AS TO THE ADMISSIBILITY OF Application No. 11755/85 by Walter STOCKE against the Federal Republic of Germany The European Commission of Human Rights sitting in private on 9 July 1987, the following members being present: MM. C.A. NØRGAARD, President G. SPERDUTI J.A. FROWEIN F. ERMACORA E. BUSUTTIL G. JÖRUNDSSON A. WEITZEL J.C. SOYER H. DANELIUS G. BATLINER H. VANDENBERGHE Mrs. G.H. THUNE Sir Basil HALL Mr. F. MARTINEZ Mr. 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 20 September 1985 by Walter STOCKE against the Federal Republic of Germany and registered on 23 September 1985 under file No. 11755/85; Having regard to: - the first report of March 1986 provided for in Rule 40 of the Rules of Procedure of the Commission; - the Commission's decision of 9 May 1986 to bring the application to the notice of the respondent Government and invite them to submit written observations on its admissibility and merits; - the observations submitted by the respondent Government on 21 July 1986 and the observations in reply submitted by the applicant on 14 October 1986; - the second report of November 1986 provided for in Rule 40 of the Commission's Rules of Procedure; - the Commission's decision of 4 March 1987 to invite the parties to a hearing on the admissibility and merits of the application; - the submissions made by the parties at the hearing on 9 July 1987; Having deliberated; Decides as follows: THE FACTS The facts, which do not appear to be in dispute between the parties, may be summarised as follows: The applicant is a German citizen, born in 1926. When lodging his application with the Commission, he was detained in prison at Saarbrücken. Before the Commission he is represented by Mr. T. Vogler, a law professor at Giessen. In June 1975, subsequent to the bankruptcy of his construction firm, criminal investigations were instituted against the applicant on the suspicion of fraud and fraudulent conversion. In July 1975 investigations were also started on the suspicion that the applicant had committed tax offences. On 25 March 1976 the Ludwigshafen District Court (Amtsgericht), in the latter proceedings concerning tax offences, issued a warrant of arrest against the applicant. From 26 March until 9 July 1976 he was in detention on remand. The execution of the warrant of arrest was then suspended. As the applicant did not respect the conditions under which he had been released the execution of the warrant of arrest was again ordered in November 1976. To avoid his arrest the applicant absconded abroad. He later lived in Strasbourg, France. In October 1978 the applicant was informed by his former colleague Mr. W that a certain Mr. K who, according to the applicant, collaborated from the very beginning with the German authorities was organising a project to build a hotel in Spain. Subsequently there was a meeting in Luxembourg between the applicant and K as well as further persons supposed to participate in the project. Two weeks later, a meeting was arranged for 7 November 1978 in Strasbourg to conduct negotiations with an interested party. However, on 7 November 1978 the latter had not come to Strasbourg. K stated that the person concerned was in Luxembourg and that a private aeroplane was ready to fly there. The applicant, together with K, boarded the aeroplane, which belonged to a charter company, had German registration plates and was piloted by M and ME. At 19.50 hours the aeroplane made a stop-over at Saarbrücken- Ensheim airport. The pilots indicated that the air extraction duct of the engine had become covered with ice. Air traffic control in Saarbrücken had been informed and had therefore alerted the fire brigade at the airport. The applicant was arrested by the Saarbrücken Police, which assisted the Kaiserslautern Police, at the airport on the basis of the arrest of warrant issued by the Ludwigshafen District Court in March 1976. The applicant was then detained on remand. On 2 April 1979 the Kaiserslautern Public Prosecutor's Office (Staatsanwaltschaft) preferred the indictment against the applicant. On 15 May 1979 the applicant laid information against K for deprivation of liberty and subsequently also against several policemen and unknown persons. The Zweibrücken Public Prosecutor's Office instituted preliminary investigations against K, the pilots M and ME as well as the policemen involved in the applicant's arrest. On 24 September 1979 the Prosecutor's Office decided to discontinue the investigation proceedings. The facts alleged by the applicant were not considered to constitute a deprivation of liberty. On 25 October 1979 the applicant's trial opened before the Kaiserslautern Regional Court (Landgericht). In September, October and November 1979 the public prosecutors from the Kaiserslautern Public Prosecutor's Office all declared in official statements that they had only learned of the applicant's return from France on 8 November 1978 after the applicant had already been taken