(Application no. 65655/01)
26 October 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Chraidi v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mr P. Lorenzen, President,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 2 October 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant, Mr Yasser Chraidi, was born in 1959 in Lebanon. When lodging his application, he was detained in Berlin. He is presently living in Lebanon.
6. On 1 August 1984 the Berlin Tiergarten District Court issued an arrest warrant against the applicant on the ground that he was strongly suspected of having murdered E.
7. On 19 July 1990 the Berlin Tiergarten District Court issued a further arrest warrant against the applicant and five other suspects, born in Lebanon, Libya or Morocco. The court accused the applicant of having prepared, with others, the bomb attack of the discotheque “La Belle” in Berlin on 5 April 1986 in order to kill as many members of the American armed forces as possible. During this terrorist attack three persons had been killed and 104 persons had been seriously injured.
9. On 21 June 1994 a Lebanese court acquitted the applicant as regards E's murder but convicted him of forgery and sentenced him to one year and six months' imprisonment.
10. On 24 May 1996 the applicant was extradited to Germany and subsequently held in detention on remand on account of the arrest warrant of 1990.
12. On 30 January 1997 the Public Prosecutor lodged the bill of indictment. On 5 September 1997 the Berlin Regional Court opened the main proceedings against the applicant and four other accused. Between 1997 and 2000 the Berlin Court of Appeal repeatedly ordered the applicant's further detention on remand.
13. On 13 January 2000 the Berlin Regional Court rejected the applicant's request for release. It held that there was still a danger of his absconding. Furthermore, the reasonable suspicion that the applicant had committed the offences with which he had been charged persisted. The continued detention was also proportionate having regard to the serious nature of those offences, the prospective sentence, the importance of the case and the particular public interest in the prosecution of these offences. Furthermore, there had been no breach of the obligation to proceed speedily.
14. On 1 March 2000 the Berlin Court of Appeal upheld the decision. Concerning the suspicions as regards the applicant, the court pointed out that it was bound to the assessment of the Regional Court. Furthermore, the danger of absconding persisted in view of the impending lifelong prison sentence. The objective of the detention on remand could accordingly not be accomplished by alternative, less radical, preventive measures. Although the applicant had already been detained since 8 January 1994, his further detention remained proportionate having regard to the importance of the case, the character and seriousness of the offences and the particular public interest in the prosecution of these offences. Referring to the principle of proportionality the court underlined that a detainee's right to liberty could outbalance the public interest in the prosecution, as time passed, if there was for instance an imminent risk of irreparable damage to his health. In the present case however, nothing suggested that the applicant's life or health was at risk. Moreover, given that the Regional Court had continuously held two hearings per week since November 1997, the length of proceedings could not be considered disproportionate.
15. On 24 May 2000 the Federal Constitutional Court refused to admit his complaint without giving any reasons. The decision was served on the applicant's lawyer on 30 May 2000.
16. On 13 November 2001 the Berlin Regional Court convicted the applicant of three counts of aiding and abetting murder, on 104 counts of aiding and abetting attempted murder and of aiding and abetting causing an explosion (Herbeiführung einer Sprengstoffexplosion). The court alluded to the historical background of the case, in particular to the tensions between the United States and Libya which had arisen following terrorist attacks in 1985. In January 1986 the United States Government had imposed a trade embargo on Libya and had ordered the blocking of all Libyan state assets in United States banks. These measures led to military interventions and to the planning by Libyan nationals of terrorist attacks on United States facilities in Germany. The court further pointed out that the applicant's crimes were punishable with imprisonment of up to fifteen years and sentenced him to fourteen years' imprisonment. When determining the sentence, the court took inter alia into account that the applicant's detention on remand and the proceedings had lasted unusually long. It further determined that since 8 January 1994 the applicant had been detained in Lebanon with a view to extradition in respect of the present case. This detention had to be deducted from his prison sentence at a ratio of 1:3 until 30 April 1994 and at a ratio of 1:2 as of 1 May 1994. The court moreover ordered the applicant's further detention. The judgment, comprising 380 pages, was served on the applicant's lawyer on 10 January 2003.
17. The Berlin Regional Court pronounced its judgment after having held 281 hearings with an average of two hearings per week and having heard 169 witnesses. The hearings, which had an average duration of five hours each, were regularly attended by the five accused, their 15 lawyers, 106 joint plaintiffs, their 29 lawyers and three interpreters.
18. On 24 June 2004 the Federal Court of Justice rejected the applicant's and the Public Prosecutor's appeals on points of law.
19. On 28 April 2005 the applicant was released.
20. Section 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 as to whether the arrest warrant is to be revoked or whether its execution is to be suspended in accordance with Section 116.”
