(Suspected) terrorists
II. RELEVANT DOMESTIC LAW 20. Article 117 of the Code of Criminal Procedure provides, inter alia : “ As long as the accused is in detention on remand, he may at any time apply for a court hearing to determine whether the arrest warrant is to be revoked or whether its execution is to be suspended in accordance with Article 116. ” 21. Article 230 of the Code of Criminal Procedure provides, inter alia : “No trial shall be held in respect of a person who is absent.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 22. The applicant complained that his detention on remand had lasted an excessively long time. He relied on Article 5 § 3 of the Convention, which provides : “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.” A. Admissibility 1. Loss of standing as a victim 23. The Government contended that the applicant could no longer claim to be a victim because the Regional Court had explicitly acknowledged that his detention on remand had lasted an unusually long time and had taken this fact into account when determining his sentence. 24. The Court reiterates that a decision or measure favourable to the applicant does not in principle deprive the individual concerned of his status of victim within the meaning of Article 34 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 142, ECHR 2000 ‑ IV; Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III; and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 - VI). However, as the Convention leaves to each Contracting State, in the first place, the task of securing the enjoyment of the rights and freedoms it enshrines (see Cordier v. Germany ( dec .), no. 71741/01, 19 January 2006 ), this general rule is subject to an exception when the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention (see Eckle v. Germany, 15 July 1982, § 66, Series A no. 51; Jansen v. Germany ( dec .), no. 44186/98, 12 October 2000; and Beck v. Norway, no. 26390/95, § 27, 26 June 2001). In cases concerning the failure to observe the reasonable-time requirement guaranteed by Article 6 § 1 of the Convention, the national authorities can afford adequate redress in particular by reducing the applicant ’ s sentence in an express and measurable manner (see Eckle, cited above, § 66, and Beck, cited above, § 27). The Court has held that such a reduction of the sentence is also capable of affording adequate redress for a violation of Article 5 § 3 in cases in which the national authorities had failed to hear within a reasonable time the case of an applicant held in detention on remand (see Dzelili v. Germany, no. 65745/01, § 83, 10 November 2005 ). 25. Applying these principles to the present case, the Court observes that, although the Convention forms an integral part of the law of the Federal Republic of Germany (see Eckle, cited above, § 67) and there was accordingly nothing to prevent the Regional Court from holding, if appropriate, that the length of the applicant ’ s detention on remand had been in breach of the Convention, either expressly or in substance, the latter court merely conceded that the impugned detention had lasted an “unusually long” time (see paragraph 16 above ). Furthermore, the Court is not satisfied that the applicant was afforded adequate redress for the alleged violation because the Regional Court failed to specify to what extent the applicant ’ s sentence had been reduced on account of the length of his detention on remand (see Dzelili, cited above, § 85). 26. The Court therefore considers that the Regional Court ’ s statement concerning the unusual length of the applicant ’ s detention did not deprive the latter of his status of victim within the meaning of Article 34 of the Convention. 2. Exhaustion of domestic remedies 27. The Government maintained that the applicant had exhausted domestic remedies only in respect of his detention until 24 May 2000, the date of the final decision by a domestic court concerning his request for release. They pointed out that, once a certain period had elapsed after that decision, the applicant could have lodged a further application for release. As he had not availed himself of the opportunity to institute fresh proceedings before the domestic courts after the Federal Constitutional Court ’ s decision of 24 May 2000, he had failed to exhaust domestic remedies in respect of his detention after that date. 28. The applicant did not submit any observations in reply within the time-limit fixed by the Court. 29. The Court refers to its case-law to the effect that an applicant should not usually be required to use at very short intervals a remedy which by its nature might be repeated an indefinite number of times (see Rieme v. Sweden, 22 April 1992, § 50, Series A no. 226 ‑ B, and Guzzardi v. Italy, 6 November 1980, § 80, Series A no. 39 ). The re-examination of a case may, however, be appropriate where new facts have emerged which could furnish a separate basis for a fresh decision. In cases of continued detention for instance, the prolongation of the detention in itself may under certain circumstances justify a re-examination of the question of release (see Lynas v. Switzerland, no. 7317/75, Commission decision of 6 October 1976, Decisions and Reports 6, p. 141, at p. 167 ). 