into custody on remand. In official statements dated October 1979 the police officers from the Ludwigshafen Police declared that the Kaiserslautern Police had requested their assistance to arrest the applicant on the morning of 7 November 1979 and that the police officer Kl had, on request, declared to act in accordance with the competent Public Prosecutor's Office. On 5 February 1980 the Zweibrücken Court of Appeal (Oberlandes- gericht), upon the applicant's appeal concerning the decision of 24 September 1979 to discontinue investigation proceedings, ordered the Zweibrücken Director of Public Prosecutions (Generalstaatsanwalt) to investigate the matter further. In February and March 1981 the police officers Kl, H and KE were heard on the charges against them. They all refused to give evidence. On 17 March 1981 the Kaiserslautern Regional Court, in the criminal proceedings against the applicant, ordered his continued detention on remand. The applicant's appeal was dismissed by the Zweibrücken Court of Appeal on 16 April 1981. The applicant lodged a constitutional complaint (Verfassungsbeschwerde) relating to his continued detention on remand and to the pending criminal proceedings against him. He submitted that the German police had unlawfully brought him from France to the Federal Republic of Germany and that this barred his prosecution. On 26 August 1981 the Federal Constitutional Court (Bundesverfassungsgericht) refused to admit the applicant's constitutional complaint on the ground that it offered no prospect of success. The Court found in particular that the applicant could only complain of the trial after a final decision had been taken in these criminal proceedings. As regards the applicant's complaint of his continued detention on remand the Court observed that the applicant's allegations concerning his return from France to the Federal Republic of Germany had not yet been examined by the trial court. On 23 September 1981 the Zweibrücken Director of Public Prosecution dismissed the applicant's further request of May 1981 to proceed against several public prosecutors and police officers involved in his return from France. The Director assumed from the concurring statements of the public prosecutors concerned that these persons were not aware of any intention to abduct the applicant from abroad to Germany by aeroplane. He found no reason to doubt the correctness of these official statements. On 4 February 1982 the applicant was convicted by the Kaiserslautern Regional Court of fraud in two cases one of which concomitant with incitement to breach of trust, and of tax evasion (Steuerhinterziehung) in three cases, each concomitant with a violation of the statutory obligation to keep books (Buchführungs- pflicht). He was sentenced to six years' imprisonment. The judgment, comprising 399 pages, states, inter alia, that contrary to the applicant's arguments the prosecution was not barred by the alleged fact that the applicant was lured to the Federal Republic by a police conspiracy. It is pointed out that the applicant was arrested on the territory of the Federal Republic on the authority of a valid and lawful warrant of arrest. In so far as the applicant had been lured into the Federal Republic this "private kidnapping" (private Entführung) did not render his arrest unlawful as the subsequent approval by the authorities of such kidnapping was not an unlawful act contrary to principles of international law. The Court further pointed out that contrary to the applicant's allegations the Public Prosecutor's Office in Kaiserslautern had, according to official statements (dienstliche Erklärungen) made by its Director, its Head of Division and the Prosecutor dealing with the case, neither instigated the alleged kidnapping nor known of it. The Court added that it did not consider it necessary to investigate the matter further because even assuming the applicant's allegation was true that K had acted under the instruction of the German police authorities and had carried out the kidnapping with their support this would not affect the jurisdiction of the German court. If the French-German extradition treaty or French territorial sovereignty had been violated, this was a matter of international law affecting the rights of a State but not the rights of the individual concerned. It would have been the right of France to protest against the alleged violation and to request reparation for it. However, France had not done so. On the contrary the Strasbourg Public Prosecutor (procureur de la République) discontinued proceedings instituted at the applicant's request (Anzeige) stating that no punishable act had been committed on French territory (... das Vorliegen einer strafbaren Handlung auf französischem Boden verneint und die Anzeige zu den Akten gelegt). On the same day the applicant was released from detention on remand. On 10 November 1982 the Zweibrücken Public Prosecutor's Office preferred an indictment