AS TO THE ADMISSIBILITY OF

Application No. 11703/85
by N.D.
against Federal Republic of Germany

        The European Commission of Human Rights sitting in private
on 9 December 1987, the following members being present:

              MM. C.A. NØRGAARD, President
                  S. TRECHSEL
                  G. SPERDUTI
                  E. BUSUTTIL
                  G. JÖRUNDSSON
                  A.S. GÖZÜBÜYÜK
                  A. WEITZEL
                  J.-C. SOYER
                  H.G. SCHERMERS
                  H. DANELIUS
             Mrs.  G.H. THUNE
             Sir  Basil HALL
             MM.  F. MARTINEZ
                  C.L. ROZAKIS
             Mrs.  J. LIDDY

             Mr.  H.C. KRÜGER Secretary to the Commission

        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 8 August 1985
by N.D. against the Federal Republic of Germany and registered
on 21 August 1985 under file N° 11703/85;

        Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;

        Having regard to the observations submitted by the respondent
Government on 4 February 1987;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts of the case, as submitted by the parties, may be
summarised as follows.

        The applicant is a Yugoslav citizen, born in 1949.  He is a
businessman.  When introducing his application the applicant was
detained on remand in a prison in Düsseldorf.  In the meanwhile he has
left the Federal Republic of Germany.  Before the Commission he is
represented by Mr.  Norbert Respondeck, a lawyer practising in
Düsseldorf.

        On 28 December 1981 the Yugoslav national D and the German
national W jointly committed aggravated robbery in a private apartment
in Mülheim-Ruhr.  They robbed cash, jewelry and diamonds to the value
of about 40-50,000 DM.  During the investigations which commenced
immediately after the robbery certain information appeared which
linked the applicant to this robbery.  On 7 July 1983 the Duisburg
Department of Public Prosecution therefore commenced investigations
against the applicant.

        Due to the outcome of the investigations against the
applicant, detention on remand was ordered against him on 17 August
1983 on the basis of a warrant of arrest issued by the District Court
(Amtsgericht) of Mülheim, the reasons being that he was strongly
suspected of being involved in the aggravated robbery and that, in
view of the severity of the sentence to be expected, he might attempt
to flee.  At that time, the applicant was still serving a prison
sentence for incitement to commit arson, pronounced by the Duisburg
Regional Court (Landgericht) on 25 April 1983.  He was expected to be
released on 7 March 1984, having served two thirds of it.  Until then,
the detention on remand and the prison sentence were co-terminus
(Überhaft).

        On 22 December 1983 the applicant made a first request for a
review of his detention pursuant to Section 117, sub-section 1 of the
Code of Criminal Procedure (Strafprozessordnung - StPO).  He submitted
that there was no strong suspicion of his having committed an offence.
However, he withdrew his request at the hearing in the District Court
of Mülheim on 5 January 1984.

        On 24 January 1984 the Duisburg Department of Public
Prosecution brought charges before the Grand Criminal Division of the
Duisburg Regional Court (grosse Strafkammer des Landgerichts Duisburg)
against the above-mentioned W and D for aggravated robbery, bodily
injury and rape, and against the applicant for incitement to
aggravated robbery.  The indictment was served on the applicant on
10 February 1984.

        On 8 March 1984 the 14th Grand Criminal Division of the
Duisburg Regional Court opened proceedings against the applicant and
his co-accused.  At the same time the Court ordered that the detention
on remand should continue for the reasons given in the warrant of
arrest of 17 August 1983.

        Proceedings against the co-accused, W, were separated from
the rest of the complex on 8 March 1984.  Decisive for this step was
the fact that W - at this stage of the investigation - had confessed.
Consequently it was possible to conduct expedited proceedings against
him.  On 12 April 1984 he was sentenced in a judgment of the Duisburg
Regional Court, which has become final and binding, to an aggregate
prison sentence of four years for rape and aggravated robbery.

        On 9 March 1984 the applicant again requested a review of his
detention pursuant to Section 117, sub-section 1 StPO.  There was, he
claimed, no strong suspicion of his having committed an offence and,
in particular, the incriminating statements made by the suspect who
had confessed could not be relied upon.  Moreover, the applicant
maintained that there was no danger of flight since he was expecting
to be deported and had resigned himself to it.  In an order of
20 March 1984 the Duisburg Regional Court rejected the request, making
reference to the warrant of arrest of 17 August 1983 and the indicment
of 24 January 1984.

        On 25 May 1984, the applicant requested his release again.  He
maintained that the requirements for further detention on remand were
not fulfilled.  Furthermore, he requested that his case be separated
from the rest since the remaining investigation had nothing to do with
the charge brought against him.

