district or delegatesuch duties to another official as the official immediatelyresponsible."("Die ersten Beamten der Staatsanwaltschaft bei den Oberlandesgerichtenund den Landgerichten sind befugt, bei allen Gerichten ihres Bezirksdie Amtsverrichtungen der Staatsanwaltschaft selbst zu übernehmen odermit ihrer Wahrnehmung einen anderen als den zunächst zuständigenBeamten zu beauftragen.")This provision is interpreted as giving corresponding powers to LandMinisters of Justice.In his Order (Runderlass) of 21 October 1961, concerning the CentralOffice in Cologne, the Minister of Justice of North Rhine-Westphaliadefined the object of the Office as follows: "In the interest of morerapid investigation and energetic prosecution of crimes involvingnumerous victims in National Socialist concentration camps, centralisedhandling of the relevant cases in North Rhine-Westphalia by the PublicProsecutor's Office is called for. On 1 November 1961 a central officeto deal with criminal cases in the Land of North Rhine-Westphaliarelating to such crimes will therefore be set up under the DirectingChief Public Prosecutor at the Regional Court of Cologne."13. In April 1965, the Central Office of Cologne terminated itsinvestigation of the "death baths" at Gusen concentration camp, 2suspected accomplices of the Applicant having been arrested in November1964.

[هيثم الفقى]

14. On 10 May 1965, the Applicant was heard by a judge in pursuance of
Article 178 of the Code of Criminal Procedure.

15. In a petition of 13 May 1965, requesting his conditional release,
the Applicant referred to a decision given by the Regional Court of
Cologne on 9 June 1964. In this decision the Court, relying on Article
5, paragraph (3), of the Convention, had ordered the release pending
trial of 2 persons who, for almost 6 years, had been detained on remand
on suspicion of having murdered prisoners, or having aided and abetted
their murder, at the concentration camp of Mauthausen. The Court had
held that detention pending trial "must be brought to an end if its
continuance would break the prisoner's spirit, seriously undermine his
will to defend himself and thus cause appreciable harm to his human
dignity."

The Applicant's above petition was refused by the District Court of
Berlin-Tiergarten on 2 June 1965.

16. On 24 June 1965, the investigation was formally closed by the
Central Office of Cologne in accordance with Article 169 a of the Code
of Criminal Procedure.

17. On 23 July 1965, the Court of Appeal of Berlin ordered the
Applicant's continued detention.

18. At his request, the Applicant was finally heard on 12 October 1965
by the Public Prosecutor of the Cologne Central Office under Article
169 b of the Code of Criminal Procedure.

19. The indictment, a document of some 230 pages, was completed by the
Central Office on 1 December and lodged with the Regional Court of
Hagen in Westphalia on 10 December 1965. In the indictment the
Applicant and 2 further accused were faced with several charges of
murder. It was alleged that, between September 1941 and spring 1942,
they had participated in the "death baths" at Gusen concentration camp
where a great number of people had died after having been forced to
remain under ice-cold shower-baths. The prosecution invoked as
evidence, inter alia, the statements of 68 witnesses in Germany and 43
witnesses in other countries, mainly Poland.

20. On 26 January 1966, the Court of Appeal (Oberlandesgericht) of Hamm
(Westphalia) decided that the Applicant's detention should continue.

21. At the Applicant's request, a preliminary judicial investigation
(gerichtliche Voruntersuchung) was ordered by the Third Great Criminal
Chamber of the Regional Court of Hagen on 23 February and opened by the
investigating judge of the Court on 4 March 1966.

22. A new order for the Applicant's continued detention was made by the
Court of Appeal of Hamm on 5 May 1966.

23. On 27 July 1966, the Regional Court of Hagen rejected the
Applicant's request to separate the criminal proceedings against him
from those against his co-accused. It also ordered his transfer from
Berlin to Hagen.

24. On 12 August 1966, the Court of Appeal of Hamm decided that the
Applicant's detention should continue.

25. On 1 September the Court of Appeal dismissed the Applicant's appeal
(Beschwerde) from the Regional Court's decision of 27 July 1966
(mentioned in paragraph 22 above) and, on 7 September, the Applicant
was transferred in a charter plane from Berlin to Hagen.