against the two pilots, M and ME, as well as against three police officers - Kl, H and KE - for the offence of being an accessory to unlawful deprivation of liberty. The criminal proceedings against K, who was already under investigation concerning several offences of fraud, were provisionally discontinued on the ground that K had gone abroad and the Austrian Federal Ministry of Justice, in a letter of 12 August 1982, had refused extradition in this respect. K was in detention on remand from August 1982 until July 1983. The warrant of arrest was then suspended and, inter alia, a duty of reporting imposed. However, K disappeared. An international warrant of arrest was issued in connection with the proceedings concerning the charges of fraud. On 26 July 1983 the Frankenthal Regional Court decided not to open main proceedings against the five accused, M, ME, KI, H and KE, on the ground that there was no sufficient suspicion. The respective complaints of the Public Prosecutor's Office and the applicant were dismissed by the Zweibrücken Court of Appeal on 6 April 1984. The Court found that the pilots would have to be acquitted because their defence that they were not aware of K's plan could not be refuted. It further stated that any suspicion that the accused police officers might have committed an offence was not sufficient for a conviction. The Court considered that the witness Ku who had alleged that there had been collaboration between K and the police in order to arrange the applicant's return from abroad was not credible. It assumed that Ku, who had himself been a police informer, wanted to take his revenge. In the circumstances of the case it was possible that the three officers had been informed by K that the applicant would be landing at Saarbrücken airport on 7 November 1978 and could be apprehended there. However, it could not be shown that they knew that the applicant was to be tricked into boarding the aeroplane and thus be trapped and brought to Saarbrücken airport against his will. On 25 July 1984 the Federal Court of Justice (Bundesgerichtshof), in proceedings concerning the applicant's appeal on points of law (Revision) against the Regional Court's judgment of 4 February 1982, had the witness Ku again examined with regard to the applicant's allegation that his return to the Federal Republic of Germany was performed by a police conspiracy. On 2 August 1984 the Court rejected the applicant's appeal on points of law. It found in particular that the applicant's allegation that he had been kidnapped on French territory did not bar his criminal prosecution in the Federal Republic of Germany. The Court first pointed out that the applicant did not belong to the circle of persons enjoying immunity. The jurisdiction of German courts would only have been put in question had the French Republic requested reparation for an alleged violation of its territorial sovereignty or for an alleged violation of the French-German extradition treaty. However, although the competent French authorities had been informed about the applicant's allegations by his counsel no such requests had been formulated. On 17 July 1985 a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) rejected as offering no prospects of success the applicant's constitutional complaint against the aforementioned decisions by the criminal courts. In its decision the Constitutional Court stated inter alia that there existed no general rule in international law according to which prosecution of a person was barred in a State to whose territory the person concerned had been taken in violation of the territorial sovereignty of another State. Citing international case law (namely: U.S. Court of Appeal, 8.1.75, U.S. ex rel Lujan v. Gengler, AJIL 69 <1975>, p. 895 et seq.; Jerusalem District Court, 15.12.61, Eichmann case, ILR 36 <1968>, p. 57 et seq.; U.S. Supreme Court, Ker v. Illinois, 119 US 436 <1886>) the Constitutional Court stated that according to international practice courts would in general only refuse to assume jurisdiction in case of a kidnapped accused if another State had protested against the kidnapping and had requested the return of the accused. Even though there also existed decisions expressing the opinion that the kidnapping of an accused could bar prosecution in the State the kidnapped person has been taken to there was no established practice of the like in international law. Furthermore there existed no general rule in international law according to which prosecution of a person was barred because that person had been taken to the prosecuting State in violation of an extradition treaty with another State. The Federal Constitutional Court further stated that although the applicant had unsuccessfully laid charges of kidnapping the Federal Court nevertheless had also dealt with and correctly denied that prosecution against the applicant had to be considered barred on the assumption that his kidnapping involved