[align=left]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.[/align]