21. Section 230 of the Code of Criminal Procedure provides inter alia:
“No main hearing shall be held in respect of a person who is absent.”
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
“ (...) 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.”
1. Loss of standing as a victim
2. Exhaustion of domestic remedies
29. The Court recalls its case-law pursuant to which an applicant can usually not be requested to use at very short intervals a remedy, which by its nature might be repeated an indefinite number of times (see Rieme v. Sweden, judgment of 22 April 1992, Series A no. 226 B, § 50; and Guzzardi v. Italy, judgment of 6 November 1980, Series A no. 39, § 80). The re-examination of a case may, however, be indicated where new facts have emerged which would furnish a separate basis for a new 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 (DR) 6, p. 154).
1. Period to be taken into consideration
2. The reasonableness of the length of detention
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 such terrorism may be faced with extraordinary difficulties. The Court whose role it is to examine such measures by Convention 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, judgment of 6 September 1978, Series A no. 28, p. 23 and 27-28, § 48-49 and 59; Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145 B, § 48; Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300 A, § 47; Pantano v. Italy, no. 60851/00, § 70, 6 November 2003; and Van der Tang v. Spain, judgment of 13 July 1995, Series A no. 321, § 75). 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 investigations 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
c. Conduct of the proceedings
d. Overall assessment
46. The Court has found in previous cases that a 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, judgment of 23 September 1998, Reports 1998 VII, § 112; and Khudoyorov v. Russia, no. 6847/02, § 189, ECHR 2005 ... (extracts)).
47. The present case concerned a particularly complex investigation and trial into serious offences of international terrorism, having caused the death of three and serious suffering to more than hundred victims. Having been extradited from Lebanon in 1996, the sole reason for the applicant's presence in Germany was to stand trial for these offences.
II. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
“ (...) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
55. Even assuming the exhaustion of domestic remedies, this part of the application is accordingly manifestly ill-founded and must be rejected as inadmissible pursuant to Article 35 of the Convention.
FOR THESE REASONS, THE COURT
Done in English, and notified in writing on 26 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following concurring opinion of Mr Borrego is annexed to this judgment.
CONCURRING OPINION OF JUDGE BORREGO BORREGO
For the purpose of a review under Article 5 § 3 of the Convention, the Court's case-law establishes two criteria: the grounds for the continuous detention and the conduct of the proceedings. On the basis of both criteria, the Court examines the particular circumstances of the case and decides on the reasonableness of the length of the applicant's detention on remand. In the present case, the Court has applied these general criteria (paragraphs 37 to 45 of the judgment) and has examined the unusual, even exceptional, circumstances of this case (281 hearing-days, among others). The Court, therefore, holds that there has been no violation of the Convention. This is also my conclusion.
I nevertheless respectfully disagree with the preambular paragraph 37 as well as with the use of the words “international terrorism”, which are repeatedly mentioned, up to four times in all (paragraphs 37, 40, 44 and 47).
Firstly, I find the initial considerations in paragraph 37 regarding international terrorism superfluous. In my opinion, they could lead readers to think that, in addition to the above-mentioned general criteria which characterize its jurisprudence, the Court has created a new criterion, concerning a specific category of crime: international terrorism. I think that international terrorism is not and should not be considered as a criterion. On the contrary, the nature of the crime has to be examined as part of the particular circumstances of every case.
The very specific and relevant circumstances of the instant case are weakened by the fact that the two general criteria are locked in between the initial general approach and the final overall assessment, which stresses the international terrorism aspect. I am convinced that there is no violation of the Convention, because the application of the two general criteria to the present case so proves. The insistence on referring to international terrorism and the special weight given to this crime is, in my opinion, unnecessary, and it can be dangerous for the Convention system.
Finally, I would like to express my complete disagreement with the expression “international terrorism”. Not only is it wrong, but it could lead to misunderstandings. Indeed, it could give rise to questions or doubts. For instance, one might wonder whether there are different categories of the crime called terrorism and whether these different categories have different consequences. One might also wonder whether terrorism can be considered as “international”, depending on the terrorists' nationality (in which case, would the attack of 7 July 2005 in London, where the alleged perpetrators were British, be considered an example of international terrorism?). Other
questions may arise regarding the different nationality and role played by those who plan the attack, those who finance it and those who execute it. And regarding the victims of terrorism, are there different categories of victim, depending on the type of terrorism? That would be repugnant.
“Popular democracy”, “organic democracy” and other similar expressions became part of European history and we all remember it. I would therefore gently ask the Court not to insist on qualifying and, thus, trying to make artificial distinctions with respect to something that is purely and simply a crime: terrorism.