30. In the present case, the applicant had been held in detention on remand for exactly four years when the Federal Constitutional Court refused to examine his constitutional complaint. Under German law, the applicant could have lodged a further application for release at any time after that decision (see paragraph 20 above). However, having regard to the fact that on 13 November 2001 the Regional Court convicted the applicant and ordered his continued detention because of the persisting danger of his absconding, it is rather doubtful whether such a request in the period of time preceding the latter decision would have had any prospect of success. In any event, given that the applicant ’ s detention on remand within the meaning of Article 5 § 3 ended with his conviction by the Regional Court on 13 November 2001 (see Labita, cited above, § 147), that is, eighteen months after the decision of the Federal Constitutional Court, the Court is not satisfied that the institution of fresh proceedings would have shortened the length of his detention on remand to a significant extent. 31. The Court therefore holds that the Government ’ s preliminary objection concerning the exhaustion of domestic remedies must be dismissed. 32. The Court further notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Period to be taken into consideration 33. The period to be taken into consideration under Article 5 § 3 started with the applicant ’ s transfer to Germany on 24 May 1996 (see Nedyalkov v. Bulgaria, no. 44241/98, § 61, 3 November 2005, and De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 71, Series A no. 12) and ended on 13 November 2001 with his conviction by the Berlin Regional Court (see paragraph 30 above). The applicant ’ s detention on remand thus lasted five years and almost six months. 2. Reasonableness of the length of detention 34. The applicant submitted that the length of his detention on remand could not be regarded as justified for the purposes of Article 5 § 3 of the Convention. The Government contested this view. 35. The Court reiterates that the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features and on the basis of the reasons given in the domestic decisions and of the well-documented facts mentioned by the applicant in his applications for release. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see W. v. Switzerland, 26 January 1993, § 30, Series A no. 254-A, and Labita, cited above, § 152). 36. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see I.A. v. France, 23 September 1998, § 102, Reports 1998-VII, and Labita, cited above, § 153). ( a ) General approach 37. The Court notes at the outset that the present case relates to large - scale offences committed in the context of international terrorism. States combating this form of terrorism may be faced with extraordinary difficulties. The Court, whose role it is to examine measures taken in this regard by Contracting States as to their conformity with the Convention, is not oblivious of these difficulties. It sees no reason to depart from the general approach it has adopted in previous cases of a similar nature (see Klass and Others v. Germany, 6 September 1978, §§ 48-49 and 59, Series A no. 28; Brogan and Others v. the United Kingdom, 29 November 1988, § 48, Series A no. 145 ‑ B; Murray v. the United Kingdom, 28 October 1994, § 47, Series A no. 300 ‑ A; Pantano v. Italy, no. 60851/00, § 70, 6 November 2003; and Van der Tang v. Spain, 13 July 1995, § 75, Series A no. 321 ). However, in the context of the issues arising in the present case, the Court considers that the specific nature of these offences and, in particular, the difficulties intrinsic to the investigation of offences committed by criminal associations acting on a global scale call for special consideration. It will bear this context in mind when assessing the reasonableness of the length of the applicant ’ s continued detention, in particular the grounds for his detention and the conduct of the proceedings in the light of the complexity of the case. ( b ) Grounds for continued detention 38. As regards the grounds for the applicant ’ s continued detention, the Court notes that the competent judicial authorities advanced three principal reasons for not suspending the arrest warrant, namely that the applicant remained under a strong suspicion of having committed the crimes of which he was accused, the serious nature of these offences and the fact that the applicant would be likely to abscond if released, given the sentence which he risked incurring if found guilty as charged. 39. The Court accepts that the reasonable suspicion that the applicant committed the offences with which he had been charged, being based on cogent evidence, persisted throughout the trial leading to his conviction. It also agrees that the alleged offences were of a serious nature. 40. As regards the danger of the applicant ’ s absconding, the Court observes that the possibility of a severe sentence alone is not sufficient after a certain lapse of time to justify continued detention based on the danger of flight (see Wemhoff v. Germany, 27 June 1968, § 14, Series A no. 7, and B. v. Austria, 28 March 1990, § 44, Series A no. 175). In the present case the national courts also relied on other relevant circumstances, including the fact that the applicant had been extradited from Lebanon to Germany for the purposes of criminal proceedings in the context of international terrorism. He had neither a fixed dwelling nor social ties in Germany which might have prevented him from absconding if released. Accordingly, the Court is satisfied that a substantial risk of the applicant ’ s absconding persisted throughout his detention and accepts the domestic courts ’ finding that no other measures to secure his presence would have been appropriate. It further observes that under German legislation no trial can be held in respect of an accused who has absconded and whose whereabouts are unknown (see paragraph 21 above ). 