        The Duisburg Regional Court decided on 29 May 1984 to prolong
the detention.  The Court found that the investigations carried out so
far revealed a justified reason to believe that he had committed the
offence with which he was charged.  Furthermore, the Court found that
there was a reason to believe that the applicant, if released, would
abscond and that a continuing detention would not be disproportionate,
having regard to the punishment to be expected, if convicted.

        On 3 July 1984 the applicant appealed against this decision to
the Court of Appeal (Oberlandesgericht) of Düsseldorf which, however,
upheld the decision on 16 July 1984.

        In the subsequent period, further ex officio reviews of the
applicant's detention were conducted in pursuance of Sections 122 and
117 StPO on 16 August 1984 (Duisburg Regional Court), on 28 September
1984 (Court of Appeal of Düsseldorf), on 3 December 1984 (Duisburg
Regional Court), and on 15 January 1985 (Court of Appeal of
Düsseldorf).   The courts ordered the continuation of the detention on
remand for the reasons already given.

        In the meantime it turned out that the investigative
proceedings against the co-accused D and the applicant, who denied
their parts of the offences, required obtaining evidence from
abroad.  On 12 June 1984 the Duisburg Regional Court, applying the
Judicial Assistance Treaty of 1 October 1971 between the Federal
Republic of Germany and Yugoslavia, made a request to the Yugoslav
authorities for the service of a summons on three witnesses of
Yugoslav nationality living in Yugoslavia.

        On 20 July 1984 the Regional Court of Duisburg fixed the dates
for the main hearing to be held from 4 to 21 February 1985.  The
applicant protested against this arrangement.  He referred to the
allegedly disproportionate length of detention and requested again
that his case be separated from the rest.  The Court, however,
rejected the applicant's protest on 27 August 1984 as being
inadmissible.  The applicant sought no legal redress from this
decision.

        The applicant's trial commenced on 4 February 1985 before the
Duisburg Regional Court.  During the trial the applicant's co-accused
D named nine further witnesses living in Yugoslavia who would confirm
that he, D, had been in Yugoslavia at the time of the offences.  In
order to serve a summons on these witnesses too, in the form of a
request for judicial assistance, the Court adjourned the main hearing
on 13 March 1985.  The new dates for the main hearing were set down
for the period from 9 December 1985 onwards.

        In view of the date set for the second main hearing
involving the applicant, he again submitted, on 18 April 1985, his
request for release from detention.  In addition to his previous
arguments he also pointed out that the reason for the adjournment
of the case had nothing to do with his case.  It would, in his view,
thus be unacceptable to continue the detention.  However, on
14 March 1985 the Duisburg Regional Court nevertheless ordered the
continuation of the detention on remand.  This decision was upheld on
24 April 1985 by the Court of Appeal of Düsseldorf.

        On 19 May 1985 the defence counsel for the applicant brought a
constitutional complaint (Verfassungsbeschwerde) before the Federal
Constitutional Court (Bundesverfassungsgericht) against the decision
of the Court of Appeal of Düsseldorf of 24 April 1985.  He asserted
primarily that the detention on remand was unjustified as there was no
basis for a suspicion of an offence.  The duration of the detention on
remand was, moreover, out of proportion to the offence of which the
applicant was accused and to the sentence to be expected.  The length
of the detention was furthermore attributable to avoidable delays in
the proceedings.  In particular, the applicant's proceedings ought to
have been separated from those of the co-defendants.

        On 28 May 1985 three judges of the Federal Constitutional
Court dismissed the applicant's complaint as it did not offer
sufficient prospects of success.  The judges found that the reasons
given by the Court of Appeal for the continuation of the detention
were tenable and not arbitrary.  No avoidable delays in the
proceedings could be identified.  Nor was there anything to indicate
at that stage that continued detention on remand could be regarded as
disproportionate.

        In the subsequent period further ex officio reviews of the
detention on remand were conducted on 10 July 1985 (Duisburg Regional
Court), on 14 August 1985 (Court of Appeal of Düsseldorf), on 11 and
22 October 1985 (Duisburg Regional Court) and on 26 November 1985
(Court of Appeal of Düsseldorf).

        The courts ordered the continuation of the detention on remand
on the grounds already given.  The applicant did not bring further
complaints before the Federal Constitutional Court.