26. On 14 March 1967, the Federal Constitutional Court
(Bundesverfassungsgericht) dismissed the Applicant's constitutional
appeal (Verfassungsbeschwerde) from the Court of Appeal's decision of
12 August 1966 (mentioned in paragraph 23 above). Noting that the
Applicant had been detained since 5 May 1961, the Federal
Constitutional Court stated that a detention of this length could be
considered as admissible only in very exceptional circumstances. It
must be an extremely complex and difficult investigation of
particularly serious offences; moreover, it must be shown that the
authorities had done all they could in order to complete the
investigation as soon as possible and to obtain a judgement on the
charges against the detained person.

The Court found that these conditions were satisfied in the Applicant's
case. The length of his detention was not out of all proportion to the
gravity of the alleged offences since he was charged with a number of
crimes which were punishable with life imprisonment. The investigation
had been extremely difficult because the offenses concerned were Nazi
crimes committed more than 20 years ago; most of the witnesses were
either unreliable as being suspected persons themselves or living
abroad and therefore difficult to contact. The alleged offences
involved numerous victims and it was necessary to clarify the whole
historical complex (Gesamtgeschehen) in order to make a proper
assessment of the individuals who had taken part in these actions, the
degree of their participation and their guilt. The Court also found
that there had been no avoidable delay in the investigations and it
concluded that the decision of the Court of Appeal that the Applicant
should remain in detention did not violate the Basic Law (Grundgesetz).

27. On 21 March 1967, the Criminal Chamber of the Regional Court of
Hagen, noting that the preliminary judicial investigation (mentioned
in paragraph 21 above) had been concluded, committed the Applicant for
trial. It also ordered his continued detention.

28. The trial of the Applicant and the 2 co-accused opened before the
Regional Court of Hagen on 28 August 1967. It is expected to last until
April 1968.

B. Whereas the arguments of the Parties may be summarised as follows:

I. As to Article 5, paragraph (3), of the Convention (right to trial
within a reasonable time or to release pending trial).

1. The Applicant submitted that, according to the Commission's constant
jurisprudence, the term "reasonable time" in Article 5, paragraph (3),
of the Convention must be determined in the light of the concrete
circumstances of each case. In the Wemhoff case the Commission had in
its report adopted certain criteria for the evaluation of such
circumstances and, in this connection, special consideration should be
given to the actual length of the detention. The nature of the alleged
offence and the penalty to be expected in the event of conviction could
also be taken into account but, when applying this criterion, it was
necessary to observe the presumption of innocence as guaranteed by
Article 6, paragraph (2) of the Convention. Special regard must be had
to the fate of the individual involved. The reasonableness of a period
of detention on remand could not be determined primarily on the basis
of the requirements of the criminal investigation. Detention pending
trial constituted a "special sacrifice" ("Sonderopfer") which an
individual, whether guilty or not, had to make for the maintenance of
an effective administration of justice. The length of such detention
must not exceed a measure which could reasonably be imposed even on an
innocent person.

[هيثم الفقى]

The Applicant affirmed his innocence. He stated that, since 1945, he
had been living under his real name and been duly registered with the
police. He had not attempted to flee or to conceal his past. His arrest
in 1961 had been premature as was shown by the fact that his co-accused
had not been arrested until 1964. During his detention he had been
anxious to facilitate the work of the investigating authorities and he
had shown that certain evidence against him was perjured.

The Applicant further considered that the transfer of his case from
Hamburg to Berlin, and subsequently from Berlin to North
Rhine-Westphalia, had caused a delay of 2 years in the investigation.
He pointed out that each new Public Prosecutor had to acquaint himself
with the particular conditions in the concentration camps and that this
required extensive studies. He submitted that a considerable delay in
the proceedings could have been avoided if, in 1962, his case had been
transferred directly from Hamburg to North Rhine-Westphalia or if, once
transferred to Berlin, it had remained there.

The Applicant also stated that his very long detention had disrupted
his business life, endangered his family ties and severely affected his
health. In particular, the uncertainty as to his fate constituted a
serious mental strain. The Applicant concluded that his detention
pending trial for over 6 years clearly violated Article 5, paragraph
(3), of the Convention.

2. The Respondent Government stated that the Applicant's arret became
necessary in 1961 after allegations concerning the "death baths" at
Gusen concentration camp had been made against him in public. He might
thus have learned that an investigation concerning these grave charges
was pending against him and that the Public Prosecutor knew his place
of residence. There was, consequently, a danger that he might escape.
It was not necessary, however, at that time to arrest the other accused
since in their case there was no danger of flight. They were not
informed of any investigation being made again at them and it was,
therefore, possible to postpone their arrest until the time when they
had to be heard on the matter personally.

