FIFTH SECTION

CASE OF CHRAIDI v. GERMANY

(Application no. 65655/01)

JUDGMENT

STRASBOURG

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:
PROCEDURE
1.  The case originated in an application (no. 65655/01) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a stateless person, Mr Yasser Chraidi (“the applicant”), on 27 November 2000.
2.  The applicant was represented by Mr Lammer, a lawyer practising in Berlin. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialrätin, of the Federal Ministry of Justice.
3.  On 21 November 2005 the Court decided to communicate the application. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.
4.  On 1 April 2006 this case was assigned to the newly composed Fifth Section (Rule 25 § 1 and Rule 52 § 1).

THE FACTS
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.
8. On 1 September 1992 the applicant was arrested by the police in Lebanon and subsequently taken into detention with a view to extradition.
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.
11.  On 25 November 1996 the Berlin Court of Appeal ordered the applicant's further detention on remand. It held that the reasonable suspicion that the applicant had committed the offences with which he had been charged resulted inter alia from the confession of one of the other suspects. The danger of absconding still persisted as the applicant had been extradited to Germany only in May 1996 and because he neither had a fixed dwelling nor social bonds in Germany which would prevent him from absconding if released. The court moreover referred to the impending lifelong prison sentence and underlined that more lenient preventive measures would not be suitable. Finally, there had been no breach of the obligation to proceed speedily (Beschleunigungsgebot).
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.
II.  RELEVANT DOMESTIC LAW
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.”
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
22.  The applicant complained that his detention on remand had lasted excessively long. He invoked Article 5 § 3 of the Convention which, insofar as relevant, reads as follows:
“ (...) 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 the applicant's detention on remand had lasted unusually long and had taken this fact into account when determining the applicant's sentence.
24.  The Court recalls 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 judgment of 25 June 1996, Reports of Judgments and Decisions  1996-III, p. 846, § 36; 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, judgment of 15 July 1982, Series A no. 51, p. 30, § 66; Jansen v. Germany (dec.), no. 44186/98, 12 October 2000; 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; Beck, cited above, § 27). In the Court's view, such a mitigation 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 the case of an applicant held in detention on remand within a reasonable time (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 detention on remand had been in breach with the Convention, either expressly or in substance, the latter court merely conceded that the impugned detention had lasted “unusually long” (see § 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 only exhausted the domestic remedies with regard to his detention until 24 May 2000, which was the date of the final decision by a domestic court concerning his request for release. They underlined that – following a certain lapse of time after that decision – the applicant could have lodged a further request for release. As he had not availed himself of the opportunity to institute fresh proceedings before the domestic courts after the decision of the Federal Constitutional Court dated 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 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).
30.  In the present case, the applicant had been held in detention on remand for exactly four years when the Federal Constitutional Court rejected his constitutional complaint. Pursuant to the German law, the applicant could have lodged a further request for release any time after that decision (see “Relevant domestic law”, § 20, above). However, having regard to the fact, that on 13 November 2001 the Regional Court convicted the applicant and ordered his further detention because of the persisting danger of absconding, it is rather doubtful whether such a request in the period of time preceding the latter decision would have had any prospects 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 v. Italy cited above, § 147) and accordingly 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 the applicant's detention on remand in a significant manner.
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, judgment of 18 June 1971, Series A no. 12, p. 39, § 71) and ended on 13 November 2001 with the applicant's conviction by the Berlin Regional Court (see § 30 above). The applicant's detention on remand thus lasted five years and almost six months.
2.  The 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 recalls 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, judgment of 26 January 1993, Series A no. 254-A, p. 15, § 30; 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, judgment of 23 September 1998, Reports 1998-VII, p. 2979, § 102; 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 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
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 he was accused of, the serious nature of these offences and 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 he had been charged with, 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 the continued detention based on the danger of flight (see Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, p. 25, § 14; B. v. Austria, judgment of 28 March 1990, Series A no. 175, p. 16, § 44). 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 neither had a fixed dwelling nor social bonds in Germany which would prevent him from absconding if released. Accordingly, the Court is satisfied that a substantial risk of the applicant's absconding persisted over the total period of his detention and accepts the domestic courts' finding that no other measures to secure his presence would have been appropriate. It moreover observes that under German legislation no hearing can be held against an accused who absconded and whose whereabouts are unknown (see “Relevant domestic law” above, § 21).
41.  Consequently, the Court concludes that there have been 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 had been extremely complex. It concerned serious charges against him and four co-defendants and had 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 were attributable to the German courts and authorities who had displayed the necessary diligence throughout the proceedings. The Court notes that, following the indictment of 30 January 1997, the trial before the Berlin Regional Court began on 5 September 1997. The hearings took place on 281 days with an average of two hearings per week until the Regional Court's decision of 13 November 2001. The hearings had regularly been attended by five accused, their fifteen 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 applicant's 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.
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, insofar as relevant, reads as follows:
“ (...)  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 § 32 above).
51.  Given that the Court takes into account the presumption of innocence while assessing whether the length of the 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 about the length of the detention on remand also under that Article.
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 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 underlined that the national authorities had observed their obligation to proceed speedily throughout the proceedings and that the length of the latter was rather due to the complexity of the case and the quantity of the 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 concerning the length of proceedings are controversial as he underlined that the German authorities and courts could not be held responsible for the unusual length of proceedings. Furthermore, he failed to submit any clarification following the Government's allegation that he had not complained about the length of proceedings. The Court therefore finds that the applicant failed to substantiate the length-of-proceedings complaint with sufficient clarity.
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
1.  Declares unanimously the complaint about the length of the applicant's detention on remand admissible and the remainder of the application inadmissible;

2.  Holds unanimously that there has been no violation of Article 5 § 3 of the Convention;

3.  Holds unanimously that there is no need to examine the complaint about the length of the applicant's detention on remand under Article 6 § 2 of the Convention;

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 Lorenzen
	Registrar	President

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.

P.L.
C. W.

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.