        On 9 December 1985 the hearing recommenced before the Duisburg
Regional Court.  In the course of this hearing the Yugoslav witnesses
intended to clear the name of the co-accused D.  Their statements,
however, were disproved.  Judgment in the case was pronounced on
8 January 1986.  The co-accused D was convicted of aggravated robbery
and rape, the applicant of incitement to aggravated robbery.  The
applicant received a two-year prison sentence.   Pursuant to Sections
54 and 55 of the German Penal Code (Strafgesetzbuch-StGB) the Court
fixed an aggregate sentence of three years and six months, the
sentence for incitement to arson mentioned above being included.
After deducting the period spent in detention on remand, a residual
sentence of 122 days was left.  Nonetheless, on the day on which
judgment was pronounced, the warrant of arrest was withdrawn and the
applicant released.

        The applicant appealed against the judgment on points of law.
However, on 30 July 1986 the appeal (Revision) was dismissed as
ill-founded by the Federal Court of Justice (Bundesgerichtshof).

        On 3 February 1986 the applicant informed the authorities
that he was returning to Yugoslavia.  On 12 February 1986 detention on
remand on suspicion of tax evasion concerning more than 1,400,000 DM
was ordered against the applicant in the form of a warrant of arrest
issued by the Duisburg Regional Court.  As his place of residence
is unknown, he has been declared a wanted person.



COMPLAINTS

        The applicant complains that his detention on remand was
unlawful since the requirements for such detention were not fulfilled.
He refers in this respect to Article 5 para. 1 (c) of the Convention.
Furthermore, he invokes Article 5 para. 3 of the Convention alleging
that he was not brought to trial within a reasonable time.



PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 8 August 1985 and registered
on 21 August 1985.

        After a preliminary examination by the Rapporteur, the
Commission decided on 13 October 1986 to bring the application to the
notice of the respondent Government and to invite them to submit
written observations on the admissibility and merits of the
application, limited to the question whether the applicant was brought
to trial within a reasonable time.

        After an extension of the time-limit, the Government's
observations were submitted on 4 February 1987.

        The time-limit for the submission of the applicant's
observations in reply expired on 7 April 1987 but no observations were
received.  Neither did the applicant request an extension of the
time-limit.

        The Commission's Secretary's reminders of 24 April and 1 June
1987 remained unanswered.  In reply to the Commission's Secretary's
third reminder of 22 July 1987 the applicant's representative informed
the Commission on behalf of the applicant that he intended to pursue
the application.  This point of view was maintained in the applicant's
representative's letter of 25 August 1987 in which he referred to his
submissions made prior to the registration of the application.  No
other submissions in reply to the observations of the Government have
been received.



SUBMISSIONS OF THE PARTIES

        The Government

        As to the admissibility

        The applicant did, it is true, bring a constitutional
complaint against the detention review order of the Düsseldorf Court
of Appeal of 24 April 1985.  Following this constitutional complaint,
however, he did not continue to exhaust domestic remedies.  Making an
application does not mean that he no longer has to make use of all
possible legal remedies (cf.  Eur.  Court H.R., Matznetter judgment of
10 November 1969, Series A no. 10 p. 33 para. 10).

        The German courts must be given the opportunity of examining
a possible violation of the Convention within the system of legal
remedies they themselves offer and thus, where possible, of avoiding
any such violation, particularly as the Convention is directly
applicable law in the Federal Republic of Germany and the applicant
can complain at any time before the German courts of its violation.

        The applicant did not continue to exhaust domestic remedies
after introducing his application.  He failed to bring another
constitutional complaint before the Federal Constitutional Court
against the decisions of the Düsseldorf Court of Appeal of 14 August
and 26 November 1985 ordering the continuation of detention on remand.
There was, however, good reason to do so.  The applicant cannot argue
here that the remedy in question would have been doomed to failure
right from the start.  On the contrary:  the Federal Constitutional
Court, in its decision of 28 May 1985, explicitly stated that at the
point in time when the decision was taken, there was nothing to
indicate that the continuation of the detention on remand would be
disproportionate.

        This shows that the Federal Constitutional Court was reserving
the right to examine again at a later date the proportionality of the
detention on remand and, if necessary, to arrive at a different
assessment.  This applies all the more as, under Section 117 sub-
section 5 and Section 122 sub-section 4 StPO, there must be a further
review by a court of the detention on remand every 3 months at the
latest.  This means that the applicant ought to have taken recourse to
the Federal Constitutional Court again at the latest on the expiry of
a 3 month period, in other words, after the decision of the Düsseldorf
Court of Appeal of 14 August 1985.  Thus, as regards the detention on
remand from that point in time onwards, he failed to exhaust all
domestic remedies.

