European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF EREREN v. GERMANY

 

(Application no. 67522/09)

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

6 November 2014

 

 

 

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 Ereren v. Germany,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Mark Villiger, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ganna Yudkivska,
          Vincent A. De Gaetano,
          Helena Jäderblom,
          Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 14 October 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 67522/09) 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 Faruk Ereren (“the applicant”), on 14 December 2009.

2.  The applicant, who had been granted legal aid, was represented by Mr P. Budde, a lawyer practising in Dortmund. The German Government (“the Government”) were represented by their Agent, Mr H.-J. Behrens, of the Federal Ministry of Justice.

3.  The applicant alleged, in particular, that the length of his pre-trial detention had been excessive.

4.  On 5 September 2013 the complaint concerning the length of the applicant’s pre-trial detention was communicated to the Government and the remainder of the application was declared inadmissible.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1955 and lives in Hagen in Germany.

A.  The preliminary investigations

6.  The applicant was arrested on 8 April 2007. His identity papers proved to be forgeries. On 9 April 2007 the Hagen District Court (Landgericht) issued an arrest warrant against the applicant based on possession of forged documents.

7.  On 11 April 2007 the General Public Prosecutor took over the investigation. On 23 May 2007 the Federal Court of Justice (Bundesgerichtshof) quashed the arrest warrant and issued a fresh arrest warrant based, inter alia, on the suspicion of membership of a foreign terrorist organisation (the Revolutionary People’s Liberation Party-Front, DHKP-C).

8.  On 21 June 2007 the Federal Court of Justice rejected the applicant’s appeal against the arrest warrant.

9.  On 30 August, 30 October 2007 and 14 February 2008 the Federal Court of Justice upheld the arrest warrant and ordered that the applicant’s detention be continued.

10.  On 27 May 2008 the Federal Court of Justice issued a new arrest warrant. According to the new warrant, the applicant was strongly suspected of having played a leading role in the activities of a foreign terrorist organisation, and of having committed two counts of murder and six counts of attempted murder. The applicant had, in particular, telephoned witness G.G. from Germany to instruct him to carry out a terrorist attack which took place in Istanbul on 1 April 1993 and in which two policemen were killed. The applicant was further suspected of having ordered several terrorist attacks carried out by detonating explosives in Turkey between January 2001 and July 2005.

11.  On 17 June 2008 the Federal Court of Justice ordered the extension of the applicant’s detention.

12.  On 24 June 2008 the General Public Prosecutor lodged a bill of indictment against the applicant comprising 286 pages plus a list of evidence covering another 81 pages, based on the same grounds as the arrest warrant dated 27 May 2008.

13.  On 2 October 2008 the Federal Court of Justice ordered the applicant’s continued detention.

B.  The first set of proceedings before the Düsseldorf Court of Appeal

14.  On 21 November 2008 the Düsseldorf Court of Appeal (Oberlandesgericht, no. III-2 STS 1/08), sitting as a first instance court for proceedings concerning State security, decided to open the trial against the applicant. The hearing started on 15 January 2009 and took place on 95 days.

15.  On 28 April 2009 witness G.G. was heard by a court in Istanbul in the presence of all parties to the proceedings.

16. On 9 June 2009, after 16 days of court hearing, the Court of Appeal quashed the arrest warrant insofar as it had been based on the suspicion that the applicant had ordered the attack which had taken place in Istanbul on 1 April 1993 and ordered the applicant’s continued detention based on the remaining grounds of the arrest warrant. The Court of Appeal considered that witness G.G., relied upon by the prosecution, had not confirmed the testimony he had given to the Turkish authorities in 1993. Conversely, he had stated that he had been tortured by Turkish civil servants and had been forced to sign a prepared protocol. He did not know the applicant. Under these circumstances, no strong suspicion persisted that the applicant had ordered the above-mentioned criminal act.

17.  The Court of Appeal considered that the applicant remained under strong suspicion of having committed the other crimes of which he was accused. There was, in particular, sufficient documentary and witness evidence supporting the allegation that the applicant, as a leading member of a terrorist organisation, was responsible for causing explosions and committing other criminal acts. The Court of Appeal inter alia referred to the minutes and decisions of the founding congress which established that the applicant had been elected as a member of the central committee of the DHKP-C in the beginning of 1999.