In its decision of 14 March 1967, the Federal Constitutional Court,
having regard to the very exceptional circumstances of the present
case, had found that the length of the Applicant's detention on remand
did not violate the Basic Law. The Government also observed that the
proceedings in the Wemhoff case, which had been mentioned by counsel
for the Applicant, were still pending before the European Court of
Human Rights.

The complexity of the present case and the difficulty of the criminal
investigation were further illustrated by the fact that the death
register of Gusen concentration camp contained the names of over 30,000
persons; that about 150 witnesses, selected from a total of 2,000, had
to be thoroughly examined; and that the scene of the crimes to be
investigated was outside the Federal Republic of Germany.

The Government also considered that the transfer of the Applicant's
case from Hamburg to Berlin, and subsequently from Berlin to North
Rhine-Westphalia, was unavoidable and that, in any case, it had not
caused any substantial delay in the proceedings. Under the federal
organisation of German justice, the lower instances fell within the
jurisdiction of the Länder. It was not possible for cases like the
present one to set up a federal investigating and prosecuting office
with competence for the whole Republic. The territorial competence of
the Cologne Central Office was limited to the Land North
Rhine-Westphalia. It was true that, at the time of the transfer of the
Applicant's case from Hamburg to Berlin, the suspected person residing
in North Rhine-Westphalia, who finally provided the ground for the
jurisdiction of the Cologne Office, was already known to the Public
Prosecutor's Office. However, the investigation of that person's part
in the alleged crimes had not then reached the point where he could
have been charged with any certainty. Thus at that time the
jurisdiction of the Cologne Office could not be established.

After the transfer of the proceedings from Berlin to Cologne in 1963,
the Central Office gave preference to the case and one Public
Prosecutor dealt with it exclusively. The Cologne Office had been set
up for the particular purpose of assuring a speedy investigation of
national socialist crimes committed on concentration camps and it had
extensive special knowledge at its disposal. Furthermore, the 2
officials who had been in charge of the case in the Berlin Public
Prosecutor's Office were seconded to the Cologne Office for a period
of 2 months. Thus the investigation was carried out efficiently and
without interruption. Pointing out that the investigation was
terminated in June 1965, the Government further submitted that the
prolongation of the proceedings from that date until the opening of the
trial on 28 August 1967 was mainly the result of motions introduced by
the Applicant, in particular his request for a preliminary judicial
investigation.

Finally, the Government referred to Resolution 1158 (XLI) of the United
Nations Economic and Social Council on the punishment of war criminals
and of persons who committed crimes against humanity. In this
Resolution, which was adopted on 5 August 1966, States were urged to
continue their efforts to ensure the arrest and punishment of such
criminals and Governments were invited to inform the UN Secretary
General of the measures taken. The Respondent Government also quoted
complaints of the Eastern bloc that the Federal Republic of Germany had
failed in its duty to prosecute Nazi crimes.

The Government concluded that it would welcome a statement by the
Commission as to how Courts and Public Prosecutors in Germany should
solve the special problems of arrest and detention arising in the
prosecution of such crimes.

II. As to Article 3 of the Convention

1. The Applicant submitted that the whole situation complained of
amounted to a violation of Article 3 of the Convention which states
that no one shall be subjected to torture or to inhuman or degrading
treatment or punishment. He did not, however, make any specific
allegation in this respect.

2. The Respondent Government submitted that the length of the
Applicant's detention could not be considered by itself to constitute
a violation of Article 3. It further pointed out that the Applicant
himself did not complain that, during his detention, he had in any way
been subjected to inhuman or degrading treatment.

III. As to Article 6, paragraph (2), of the Convention

1. The Applicant alleged that the whole situation complained of also
amounted to a violation of Article 6, paragraph (2), of the Convention
which provided that everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law. He considered
that this principle must be taken into account in any decision as to
whether a period of detention pending trial is reasonable.

2. The Respondent Government submitted that the Applicant had in no way
been treated as if he had already been proved guilty. In particular,
the duration of his detention could not be regarded as an "advance" on
his possible sentence.