        As to the merits

        The relevant date as regards the commencement of the period
spent in detention is not the day of issue of the warrant of arrest -
17 August 1983 - but rather 8 March 1984, the day on which the
applicant's prison sentence for incitement to arson was suspended on
probation and the detention on remand in the present proceedings first
became effective.  Until that point in time, the applicant's detention
was justified by Article 5 para. 1 (a) of the Convention in that the
applicant was serving a prison sentence following the final and
binding judgment of the Duisburg Regional Court of 25 April 1983.  The
detention on remand additionally ordered as a pure formality
(Überhaft) did not constitute any further detriment pursuant to the
regulation of detention on remand set out in Section 119 StPO.  Nor
has he made a concrete submission as to any such additional grievance.
For the period up to 8 March 1984, therefore, there are no grounds for
invoking the protection offered by Article 5 para. 3 of the
Convention.

        The detention on remand ended on 8 January 1986 - the day of
the judgment of the Duisburg Regional Court - with the withdrawal of
the warrant of arrest and the release of the applicant.  The total
duration of the detention on remand was thus 1 year and 10 months.
The last 5 months of this period should not be considered here,
however, due to failure to exhaust all domestic remedies.

        According to the case-law of the European Court of Human
Rights the factors to be examined concerning the question whether the
time spent in detention was reasonable, are

-       whether the grounds for the domestic decisions justify the
continuation of the detention on remand when one takes into account
the opposing grounds of the applicant; and

-       whether the investigation and the criminal proceedings were
conducted without avoidable delays.

        The grounds for the detention orders were the strong suspicion
of the commission of a crime and the danger of flight.  They are set
out in detail in the orders of the Düsseldorf Court of Appeal of
16 July and 28 September 1984, to which reference is also made by the
order of 24 April 1985.

        Directed at the issue of a strong suspicion were firstly and
primarily the objections lodged by the applicant against his
detention.  There was, however, a strong suspicion of his having
committed an offence.  The applicant was incriminated by the
statements of the co-perpetrator W, and a witness, the one largely
corroborating the other.  He was unable to adduce any plausible
reasons as to why they should both want to incriminate him falsely.
The suspicion against him was then finally confirmed by his final and
binding conviction.

        As to the danger of flight, the orders of the Düsseldorf Court
of Appeal rightly pointed out that the applicant had to expect a
sizeable prison sentence, in relation to which the length of the
period spent in detention on remand was not disproportionate.  Robbery
(pursuant to Section 249 StGB), particularly in the form of aggravated
(armed) robbery, is reckoned under German law among the most serious
of crimes and is punished by a term of imprisonment of not less than
5 years, and even in less serious cases pursuant to Section 250
sub-section 2 StGB, by a prison sentence of between 1 and 5 years.
The incitement committed by the applicant is, under Section 25 StGB,
punished on principle in exactly the same way as the offence itself.
Accordingly, for incitement to aggravated robbery, the applicant was
also sentenced to 2 years' imprisonment.

        This penalty, which formed part of an aggregate penalty of 3
years and 6 months, had not been served in its entirety at the time of
his release on 8 January 1986.  It was rather the case that a residual
penalty of 4 months still remained.  Furthermore, at the point in time
when the orders were made concerning the continuation of detention,
and as long as the judgment on the applicant for incitement to robbery
had not been passed, there was every reason to expect that the
applicant would be punished even more severely.  The detention orders
made by the Düsseldorf Court of Appeal are convincingly reasoned as
regards the issue of the seriousness of the crime and the sentence to
be expected, if one takes into account the circumstances which were
then already known and also those which were foreseeable.  This is
true, even if consideration is also given to the fact that the danger
of flight decreases with the length of time already spent in detention
on remand.

        A continuation of detention on remand was also called for by
the applicant's personal circumstances, in particular by the fact that
he is a foreigner.  Given the circumstances as they were, the
applicant had no good reason to expose himself to the risk of even a
small residual penalty:  even if he did have ties with Germany, he
was, on his own admission, still fully expecting to be deported very
quickly, with the result that he had already broken off psychologically
any ties he may still have had.  His determination to throw off any
ties he still had was finally confirmed by his departure from the
Federal Republic of Germany immediately after his release, without
waiting for the result of the appeal on points of law against the
judgment of the Duisburg Regional Court of 8 January 1986.

        In examining the way in which the proceedings were conducted,
the following criteria are the relevant ones according to the case-law
of the European Court of Human Rights:

-       how difficult the proceedings are;

-       the kind of treatment accorded to the case, whereby there is
on the one hand a particular imperative existing, especially in cases
of detention on remand, to deal with the matter as quickly as
possible, and on the other hand, a continuing duty to clear up the
case carefully, in particular in favour of the accused;

-       the applicant's behaviour.