the criminal responsibility of German public officials. So far a bar to prosecution had been considered only in cases of inordinate length of proceedings and of incitement by an agent provocateur to commit an offence. Even if kidnapping was likewise to be considered as a possible bar to prosecution this could be assumed only in exceptional cases but not in the applicant's case. Even assuming that the applicant had been taken to the Federal Republic by subterfuge and not by physical force. He had been arrested by the German police on German and not foreign territory. His arrest had been based on a lawful and valid warrant of arrest. Any involvement of public officials in the alleged kidnapping related, according to the findings of the Public Prosecutor, only to unauthorised activities of lower police officers not involving responsibility of superior authorities. In these circumstances there was nothing which would have barred the proceedings against the applicant. Finally the Constitutional Court pointed out that the applicant had had no reason to trust that in France he was safe from prosecution in the Federal Republic because his extradition was, despite the fact that the main charges against him were of tax law character, not excluded from the beginning. The applicant served the remaining part of two thirds of his sentence of imprisonment from 10 June to 6 December 1985, the further third was suspended on probation. COMPLAINTS The applicant considers that, in view of the manner in which he was brought from France to the Federal Republic of Germany, his arrest and subsequent imprisonment constituted unlawful arrest and detention in breach of Article 5 para. 1 of the Convention. Furthermore he complains under Article 6 para. 1 of the Convention that the trial against him was unfair on the ground that the German courts did not consider his kidnapping as a bar to his prosecution and conviction in the Federal Republic of Germany. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 20 September 1985 and registered on 23 September 1985. On 9 May 1986 the Commission decided to invite the respondent Government to present observations on the admissibility and merits of the application. The Government's observations dated 21 July 1986 were received on 24 July 1986. The applicant submitted his reply, after an extension of the time-limit, on 9 October 1986. On 4 March 1987 the Commission decided to invite the parties to a hearing on the admissibility and merits of the application. At the hearing which was held on 9 July 1987 the parties were represented as follows: The respondent Government Mrs. Irene Maier Ministerialdirigentin, Federal Ministry of Justice, Agent Mr. Heinrich Gauf Generalstaatsanwalt, Directorate of Public Prosecutions of Zweibrücken, Adviser Mr. Jens Meyer-Ladewig Ministerialrat, Federal Ministry of Justice, Adviser The Applicant Mr. Theo Vogler Professor, Counsel The applicant was also present. SUBMISSIONS OF THE PARTIES A. The respondent Government I. As to the facts The respondent Government submit that after the applicant absconded abroad the competent German authorities did not know his whereabouts. On 3 November 1977 the Kaiserslautern Public Prosecutor's Office asked the Federal Office for Criminal Investigations (Bundeskriminalamt) for an international search. The Prosecutor's Office submitted that the applicant was presumably in Switzerland and occasionally in France. Having regard to the relevant laws on extradition the international search should be limited to France. The Government observe that, according to the Extradition Treaty between the Federal Republic of Germany and France, extradition of a person charged with tax offences is possible insofar as the Governments agree in the case concerned. On 27 October 1978 the Kaiserslautern Public Prosecutor's Office renewed its request for an international search. The Government maintain that it is doubtful and, in any case, not proved that officers of the Ludwigshafen Police or public prosecutors were involved in K's plan and the action taken to bring the applicant back to the Federal Republic of Germany. The Ludwigshafen Police had only on the morning of 7 November 1978 received a telephone call from K that the applicant would arrive in Saarbrücken during the day. They were not informed about how and from where the applicant would come. In a second telephone call K informed the police that the applicant could be found in the evening at the Saarbrücken airport. The police officers Kl, H and KE then asked the Saarbrücken Police for assistance and went to Saarbrücken to participate in the arrest. The Ludwigshafen Public Prosecutor's Office was only informed about the applicant's arrest on the morning of 8 November 1978. II. As to Article 26 of the Convention (six months' rule) In the Government's view the applicant's complaint that his arrest on 7 November 1978 violated Article 5 para. 1 (c) of the Convention is inadmissible