18.  The Court of Appeal further considered that the applicant might abscond and that there was a risk of collusion. The court observed that the applicant, who had been residing illegally in Germany, had neither a fixed residence nor sufficient social ties to ensure his appearance before the court. There were thus no milder means available to secure his presence at the trial.

19.  The Court of Appeal further considered that the proceedings were expedited as required in cases involving pre-trial detention. The Court of Appeal included a detailed account of the trial, explaining that on several occasions witnesses could not be questioned by the court because they exercised their right not to testify. The court had heard testimony from nine witnesses and was then hearing four further witnesses. In order to establish whether the applicant had committed the crimes of which he had been accused, testimony from Turkish witnesses was of paramount importance. Accordingly, the Court of Appeal had to make several enquiries by way of letters rogatory in Turkey.

20.  On 4 August 2009 the Federal Court of Justice (Bundesgerichtshof) rejected the applicant’s complaint. The Federal Court of Justice confirmed that the applicant remained under strong suspicion of having ordered several explosions causing injuries and death. The court further confirmed that the danger of the applicant’s absconding, and of collusion, remained. The continuation of his detention was not disproportionate in view of the importance of the subject matter and of the considerable punishment to be expected in case of a criminal conviction. Furthermore, the length of the proceedings was due to their complexity, as had been set out in detail by the Court of Appeal.

21.  On 6 October 2009 the Federal Constitutional Court (Bundesverfassungsgericht, no. 2 BvR 2133/09) refused to consider the applicant’s complaint against the decisions of 9 June and 4 August 2009, without giving further reasons.

22.  On 17 February 2010 witness S.G. and one further witness were heard in Istanbul.

23.  On 17 May 2010 the Düsseldorf Court of Appeal extended the arrest warrant on the grounds that there was again a strong suspicion that the applicant had ordered the attack during which two policemen were killed in Istanbul in April 1993. This assessment was, in particular, based on testimony given by witness S.G., who had stated that G.G. had informed him in 1993 that the applicant had given him the order to carry out the attack against the policemen. The Court of Appeal considered that this statement was consistent and credible. Furthermore, there was corroborative evidence from witnesses who had confirmed that the applicant held a leading position in the terrorist organisation at the relevant time.

24.  The Court of Appeal further found that there remained a strong suspicion that the applicant had committed the other crimes of which he was accused. Referring to its previous decisions, the Court of Appeal considered that the danger of the applicant’s absconding persisted. This danger had further been aggravated by the fact that another Chamber of the Court of Appeal had, in the meantime, allowed the applicant’s extradition to Turkey. According to an intelligence report dating from 2009, a leader of the terrorist organisation had ordered that the applicant be taken out of the country immediately if released from detention. It was furthermore known that the terrorist organisation had the necessary means to put this plan into action.

25.  The Court of Appeal finally considered that the prolongation of the pre-trial detention was not disproportionate, having regard to the importance of the subject matter and to the seriousness of the penalty to be expected in case of a criminal conviction.

26.  On 23 September 2010 witness S.G. was once again heard in Istanbul.

27.  On 10 February 2011, on the sixty-eighth day of the hearing, the Court of Appeal closed the hearing of evidence and heard the prosecutor’s pleadings. Upon defence counsel’s request, the hearing of evidence was re-opened and the Court of Appeal limited the charge to two counts of murder committed in April 1993, while discontinuing the proceedings concerning the other charges originally brought against the applicant.

28.  On 27 September 2011 the Düsseldorf Court of Appeal convicted the applicant of two counts of murder and sentenced him to life imprisonment. On the basis of the evidence presented during the hearing, the Court of Appeal found it established that the applicant had ordered the assassination of the policemen by telephone from Germany at the end of March 1993. The court primarily based the applicant’s conviction on testimony from witness S.G. The Court of Appeal further considered that this finding was in line with the command structure inside the terrorist organisation and was not called into question by G.G.’s allegations that he did not know the applicant. During his hearing before the Turkish court, G.G. had refused to make any more specific statements. Under these circumstances, the vague statement that the applicant did not have anything to do with the attack was not sufficient to call S.G.’s testimony into question.