        The difficulty of the present case does not lie in its
complexity, but rather in the fact that a number of witnesses from
abroad had to be heard, requiring their summoning through the
time-consuming process of international judicial assistance.  If their
statements had confirmed the alibi of the co-defendant D, they would
also have made a decisive contribution to clearing the applicant's
name, since his incrimination by the co-perpetrator W would no
longer have been credible.  They were therefore indispensable to the
proceedings.

        The investigation proceedings conducted by the Department of
Public Prosecution lasted approximately 5 months.  In view of the great
number of interrogations to be carried out, visits to certain places
and face-to-face meetings of persons involved, this is not excessive.
Nor was the length here the subject of any complaint by the
applicant.  On the contrary: he withdrew his request for a review of
detention on 5 January 1984.

        There was no delay in the main proceedings either.  It was
not appropriate to sever the applicant's proceedings from the rest of
the complex, as he himself wished, since the alibi witnesses named by
D would indirectly have cleared the applicant's name too, and
therefore needed to be heard as a measure in his favour.  The case of
the co-perpetrator W was of a decisively different nature in this
respect, since he had confessed.  The summoning of witnesses from
Yugoslavia was inevitably time-consuming.  It was necessary here to
prepare the summons, translate the request for the serving of the
summons, and establish the competent Yugoslav authorities.  This
required the use of official channels on both the German and the
Yugoslav side.  Nor should one underestimate the time taken for postal
delivery in Yugoslavia.  Lastly, it was also necessary to arrange an
advance of travel expenses and allow sufficient time such that the
journey to the Federal Republic of Germany might be both possible and
reasonably expected of the Yugoslav witnesses.  Given these
difficulties, the dates set down by the Duisburg Regional Court for
the two main hearings were not unduly late.  A further speeding up of
things was not possible.

        In regard to the applicant's behaviour, it should not be
overlooked that, through his persistent denials, he himself caused the
delay.  Whilst he does enjoy, as an accused person, the uncontested
right to make a denial, he must at the same time be aware of and
accept the consequences of this to a certain degree.  In the present
case, he had at all times in his own hand the possibility of
achieving, through a confession, the immediate severance of his
proceedings from those of the others and a swift judgment.


        The Applicant

        The applicant did not reply to the Government's observations
(cf. PROCEEDINGS BEFORE THE COMMISSION).  The following is a
summary of the applicant's submissions made on 8 August 1985, prior to
the registration of the application.

        As to the admissibility

        The applicant has exhausted the domestic remedies available.
He complained of his detention on remand and of its length to the
Federal Constitutional Court which, however, rejected his complaints
on 28 May 1985.  The application to the Commission was submitted on
8 August 1985 which is within a period of six months.  Accordingly the
requirements under Article 26 of the Convention have been fulfilled.

        As to the merits

        According to Article 5 para. 3 of the Convention, everyone
detained on remand is entitled to a trial within a reasonable time or
to release pending trial.  Moreover, as in the case when a person is
arrested, also the continuing detention requires a reasonable
suspicion under Article 5 para. 1 (c) of the Convention.  It is already
questionable whether the decisions of the courts fulfil this
requirement.  According to the investigations carried out there was no
reasonable suspicion that the applicant had committed the offences with
which he is charged.  In any event a reasonable suspicion which could
justify the continuing detention of the applicant was not at hand.

        The length of detention exceeded what could be considered
reasonable within the meaning of Article 5 para. 3 of the Convention.
The period in question started on the day of the issuing of the arrest
warrant, which was 17 August 1983.  It is true that the applicant at
that time was in prison serving another prison sentence.  However, in
such circumstances a prisoner is subjected to all restrictions which
follow from detention on remand.  Accordingly 17 August 1983 should be
considered as the starting point.

        On 8 August 1985 (date of the present submissions) the
applicant had thus been detained on remand for a period of almost 2
years (the applicant was subsequently released on 8 January 1986).

        Whether this period of time is reasonable cannot be examined
in abstracto.  However, as a considerable burden is placed on a person
in detention on remand while his case is dealt with, it appears that a
period of detention exceeding six months would be in conflict also
with Article 6 para. 2 of the Convention.  It should also be noted
that the respondent State as a general rule considers six months as a
maximum period of detention.  An extension should only be allowed when
special difficulties make this necessary.  An extension would not
violate the Convention as such.  However, in cases of an exceptional
extension the interpretation of Article 5 para. 3 should be very
strict.