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), sub-paragraph (c), of this Article (Art. 5-1-c)
"shall be entitled to trial within a reasonable time or to release
pending trial";

Whereas it is not disputed that the Applicant was arrested on 5 May
1961, on suspicion of murder, that he has been detained since that
date, his various applications for release from custody having been
rejected by the competent German courts; and that his trial finally
opened before the Regional Court of Hagen on 28 August 1967;

Whereas the Applicant alleged that his detention pending trial for over
6 years constituted a clear violation of Article 5, paragraph (3)
(Art. 5-3), of the Convention;

Whereas the Respondent Government submits that the investigation in the
Applicant's case concerned particularly serious offences; that it was
extremely complex and difficult; and that it was carried out with the
greatest possible expedition;

Whereas, according to the constant jurisprudence of the Commission, the
question whether a period of detention pending trial is "reasonable"
within the meaning of Article 5, paragraph (3) (Art. 5-3), cannot be
decided in abstracto but must be considered in the light of the
particular circumstances of each case; whereas, in this respect, the
Commission refers to Appendix II of its Report in the Wemhoff case;

Whereas the Respondent Government considers that special problems of
arrest and detention arise in the prosecution of Nazi crimes; whereas
the Commission has previously examined a case where crimes against
humanity were involved; whereas, in that case, a person charged with
having participated in mass executions of Jews in 1942 - 43 was
detained pending trial for over 19 months; and whereas, in its decision
on the admissibility of that application, the Commission stated, inter
alia, (Application No 920/60 - X v. Federal Republic of Germany,
Collection of Decisions, Volume 8, pages 46 - 49 [48 - 49]);

"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 conscientious and proper investigation on the
part of the German police exceedingly complicated; whereas such
investigation must necessarily extend over a longer period than might
be considered in an ordinary case to be reasonable within the meaning
of Article 5 (Art. 5) of the Convention;

Whereas it is further to be taken into account that the proceedings
involve other persons than the Applicant as they concern, in general,
the responsibility under present German law of a number of individuals
who had actively participated in the extermination programme initiated
under the Nazi régime against persons of Jewish origin and carried out
by the SS, of which the Applicant was admittedly a member;

Whereas it was required to prepare under unusual and special
circumstances a trial on a large scale in order properly to determine
not only the question of the Applicant's guilt, but also the extent to
which the guilt of others might be taken into account in estimating the
degree of the Applicant's responsibility;

Whereas the crimes imputed to the Applicant formed merely a part of the
large-scale crimes committed by the SS in the German-controlled
territories in Eastern Europe in 1941 - 45; whereas, consequently, the
participation of the Applicant in the mass exterminations at Minsk in
1942 - 43 cannot be properly assessed in isolation but must be seen in
its full perspective, which can only be obtained by a trial involving
all those who participated in the crimes concerned; and whereas, in the
light of all the above exceptional circumstances, the Commission does
not feel called upon to hold that the delay in bringing the Applicant
to trial, although prolonged must be unreasonable;"

Whereas it is true that some of these considerations appear applicable
to the present case; whereas, however, it must not be overlooked that
the period of detention in the above Application was under 20 months
while the present Applicant has been detained pending trial for over
6 years;

Whereas, further, in several previous cases the Commission has admitted
complaints under Article 5, paragraph (3) (Art. 5-3) , of the
Convention where, at the time of its decision on the admissibility the
periods of detention ranged from 19 months to 3 years and were thus
substantially shorter than in the present case (of the cases of
Matznetter, Stögmüller, Neumeister, Wemhoff and Gericke);

Whereas Article 27, paragraph (2) (Art. 27-2), of the Convention, in
requiring the Commission to declare inadmissible any application from
an individual which it considers to be "manifestly ill-founded", does
not permit the Commission to reject a complaint whose lack of
foundation cannot be so described (see Application No 2294/64 - Gericke
v. Federal Republic of Germany, Yearbook of the European Convention on
Human Rights, Volume 7, pages 348, 354); whereas in the present case
the Commission has carried out a preliminary examination of the
information and arguments submitted by the Parties with regard to the
Applicant's complaint under Article 5, paragraph (3) (Art. 5-3), of the
Convention concerning the length of his detention pending trial;
whereas the Commission finds that this complaint is of such complexity
that its determination should depend upon an examination of its merits;
whereas it follows that it cannot be regarded as manifestly ill-founded
within the meaning of Article 27, paragraph (2) (Art. 27-2); whereas,
therefore, it cannot be declared inadmissible on that ground; and
whereas no other ground for declaring the Application inadmissible has
been found;

For these reasons and without any way prejudging the merits of the
case, the Commission declares the Application ADMISSIBLE under Article
5, paragraph (3) (Art. 5-3), of the Convention.