29.  The Court of Appeal finally considered that the length of detention and of the main hearing did not violate the applicant’s rights under Article 6 of the Convention. The specific circumstances of the instant case did not allow for an earlier termination of the proceedings. This was due to the extent and the complexity of the criminal charges. Apart from two counts of murder, of which he had been convicted, the applicant had been accused of holding a leading role in a foreign terrorist organisation and of having participated in causing a considerable number of explosions in Turkey. The case-files consisted of approximately 130 large volumes. As the applicant had been arrested by chance, the examination of the relevant facts could begin only after his arrest. The Turkish authorities had submitted a large number of documents such as expert opinions, sketches and records of witness testimony, which had to be translated and examined before the issue of the indictment on 24 June 2008. Due to the volume of the case-file and to the complexity of the subject matter, the main proceedings could not be opened before 21 November 2008. During the hearing, the progress of the taking of evidence had been determined by several requests by letters rogatory to the Turkish authorities. Members of the court and representatives of the parties travelled to Turkey four times in order to attend the hearing of witnesses before Turkish courts. Each taking of evidence by letters rogatory took considerably more than half a year. Following this, the taking of evidence was closed on 10 February 2011, but re-opened altogether three times at the request of the defence. The reading out of the applicant’s last word alone took four days.

C.  The appeal proceedings

30.  On 29 November 2012 the Federal Court of Justice quashed the judgment of the Düsseldorf Court of Appeal and remitted the case to another Chamber of that court. The Federal Court of Justice considered that the assessment of the evidence by the Court of Appeal had been erroneous as that court had wrongly assumed that the testimony given by S.G. on the circumstances of his alleged conversation with G.G. was consistent and without contradictions.

31.  The Federal Court of Justice further considered that it could not be ruled out that this error had been decisive for the Court of Appeal in reaching its verdict. There were further reasons to review critically S.G.’s testimony. Firstly, S.G. had not directly witnessed the applicant ordering the attack, but was merely a hearsay witness. Furthermore, the witness was not heard by the trial court, but by a Turkish court at the trial court’s request. Finally, S.G., who had been arrested in Turkey in 2002, had collaborated with the Turkish police and had thus benefited from a milder sentence and early release from prison.

D.  The second set of proceedings before the Düsseldorf Court of Appeal

32.  On 17 January 2013 the Düsseldorf Court of Appeal (no. III-6 STS 3/12) ordered the applicant’s continued detention. The further detention was justified because the applicant was under strong suspicion of having committed a serious crime and because there was the risk that he might abscond. That court considered that the applicant remained under strong suspicion of having ordered the attacks carried out on the policemen on 1 April 1993. This was not called into question by the Federal Court of Justice’s decision to quash the judgment. The potential contradictions in the statements made by witness S.G. had to be examined in the new main proceedings. The Court of Appeal further considered that there were no milder means available to secure the applicant’s appearance before the court and that the length of his detention was not yet disproportionate. The fact that the Federal Court of Justice had quashed the judgment of the Düsseldorf Court of Appeal did not lead to a violation of the obligation to expedite the proceedings, as there was no obvious procedural error. Furthermore, the Court of Appeal had respected the obligation to expedite the proceedings by preparing the requests for letters rogatory in order to begin the main hearing by the end of April or the beginning of May 2013.

33.  On 19 March 2013 the Federal Court of Justice rejected the applicant’s complaint. That court confirmed that the applicant remained under strong suspicion of having ordered the attack in Istanbul. This suspicion was primarily based on testimony given by witness S.G. during the main hearing on 17 February and 23 September 2010 and statements made by witness G.G. during his interrogation by Turkish police on 2 May 1993. This was not called into question by the fact that the judgment of the Düsseldorf Court of Appeal had been quashed on the applicant’s appeal on points of law. The contradiction in S.G.’s testimony did not concern the core content of his statement, which remained unchanged.

34.  The Federal Court of Justice further observed that witness G.G. had stated, during interrogations by the Turkish authorities on 2 May 1993, that the applicant had given him the order to carry out the attack on 1 April 1993. The court considered that it was not prevented from taking into account this statement by G.G.’s repeated claims that he had made this statement under torture, as his vague and general allegations were not confirmed.