        Detention on remand should only be allowed where proportionate
and justified by the general interest.  An important element in this
respect is first of all the objective difficulties of the
investigations.  The applicant was a suspect only due to very
questionable statements by his co-accused.  He had, however, always
denied all charges.  The facts of the case were accordingly clear,
which also follows from the fact that the case of the co-accused W was
separated and determined quickly.

        The applicant's requests for a separation of his case,
however, were refused because he denied all charges and because more
witnesses from Yugoslavia should be heard.  It should be noted in
this respect, however, that these witnesses were called to clarify
the situation of the co-accused D whereas they could not make any
statements as to the alleged complicity of the applicant.

        On the other hand the applicant had constantly requested that
his case should proceed.  He did not in this respect do anything which
could possibly extend the length of the proceedings.  Having regard
therefore to the right to  be presumed innocent he had a right to
demand that his case should be dealt with quickly.  On the other hand
if this is not done and if the delays are caused by the authorities,
then the applicant cannot be expected to accept his detention on
remand.  This is even more obvious in a procedural system like that of
the Federal Republic of Germany where it is possible, by separating a
part of the case, to avoid an unreasonable length of the proceedings.

        As a reason for the continuing detention of the applicant the
risk of absconding has been invoked.  This fear originated from an
anonymous letter in which this was indicated.  However, no attempts to
escape have been made, and from anonymous letters it will not be
possible to establish any reasons which could justify the detention on
remand.  Furthermore, a risk of absconding has been assumed due to the
fact that the applicant is a foreigner and that the punishment to be
expected, if convicted, would be considerable.  The applicant,
however, has lived in the Federal Republic of Germany since 1972 where
he cohabited with a woman by whom he has a child.  As regards the
expected punishment, it should be considered that the time spent in
detention is counted towards the actual sentence and the reason to
abscond therefore becomes less as time passes.  The applicant saw no
reason to abscond due to any possible prison sentence, since the time
he had already spent in detention would more or less outweigh it.

        Furthermore it was possible to use less strict measures than
detention on remand in order to prevent his escape.  This, however,
has not been explored.

        In these circumstances, the applicant is of the opinion that
his right to a trial within a reasonable time has not been respected,
in particular due to the fact that the competent authority has
failed to proceed with the case with reasonable speed.



THE LAW

1.      The applicant has first complained that his detention was unjustified.
The Commission has considered this complaint under Article 5 (Art. 5) of the
Convention which secures everyone's rights to liberty and security of person
and which allows a deprivation of liberty only in accordance with a procedure
prescribed by law in the cases enumerated in paragraph 1 of this Article.
These include inter alia the lawful detention of a person after conviction by a
competent court (sub-paragraph a), and the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an offence or fleeing
after having done so (sub-paragaraph c).

        The applicant's detention prior to the issuing of the arrest
warrant on 17 August 1983 was based on his conviction of incitement
to arson by the Duisburg Regional Court on 25 April 1983.  His
detention on this basis ended on 7 March 1984 when he had served two
thirds of his sentence.

        The applicant has not complained of this title for his
detention, and a complaint in this respect would in any event be
inadmissible due to the six months rule in Article 26 (Art. 26) of the
Convention as the applicant lodged his present application with
the Commission only on 8 August 1985, that is, more than six months
after the end of the above period of detention.  The Commission
accepts that his deprivation of liberty during this period was covered
by the terms of Article 5 para. 1 sub-para. a (Art. 5-1-a).

        There remains the question of justification of the applicant's
subsequent detention which was based on the warrant of arrest of
17 August 1983 and which was upheld throughout the various stages of
the proceedings by numerous decisions by the courts, including the
Federal Constitutional Court, until the applicant's release on
8 January 1986.

        The Commission has considered this complaint under Article 5
para. 1, sub-para. c (Art. 5-1-c) of the Convention but it has found nothing
suggesting that the applicant's detention could not have been
justified under this provision.  The Commission therefore concludes
that the applicant's complaints regarding the justification of his detention,
insofar as they can be considered under Article 5 para. 1 (Art. 5-1), are
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.

2.      The applicant has furthermore complained of the length of his detention
and has in this respect referred to Article 5 para. 3 (Art. 5-3) of the
Convention which reads:

   ...

"3.      Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article 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.
Release may be conditioned by guarantees to appear for
trial. "

   ...

        As regards the period of time, the applicant has maintained
that the starting point should be 17 August 1983 - the day of the
issuing of the arrest warrant.  He was also serving prison sentence
until 7 March 1984 but detention on remand is stricter than detention
whilst serving a prison sentence and he was affected by that.