because it was submitted out of time. The applicant should have submitted this complaint within the six months' time-limit under Article 26 - running from the date of the decision by which his custody complaint was dismissed. The Government consider that, although in fact the question of the applicant's abduction was of relevance in the further criminal proceedings on the merits, he could, during his detention on remand, not be sure that the issue would be dealt with in the later proceedings. The Government furthermore contend that even if in view of the continuing effect of this arrest the release from custody on remand on 4 February 1982 is considered as relevant for the time-limit (No. 8130/78, Eckle v. the Federal Republic of Germany, Dec. 10.5.79, section V 3) the complaint contained in the application of 20 September 1985 was introduced out of time. III. As to Article 5 para. 1 of the Convention The Government contend that the applicant was lawfully arrested and detained in conformity with Article 5 para. 1 (c) of the Convention. The applicant was arrested by German police officers on German territory on the basis of a valid judicial warrant of arrest "for the purpose of bringing him before the competent legal authority" because there was "reasonable suspicion" that he had committed an "offence". This suspicion was corroborated by his conviction. Furthermore the detention was justified on the ground that the applicant had to be prevented from fleeing abroad again. The applicant's arrest and detention was also "lawful" and "in accordance with a procedure prescribed by law" within the meaning of Article 5 para. 1 of the Convention. The lawfulness of the arrest was not affected by the facts alleged by the applicant, namely the "abduction" organised on behalf of, or in collaboration with, the police, as these allegations have not been proved during the domestic investigations conducted against persons accused of unlawful deprivation of liberty. The Government consider that the Commission is bound to follow these findings. The principle of presumption of innocence would be violated if the applicant's allegations were to be held against those involved in the supposed "abduction" without their guilt being established according to the law. The Government further submit that even if the alleged abduction had taken place both the conduct of criminal proceedings against the applicant and his detention were lawful. Under German law criminal proceedings are permissible against a person who has been abducted to the Federal Republic of Germany contrary to international law provided that the foreign State whose sovereign rights have been violated does not demand that the person abducted be returned to that State. The Government refer to the Commission's case-law according to which the question of the "lawfulness" of detention under Article 5 para. 1 of the Convention is not determined solely and definitively in terms of domestic law. On the contrary, a certain supervisory function remains with the organs of the Convention to the extent that they examine whether or not domestic law has been applied in an arbitrary manner (No. 10689/83, Dec. 4.7.84) or whether the criteria applied by the domestic courts in assessing the lawfulness were in conformity with the basic principles of the Convention law (No. 10893/84, Dec. 2.12.85). The Government point out that the German law was not arbitrarily applied in the present case. The legal view that criminal proceedings could be conducted against a person abducted from abroad contrary to international law was supported by the Kaiserslautern Regional Court, the Federal Court of Justice and the Federal Constitutional Court with convincing reasons. It follows in particular from the decision of the Federal Constitutional Court that the view taken by the German courts also corresponds to international standards according to which extradition treaties do not entail individual rights. It is true that there are isolated judgments and scholarly opinions that deny the abducting state - in a case where there has been an abduction contrary to international law - the right to conduct criminal proceedings against the person who has been abducted. However, this practice is not sufficiently widespread to be considered either as an established international practice restricting State jurisdiction or as a rule requiring the termination of criminal proceedings against a person abducted in a manner contrary to international law. Moreover the special guarantees of the Convention concerning criminal proceedings are intended to protect every innocent person, but they should not provide and are not intended to provide the criminal offender with a loophole to avoid his responsibility. IV. As to Article 6 para. 1 of the Convention The Government maintain that a violation of the principle of fair trial embodied in Article 6 is excluded for the very reason that the guarantees under