35.  The Federal Court of Justice finally considered that the length of detention (almost six years) was not disproportionate. The court gave a full account of the proceedings and concluded that the length of the proceedings was primarily determined by the complexity of the subject matter and by the very strong international dimension of the case. Conversely, there had not been any considerable delays imputable to the trial court.

36.  On 15 May 2013 the Federal Constitutional Court (no. 2 BvR 790/13), relying on its Rules of Procedure, refused to accept the applicant’s constitutional complaint for adjudication.

37. On 6 May 2013 the fresh hearing of the applicant’s case started before the Düsseldorf Court of Appeal.

38.  On 4 October 2013 the Court of Appeal ordered the applicant’s continued detention on the basis of the arrest warrant of 27 May 2008.

39.  On 4 February 2014, following a new request lodged by the applicant on 20 January 2014, the Düsseldorf Court of Appeal quashed the arrest warrant and ordered the applicant’s release from detention. The applicant was released on that same day.

40.  The Court of Appeal considered that the further execution of detention would be disproportionate. According to that court the applicant remained firmly suspected of having ordered the attack of 1 April 1993, in which two policemen were killed. This assessment was based on the testimony given by S.G. in the first set of proceedings as well as on further corroborative evidence. The Court of Appeal considered that to prolong the detention would be disproportionate. In cases involving pre-trial detention, the criminal courts were under a constitutional obligation to expedite the proceedings (Beschleunigungsgebot). This principle had to be applied even more strictly given the long duration of the applicant’s detention. The Court of Appeal considered that it could not foresee when it would hear witness testimony from S.G., who was the primary witness for the prosecution. In spite of several reminders, the requests for letters rogatory lodged with the Turkish authorities in April and September 2013 had not so far been disposed of. As it was unclear when the witness could be heard, the Court of Appeal considered that it was unable duly to expedite the proceedings as would have been necessary in view of the fact that detention had already lasted almost seven years. The Court of Appeal noted that the statements made by witness G.G. to the Turkish Authorities in 1993 could not be used because it could not be ruled out that they had been obtained by torture.

41.  In August 2014, the criminal proceedings were still pending before the Düsseldorf Court of Appeal.

II.  RELEVANT DOMESTIC LAW

42.  Under section 112 § 1 of the Code of Criminal Procedure, pre-trial detention may be ordered if an accused is strongly suspected of the offence and if there are grounds for arrest. Detention may not be ordered if it is disproportionate to the significance of the case or to the penalty to be imposed.

43.  Under paragraph 2, grounds for arrest shall exist if there is a risk of absconding or of tampering with evidence. Paragraph 3 provides that pre-trial detention may also be ordered for an accused strongly suspected of having committed specific serious crimes, inter alia, murder or manslaughter.

THE LAW

ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

44.  The applicant complained that the length of his pre-trial detention violated his rights under Article 5 § 3 of the Convention, which reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

45.  The Government contested that argument.

A.  Admissibility

46.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The applicant’s submissions

47.  The applicant submitted that the Düsseldorf Court of Appeal had failed sufficiently to expedite the proceedings. During the first half of the year 2009, only 19 of the 54 hearing days originally scheduled had taken place. Subsequently, court hearings took place with even less frequency. The applicant conceded that it might not have been possible to expedite the proceedings further by scheduling more hearing dates because of the strong international context. However, in the light of the applicant’s right to personal liberty, this factor could not weigh against him. If the German State, within the framework of international anti-terror laws, took on the task of prosecuting alleged criminal acts that had been committed abroad, and if the proceedings were delayed by circumstances beyond the State’s sphere of influence, these delays had nevertheless to be held imputable to the German State. It remained unclear when the Turkish authorities would terminate the pending requests by letters rogatory.

48.  According to the applicant, the length of detention was due to the lack of support by the Turkish authorities and by the lack of critical consideration of the available evidence. The applicant stressed that the Court of Appeal, in the first set of proceedings, had travelled to Istanbul four times in order to attend witness interrogations. The courts did not allow for an interrogation by audio-visual link. S.G.’s testimony was problematic because it was based on hearsay, because the interrogation did not take place during the main hearing and because the witness had obtained substantial rewards for the active support he had given to the Turkish prosecution authorities. S.G.’s testimony was furthermore contradictory and its wrong assessment led to the first instance judgment being quashed by the Federal Court of Justice. The judgment of the Court of Appeal suffered from a number of further procedural defects.

49.  Given the problematic nature of the witness statement, and in the light of the principle of proportionality, the Court of Appeal would have been obliged under the Convention to release the applicant by 17 May 2010 at the latest. Instead, it ordered the applicant’s continued detention.

2.  The Government’s submissions

50.  The Government submitted that the length of the applicant’s pre-trial detention was proportionate, given the seriousness of the criminal offences of which the applicant was suspected and the danger of his absconding. The length of the proceedings was due to the extraordinarily broad scope and complexity of the alleged offences and the extensive cross-border implications. This complexity was demonstrated by the fact that the case-files had in the meantime increased to 134 volumes.

51.  According to the Government, throughout the proceedings the applicant remained strongly suspected of having committed serious crimes. The arrest warrant issued against the applicant had been reviewed several times and had been adapted to current investigation results. The Government emphasised that the Istanbul Public Prosecutor had been searching for the applicant since April 1997. Accordingly, investigations were characterised by extensive international correspondence and by the need to await the outcome of, and to translate, the results of investigations carried out abroad. The arrest warrant issued on 27 May 2008 was based on exceptionally extensive documentary evidence on the terrorist organisation’s activities provided by the Dutch and Turkish authorities. The grounds for the applicant’s detention were regularly reviewed by the domestic courts, both before and after the indictment.

52.  Furthermore, the risk of the applicant’s absconding and the danger of collusion persisted throughout the proceedings.

3.  The Court’s assessment

53.  The Court reiterates that a person convicted at first instance cannot be regarded as being detained “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”, as specified in Article 5 § 3 (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000-XI). Accordingly, the period to be taken into consideration consisted of two separate terms, the first lasting from 8 April 2007, when the applicant was taken into custody, until 27 September 2011, when the Düsseldorf Court of Appeal, sitting as a first instance court, convicted the applicant; and the second period from 29 November 2012, when the Federal Court of Justice quashed the applicant’s conviction, until 4 February 2014, when the applicant was released from detention. The total period thus amounted to five years and eight months.

54.  The issue of whether a period of detention is reasonable cannot be assessed in abstracto (W. v. Switzerland, 26 January 1993, § 30, Series A no. 254-A). Whether it is reasonable for an accused to remain in detention must be assessed in each case, according to its special features. 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, among other authorities, W., cited above,  § 30; Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV; Chraidi v. Germany, no. 65655/01, § 35, ECHR 2006-XII; and Tinner v. Switzerland, nos. 59301/08 and 8439/09, § 49, 26 April 2011).

55.  It falls in the first place to the national judicial authorities to examine all the circumstances arguing for or against the existence of such a requirement and to set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article  5  para. 3 (see W., cited above, § 30).

56.  The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of 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, among other authorities, Labita, cited above, § 153 and Dzelili v. Germany, no. 65745/01, § 70, 10 November 2005).

57.  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 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.

58.   The Court observes that the domestic courts adapted the grounds for detention according to the results of the gathering of evidence. As from 17 May 2010, the Court of Appeal limited the grounds for detention to the alleged ordering of the attack during which two policemen were killed in Istanbul. The Court reiterates that, for there to be a reasonable suspicion, there must be facts or information which would satisfy an objective observer that the person concerned may have committed an offence (see Labita, cited above, § 155).

59.  In the instant case, the allegations against the applicant were primarily based on the statements made by witness S.G., according to which another witness (G.G.) had informed him that the applicant had given the order to carry out the attack in 1993, in the course of which two policemen were killed. The Court observes that S.G.’s reliability may be called into question in view of the fact that the witness was giving hearsay evidence and that he had benefited from a milder sentence as a reward for having collaborated with Turkish prosecution authorities. The Court reiterates in this context that it has previously considered that the sometimes ambiguous nature of statements of so-called “pentiti”, and the risk that a person might be accused and arrested on the basis of unverified allegations that are not necessarily disinterested, must not be underestimated (compare Labita, cited above, § 157). Accordingly, such testimony had to be corroborated by other evidence in order to justify continued pre-trial detention (see Labita, cited above, § 158). In the instant case, the evidence given by S.G. was corroborated by documentary evidence establishing that the applicant had been elected into the central committee of the DHKP-C and by evidence given by witnesses who had confirmed that the applicant held a leading position in the terrorist organisation at the relevant time. In contrast to the Labita case, it thus cannot be said that the Court of Appeal relied exclusively on testimony given by a witness who had been rewarded for having collaborated with prosecution authorities. In the light of these considerations, the Court accepts that there persisted a reasonable suspicion against the applicant throughout the proceedings.