        The Commission notes in this respect that the applicant has not
submitted any information as to what extent restrictions were placed
on him due to the arrest warrant of 17 August 1983.  Furthermore the
Commission recalls that insofar as restrictions are imposed on a
person already deprived of his liberty, they do not require additional
justification under Article 5 para. 1 (Art. 5-1) of the Convention (cf.
7754/77, Dec. 9.5.77, D.R. 11 p. 216).

        Article 5 para. 3 (Art. 5-3) of the Convention guarantees to everyone
detained under Article 5 para. 1 sub-para. c (Art. 5-1-c) the right to trial
within a reasonable time.  The provision is accordingly only applicable as long
as the applicant's detention is exclusively based on Article 5 para. 1
sub-para. c (Art. 5-1-c).  The Commission recalls that the applicant was
serving a prison sentence when the arrest warrant was issued and this ended on
7 March 1984.  Therefore Article 5 para. 3 (Art. 5-3) does not apply to the
applicant's detention prior to that date as it was not effectively based on the
arrest warrant but covered by the judgment of the Duisburg Regional Court
pronounced on 25 April 1983.  The Commission therefore finds that the starting
point of the applicant's detention on remand, to be considered under Article 5
para. 3 (Art. 5-3) of the Convention, is 8 March 1984.  However, to establish
what time can still be considered as reasonable, it should be taken into
account that the investigation could also take place during the detention based
on Article 5 para. 1 (a) (Art. 5-1-a).

        The applicant's detention on remand ended on 8 January 1986
when he was released from prison.  The respondent Government have,
however, submitted that the time spent in detention on remand after
14 August 1985 should not be taken into consideration since the
applicant did not, in regard to this period, exhaust the domestic
remedies available to him.

        As regards the period after 14 August 1985 and until he was
released on 8 January 1986, it is true that the applicant did not
submit further complaints to the Federal Constitutional Court.
However, the Commission recalls that the applicant had on several
occasions appealed against the decisions as to his continuing
detention and, after 13 March 1985 when the dates for the
continuation of the main hearing had been announced, protested against
these dates.  When the Federal Constitutional Court thus rejected the
applicant's complaint concerning the length of the detention on 28 May
1985 it was an ascertainable fact that the applicant's trial would not
recommence until 9 December 1985.  In these circumstances the
Commission finds that the applicant was not required to continue
constantly to bring this question before the Federal Constitutional
Court.  The Commission therefore considers that also the period from
14 August 1985 to 8 January 1986 is sufficiently covered by his
complaint to the Federal Constitutional Court and its decision of
28 May 1985.  Therefore the Commission finds that it may proceed to
examine the applicant's complaint covering the period until
8 January 1986.

        It follows from the above considerations that the applicant's
detention, to be considered under Article 5 para. 3 (Art. 5-3) of the
Convention, lasted from 8 March 1984 until 8 January 1986;  that is a total of
1 year and 10 months.

        The Commission and the European Court of Human Rights have on
several occasions been called upon to interpret the above provision
(e.g.  Eur.  Court H.R., Wemhoff judgment of 27 June 1968, Series A
no. 7; Neumeister judgment of 27 June 1968, Series A no. 8; Stögmüller
judgment of 10 November 1969, Series A no. 9; Matznetter judgment of
10 November 1969, Series A no. 10; Bonnechaux v.  Switzerland, Comm.
Report 5.12.79, D.R. 18 p. 100 and Schertenleib v.  Switzerland, Comm.
Report 11.12.80, D.R. 23 p. 137).

        In the light of the case-law mentioned above, the Commission
points out in the first place that, in determining in a given case
whether or not the detention of an accused person exceeds a reasonable
limit, it is for the national judicial authorities to seek all the
facts arguing for or against the existence of a genuine requirement of
public interest justifying a departure from the rule of respect for
individual liberty.  The reasonableness of the duration of detention
pending trial can thus not be judged in the abstract and it is
essentially on the basis of the reasons given in the decisions on
applications for release pending trial that the question whether or
not there has been a violation of the Convention has to be determined.

        Furthermore, even if the grounds relating to the public
interest cited by the national judicial authorities are pertinent and
sufficient to justify keeping a person in detention pending trial,
that does not free the authorities from their obligations under the
Convention if they themselves are seen to have prolonged the detention
unreasonably.

        In the present case the Commission recalls that the judicial
authorities, in addition to the suspicion of his having committed an
offence, relied mainly on the risk of absconding when justifying the
continuing detention of the applicant.