Article 6 only apply to court proceedings and not to police activities preceding the arrest of a criminal offender on the run. The circumstances of the applicant's return could not affect the fairness of his trial. As the Kaiserslautern Regional Court, the Federal Court of Justice and the Federal Constitutional Court have unanimously found, the circumstances of the applicant's arrest in Saarbrücken on 7 November 1978 did not constitute a procedural bar to criminal proceedings against the applicant. V. Conclusion The Government request the Commission to declare inadmissible the complaint under Article 5 para. 1 (c) of the Convention on the ground that it was submitted out of time; and to declare the remainder of the complaints to be inadmissible as being manifestly ill-founded (Article 27 para. 2 of the Convention). B. The Applicant I. As to the facts The applicant points out that K collaborated from the beginning with the German police. Already at the first meeting in Luxembourg police officers, who pretended to be architects, had been present. These persons were probably the officers Kl, H and KE. Furthermore he submits that on 7 November 1978 he had requested that the territory of the Federal Republic of Germany should not be overflown. The pretended engine defect of the aeroplane constituted part of the pre-established plan to bring him back to the Federal Republic of Germany. In fact, having regard to the type of the aeroplane used, the pretended defect of the engine could not have occurred. The applicant points out that on the national level he did not succeed in proving that national authorities were involved in his abduction from France to the Federal Republic of Germany on the ground that the accused policemen made use of their right not to give evidence in order not to incriminate themselves. Certain public prosecutors, who were dealing with the proceedings against him, had not been heard. K had not even been examined as a witness although he could have confirmed that he had collaborated with the police. In this respect the applicant refers to correspondence between K and the police officer Kl as well as a public prosecutor in which K admitted that there was a police conspiracy. The applicant does not agree with the Government's submission that the Commission would be bound by the findings of national courts or that the principle of presumption of innocence would exclude an independent establishment of the facts by the Commission. II. As to Article 26 of the Convention The applicant submits that the complaints as regards Article 5 para. 1 (a) and (c) of the Convention are based on a unique set of facts which cannot be separated. III. As to Article 5 para. 1 of the Convention The applicant disagrees with the Government as to the lawfulness of his arrest. He emphasises that rules of international law were violated in that he was arrested in breach of the territorial sovereignty of another State. The applicant considers that the domestic warrant of arrest could not render his abduction from France lawful. This warrant of arrest was, therefore, not lawfully executed in a procedure prescribed by law. The German authorities should have, in accordance with the rule of law, taken resort to the international law on extradition. IV. As to Article 6 para. 1 of the Convention The applicant disagrees with the German courts' reasoning on a possible violation of the French territorial sovereignty and its legal consequences as a procedural impediment to prosecution. He considers that the main issue under Article 6 para. 1 of the Convention is, whether or not criminal proceedings can still be regarded as fair if the pre-condition to conduct these proceedings, i.e. the accused's presence, was brought about by an unlawful act. The unlawful abduction taints the whole criminal proceedings and renders them unfair. The injustice committed by a State illegally obtaining the arrest of a person could only be redressed by terminating the criminal proceedings and releasing the person. THE LAW 1. The applicant complains that his arrest and subsequent detention were unlawful and not in accordance with a procedure prescribed by law within the meaning of Article 5 para. 1 (Art. 5-1) of the Convention. He also considers that, as a consequence of his unlawful arrest, his right to a fair hearing under Article 6 para. 1 (Art. 6-1) of the Convention was violated in the criminal proceedings against him. Article 5 para. 1 (Art. 5-1) of the Conventions states, inter alia: "1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: a) the lawful detention of a person after conviction by a competent court; ... c) 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; ... " Article 6 para. 1 (Art. 6-1) of the Convention reads, inter alia: "In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... " 2. The respondent Government consider the applicant's complaint, under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention, concerning