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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.[/align]