        In this respect the Commission refers to the above case-law
according to which it is necessary to examine a whole set of
circumstances - in particular the expectation of a heavy sentence in
the case of conviction or the lack of well-established ties in the
country, giving reason to suppose that the consequences and hazards of
absconding will seem to him a lesser evil than continued imprisonment
- in order to determine whether in a given case there is a risk of a
person absconding.

        In this case the Commission recalls that the applicant is a
foreigner.  Although he had certain ties with the Federal Republic of
Germany, he did not expect that he could remain there after having
served his sentence and he had resigned himself to this.  Furthermore,
according to the prosecution's case, the applicant's alleged offence
made him liable to a severe sentence of imprisonment under the German
Penal Code.  It is hardly possible in such circumstances to rule out
the risk that a person will abscond.  In view of the various
considerations set out above the Commission is satisfied that the
judicial authorities had sufficient reason to fear that the applicant,
once at large, would escape in order to evade justice.

        It thus remains to be examined whether the German authorities
displayed the special diligence required by the Convention in the case
of a detained person.

        The Commission recalls that the proceedings against the
applicant and the co-accused opened on 8 March 1984, which is also the
starting point of the period to be taken into consideration under
Article 5 para. 3 (Art. 5-3) of the Convention.  It turned out that it would be
necessary to summon witnesses from abroad for which reason appropriate
requests were made on 12 June 1984.  The trial commenced on 4 February
1985 but was adjourned in March 1985 in order to summon further
witnesses from abroad.  Having done this, the Regional Court recommenced
the trial in December 1985 and gave judgment on 8 January 1986.

        The Commission acknowledges that, in any criminal case, time
must be allowed for all the routine work that the authorities carry
out and which the documents only reflect indirectly.  The Commission
has noted, however, that the applicant's trial did not start until 11
months after the proceedings opened in the Duisburg Regional Court.
The Commission has furthermore noted that approximately 9 months
passed from the day the trial was adjourned in March until it
recommenced in December 1985.

        The respondent Government have submitted that these delays
were not caused by the complexity of the case but rather by the fact
that a number of witnesses from abroad had to be heard, requiring
their summoning through a time-consuming process of international
judicial assistance.  It was necessary to prepare summonses, translate
the request for the serving of the summons and establish the competent
Yugoslav authorities through official channels.  It was also necessary
to arrange an advance of travel expenses and allow sufficient time in
order to enable the witnesses to appear.

        The applicant has not disputed these facts nor has he
maintained that the time spent for this purpose was excessive as
such.  He alleges, however, that the statements of the witnesses in
question were irrelevant in regard to his alleged acts for which
reason his case could and should have been separated and finished
quickly.

        In this respect the respondent Government have submitted that
it would not have been appropriate to separate the applicant's case
from that of the co-accused since the statements of the witnesses to
be heard would also be material to the outcome of the case brought
against the applicant.

        The Commission finds that a concern for speed cannot dispense
the authorities responsible for the investigation or the conduct of
the trial from taking every measure likely to throw light on the truth
or falsehood of the charges brought against the accused.  This is a
basic element of a fair trial which is secured to everyone under
Article 6 (Art. 6) of the Convention.  The Commission recalls that the
applicant's request to separate his case from that of the co-accused
was examined by the competent authorities.  It was, however, refused
since the statements of the witnessses to be heard were considered of
importance for the outcome also of the applicant's case.  It is
impossible to judge in advance whether such evidence subsequently
turns out to be of little or no value in the case against the accused.
However, although the applicant's case might have been accelerated had
it been severed from that of his co-accused, there is nothing to
suggest to the Commission that such severance would here have been
compatible with the good administration of justice.  It follows that
the Commission cannot criticise the particular decision taken in this
respect.

        As regards the question of hearing witnesses from abroad, the
Commission is disturbed by the delays this caused.  However, the
Commission finds that those delays cannot be imputed to any action or
omission on the part of the German authority, but are the consequence
of a system of mutual assistance as it operates in many countries and
under which the requesting State is dependent on the co-operation of
the State to whom the request has been sent.  The delays which occurred
should therefore be considered as a part of a recognised system which
unfortunately is time-consuming and thus, at least on the basis of the
facts submitted by the parties, as unavoidable.

        In these circumstances the Commission concludes that the
period of the applicant's detention did not exceed what can be
considered reasonable within the meaning of Article 5 para. 3 (Art. 5-3) of the
Convention.  It follows that this part of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.


Secretary to the Commission         President of the Commission



       (H.C. KRÜGER)                       (C.A. NØRGAARD)