his arrest and subsequent detention on remand as inadmissible under Article 26 (Art. 26) of the Convention on the ground that it was submitted out of time. In their view the applicant should have submitted an application in this respect within the time-limit of six months which started at the date when his appeal against detention on remand was dismissed. The Government submit that, although in fact the question of the applicant's alleged abduction was of relevance in the further criminal proceedings on the merits, he could, during his detention on remand not be sure that the issue would be dealt with in the later proceedings. As the latest date for the beginning of the six months' period the Government consider the applicant's release from detention on remand on 4 February 1982. It is true that under Article 26 (Art. 26) of the Convention the Commission may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. The Commission notes that the applicant's appeal against the decision of the Kaiserslautern Regional Court of 17 March 1981 concerning his detention on remand was dismissed by the Zweibrücken Court of Appeal on 16 April 1981. On 26 August 1981 the Federal Constitutional Court refused to admit his constitutional complaint concerning the continuation of his detention on remand. However, the Commission finds that the applicant could not be expected to lodge an application with the Commission within six months after the date of that decision. The Commission notes that the trial against the applicant before the Kaiserslautern Regional Court had started on 25 October 1979 and - as the trial court judgment and the further court decisions on the applicant's appeal on points of law and his second constitutional complaint show - the German courts were, in the criminal proceedings on the merits, required to consider the legal consequences of the applicant's alleged abduction for prosecution and conviction. On 25 July 1984 the Federal Court of Justice, in the proceedings concerning the applicant's appeal on points of law, ordered the taking of evidence on the applicant's allegation that German authorities had been involved in his return from France and heard K as witness. A court decision in the criminal proceedings on the merits which would have accepted that the alleged abduction created a procedural impediment for the prosecution could also have affected the lawfulness of the applicant's detention on remand. Furthermore the Federal Constitutional Court, in its decision of 26 August 1981 on the applicant's first constitutional complaint, stated that the trial court had "not yet" decided on the facts and the legal consequences of the applicant's allegations concerning his abduction from France. The applicant could thus assume that he should pursue this issue in the main criminal proceedings pending before the Kaiserslautern Regional Court since October 1979. In these circumstances the Commission finds that the Federal Constitutional Court's decision of 17 July 1985 must be considered as the final decision also with regard to the applicant's complaint concerning his alleged abduction from France. The applicant, having lodged the application on 20 September 1985, has, therefore, observed the six months' rule under Article 26 (Art. 26) of the Convention. 3. The Government further submit that the applicant was lawfully arrested and detained in accordance with Article 5 para. 1 (Art. 5-1) of the Convention. They contest the applicant's allegations of a police conspiracy to effect his return to the Federal Republic of Germany and point out that these allegations were not proved in the domestic investigation proceedings. Moreover, the Government state that it is permissible to conduct criminal proceedings against a person who was allegedly abducted to the Federal Republic of Germany contrary to international law on condition that the foreign State whose sovereign rights were violated does not request that the person abducted be surrendered. As regards Article 6 para. 1 (Art. 6-1) of the Convention the Government contend that the principle of fair trial only applies to court proceedings and is not affected by police activities preceding the arrest of a criminal offender. 4. The Commission, having made a preliminary examination of the applicant's complaints, finds that they cannot be declared manifestly ill-founded on the grounds invoked by the Government without further investigation into the facts. The application raises difficult issues of fact and law, in particular under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention, which can only be determined by an examination of the merits of the case. No other grounds for inadmissibility having been established, the application must, therefore, be declared admissible. For these reasons, the Commission, without in any way prejudging the merits, DECLARES THE APPLICATION ADMISSIBLE. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD)