CASE OF CHRAIDI v. GERMANY
Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);No violation of Art. 5-3;Not necessary to examine Art. 6-2;Remainder inadmissible
Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych
5. The applicant, Mr Yasser Chraidi, was born in 1959 in Lebanon. At the time of lodging his application, he was detained in Berlin. He is currently living in Lebanon. 6. On 1 August 1984 the Berlin Tiergarten District Court issued an arrest warrant in respect of 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 in respect of the applicant and five other suspects, born in Lebanon, Libya or Morocco. The court accused the applicant of having prepared, with others, a bomb attack at the “La Belle” discotheque 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 people had been killed and 104 seriously injured. 8. On 1 September 1992 the applicant was arrested by the police in Lebanon and was subsequently taken into detention with a view to extradition. 9. On 21 June 1994 a Lebanese court acquitted the applicant of 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 issued in 1990. 11. On 25 November 1996 the Berlin Court of Appeal ordered the applicant’s continued detention on remand. It held that the reasonable suspicion that the applicant had committed the offences with which he had been charged resulted, among other things, from the confession of one of the other suspects. The danger of his absconding still persisted because the applicant had been extradited to Germany only in May 1996 and had neither a fixed dwelling nor social ties in Germany which would prevent him from absconding if released. The court moreover referred to the lifelong prison sentence the applicant faced and underlined that more lenient preventive measures would not be suitable. Lastly, there had been no breach of the obligation to proceed speedily (Beschleunigungsgebot). 12. On 30 January 1997 the public prosecutor filed 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 continued detention on remand. 13. On 13 January 2000 the Berlin Regional Court rejected a request by the applicant 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 applicant’s 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 that decision. Concerning the suspicions as regards the applicant, the court pointed out that it was bound by the assessment of the Regional Court. Furthermore, the danger of the applicant’s absconding persisted in view of the lifelong prison sentence he faced. The objective of his detention on remand could accordingly not be accomplished by alternative, less radical, preventive measures. Although the applicant had been detained since as far back as 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 outweigh 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 were at risk. Moreover, given that the Regional Court had continuously held two hearings per week since November 1997, the length of the proceedings could not be considered disproportionate. 15. On 24 May 2000 the Federal Constitutional Court refused to admit a complaint by the applicant, without giving any reasons. Its decision was served on the applicant’s lawyer on 30 May 2000. 16. On 13 November 2001 the Berlin Regional Court convicted the applicant on 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 freezing of all Libyan State assets in United States banks. These measures had led to military intervention 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 by imprisonment for up to fifteen years and sentenced him to fourteen years’ imprisonment. When determining the sentence, the court took into account, among other things, the fact that the applicant’s detention on remand and the proceedings had lasted an unusually long time. It further determined that since 8 January 1994 the applicant had been detained in Lebanon with a view to extradition in connection with the present case. This period of detention was to be deducted from his prison sentence at a ratio of 1:3 until 30 April 1994 and at a ratio of 1:2 from 1 May 1994. The court moreover ordered the applicant’s continued detention. The judgment, which ran to 380 pages, was served on the applicant’s lawyer on 10 January 2003. 17. The Berlin Regional Court delivered its judgment after holding 281 hearings with an average of two hearings per week and having heard 169 witnesses. The hearings, which lasted on average 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 dismissed appeals on points of law by the applicant and the public prosecutor. 19. On 28 April 2005 the applicant was released. 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.”