CASE OF EREREN v. GERMANY
No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1955 and lives in Hagen in Germany. 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. 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 reopened 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. 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. 32. On 17 January 2013 the Düsseldorf Court of Appeal (no. III6 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.