41. Consequently, the Court concludes that there were relevant and sufficient grounds for the applicant ’ s continued detention. ( c ) Conduct of the proceedings 42. It remains to be ascertained whether the judicial authorities displayed “special diligence” in the conduct of the proceedings. 43. The Court takes the view that the applicant ’ s case was extremely complex. It concerned serious charges against him and four co-defendants and necessitated the hearing of 169 witnesses. The case had a terrorist and international background and, moreover, involved 106 joint plaintiffs. 44. As to the conduct of the proceedings by the judicial authorities, the parties agreed that no delay in the proceedings had been attributable to the German courts and authorities, which had displayed the necessary diligence throughout the proceedings. The Court notes that, following the applicant ’ s indictment on 30 January 1997, his trial in the Berlin Regional Court began on 5 September 1997. Hearings took place on 281 separate days with on average two hearings per week until the Regional Court ’ s decision of 13 November 2001. The hearings were regularly attended by five defendants, their 15 lawyers, 106 joint plaintiffs and their 29 lawyers. Accordingly, having regard to the difficulties intrinsic to the prosecution of offences committed in the context of international terrorism, the competent judicial authorities cannot be said to have displayed a lack of special diligence in handling the applicant ’ s case. 45. In the light of these various factors, the Court finds that the competent national court acted with the necessary special diligence in conducting the proceedings in the applicant ’ s case. ( d ) Overall assessment 46. The Court has found in previous cases that detention on remand exceeding five years constituted a violation of Article 5 § 3 of the Convention (see Korchuganova v. Russia, no. 75039/01, § 77, 8 June 2006; I.A. v. France, cited above, § 112; and Khudoyorov v. Russia, no. 6847/02, § 189, 8 November 2005 ). 47. The present case involved a particularly complex investigation and trial concerning serious offences of international terrorism which caused the death of three victims and serious suffering to more than a hundred. Following his extradition from Lebanon in 1996, the sole reason for the applicant ’ s presence in Germany was to stand trial for these offences. 48. In these exceptional circumstances, the Court concludes that the length of the applicant ’ s detention can still be regarded as reasonable. There has accordingly been no violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 49. The applicant complained that the length of his detention on remand violated the presumption of innocence. He relied on Article 6 § 2 of the Convention, which provides : “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 50. The Court observes that this complaint is based on the same facts as the complaint under Article 5 § 3 and must be likewise declared admissible (see paragraph 32 above). 51. Given that the Court takes into account the presumption of innocence when assessing whether the length of a period of pre-trial detention was justified (see Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000 ‑ XI, and Labita, cited above, § 152), no separate question arises under Article 6 § 2. There is accordingly no need to examine the complaint regarding the length of the applicant ’ s detention on remand under this Article as well. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 52. In his first letter to the Court, the applicant submitted that the length of the criminal proceedings against him had not been proportionate. However, he also observed that the German authorities could not be held responsible for the unusual length of the impugned proceedings. In his subsequent submissions, the applicant pointed out that the national authorities had observed their obligation to proceed speedily throughout the proceedings and that the length of the proceedings was rather due to the complexity of the case and the number of persons involved in the proceedings. 53. The Government argued that the applicant had obviously not intended to raise the length-of-proceedings complaint. 54. The Court notes that the applicant ’ s submissions on this point are disputable as he pointed out that the German authorities and courts could not be held responsible for the unusual length of the proceedings. Furthermore, he failed to submit any clarification in response to the Government ’ s allegation that he had not complained of the length of the proceedings. The Court therefore finds that the applicant failed to substantiate his length-of-proceedings complaint with sufficient clarity. 55. Even assuming that domestic remedies have been exhausted, this part of the application is accordingly manifestly ill-founded and must be rejected as inadmissible pursuant to Article 35 of the Convention.
The Court held that there had been no violation of Article 5 § 3 (right to be tried within reasonable time) of the Convention, finding that, in the exceptional circumstances of the present case, the length of the applicant’s detention could be regarded as reasonable. The Court observed in particular that the case had concerned a particularly complex investigation and trial into large-scale offences which had been committed in the context of international terrorism. It also noted that States combating terrorism may be faced with extraordinary difficulties. The Court therefore accepted the reasons given by the German courts for the applicant’s continued detention and took the view that the competent judicial authorities could not be said to have displayed a lack of special diligence in handling his case.