60.  The Court further accepts that the danger of the applicant’s absconding persisted, given that he did not have a fixed residence in Germany, that he did not have sufficient social ties to ensure his appearance before the criminal court, that another Chamber of the Court of Appeal had allowed for his extradition to Turkey and that, according to intelligence information, a leader of the terrorist organisation had ordered that the applicant be taken out of the country immediately if he were released from detention. Consequently, there were relevant and sufficient grounds for the applicant’s continued detention.

61.  It remains to be ascertained whether the judicial authorities displayed “special diligence” in the conduct of the proceedings. The Court notes, at the outset, that the present case relates to serious offences, including two counts of murder committed in the context of terrorist attacks carried out in Turkey. The Court has previously acknowledged that States combating crime on an international scale may be faced with extraordinary difficulties (see Chraidi, cited above, § 37; and Tinner, cited above, § 62). The Court further observes that the applicant did not contest that the overall length of the criminal proceedings and, as a consequence, of his pre-trial detention, was primarily caused by the difficulties of gathering evidence by way of letters rogatory. Furthermore, the applicant contributed to the length of the proceedings by requesting the taking of evidence before the Court of Appeal to be re-opened. While the applicant was entitled to make use of his procedural rights, any consequential lengthening of proceedings cannot be held against the State (see, among other authorities, König v. Germany, 28 June 1978, § 103, Series A no. 27). The fact that the first instance judgment given by the Court of Appeal on 21 November 2008 was quashed by the Federal Court of Justice does not reflect a lack of special diligence, as this decision was not based on any grave procedural error committed by the lower court, but on a divergence in the assessment of evidence.

62.  The Court further observes that the applicant did not contest the Government’s argument that the Court of Appeal had to await the result of several requests by letters rogatory before pursuing the examination of the case. It follows that the hearings could not take place before the Court of Appeal at shorter intervals. In this context the Court notes that delays in criminal procedures within the framework of international anti-terror laws are unavoidable due to difficulties in collecting evidence in different countries. Nevertheless, a pro-active approach is necessary in order to speed up the procedure as far as possible. In the instant case, the Court observes that the Court of Appeal travelled four times to Turkey in order to follow up requests by letters rogatory. It thus cannot be said that the domestic courts failed to exercise special diligence in this context.

63.  In view of the above considerations and on the basis of all material in its possession, the Court cannot identify any periods of inactivity in the proceedings other than those occasioned by the need to gather evidence by way of letters rogatory.

64.  The Court further notes that the applicant’s continued detention was subject to repeated review. In each decision on the extension of the applicant’s detention, the Düsseldorf Court of Appeal and the Federal Court of Justice carefully examined the grounds for detention in the light of all evidence available to the courts. The Court observes, in particular, that the Court of Appeal decided on 4 February 2014 to release the applicant from detention on the grounds that it felt unable duly to expedite the proceedings as necessary in view of the overall duration of the applicant’s detention, thereby expressly referring to the principle of proportionality. In this respect, the present application falls to be distinguished from other cases in which the Court has found that the length of the detention on remand was not justified by the complexity of the proceedings (Erdem v. Germany, no.  38321/97, § 46 ECHR, 2001-VII (French original only), respectively that the domestic courts had failed to process criminal proceedings with special diligence (Čevizović v. Germany, no. 49746/99, § 55, 29 July 2004) and in which the applicants were not released from detention before the criminal proceedings had been terminated.

65.  In the light of these factors and, in particular, of the thorough examination of the grounds for detention by the domestic courts, the Court concludes that the length of the applicant’s detention, although considerable, can still be regarded as reasonable.

66.  There has accordingly been no violation of Article 5 § 3 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the complaint about the length of the applicant’s pre-trial detention admissible;

 

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

Done in English, and notified in writing on 6 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek                                                                Mark Villiger
       Registrar                                                                              President