CASE OF DZELILI v. GERMANY
Violation of Art. 5-3;No separate issue under Art. 5-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - partial award
9. The applicant was born in 1971. When lodging his application, he was detained in Oldenburg, Germany. He is presently living in Hamburg, Germany. 10. On 6 July 1996 the applicant was arrested in Wilhelmshaven. On 7 July 1996 the Wilhelmshaven District Court issued a warrant of arrest against the applicant on the ground that there was a strong suspicion that he had committed five counts of robbery and one count of robbery in connection with attempted murder. 11. On 4 November 1996 the Oldenburg Public Prosecutor’s Office charged the applicant with attempted murder, aggravated robbery causing physical injury, and an offence under the Federal Weapons Act. 12. On 6 December 1996 the Oldenburg Regional Court dismissed the applicant’s motion to have Mr B. appointed as defence counsel. 13. On 8 January 1997 the Oldenburg Court of Appeal ordered that the applicant’s detention on remand be continued on the grounds that the strong suspicion that he had committed the crimes he was accused of persisted and that he was likely to abscond if released. 14. On 14 January 1997 the Oldenburg Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 6 December 1996. 15. On 18 February 1997 the Oldenburg Regional Court admitted the indictment without modifications and decided to open the trial against the applicant and two other accused. The trial started on 14 March 1997. 16. On 25 June and 26 September 1997 the Oldenburg Regional Court confirmed the arrest warrant of 7 July 1996. On 29 December 1997 the Oldenburg Regional Court dismissed the applicant’s request to suspend the arrest warrant of 7 July 1996. 17. On 22 May 1998, after the trial had taken place on fifty-five days with an average duration of ninety minutes, a lay assessor fell ill. As the designated substitute lay assessor had withdrawn previously, also due to illness, the trial had to begin anew. 18. On 28 May 1998 the Oldenburg Regional Court upheld the arrest warrant. It found that irrespective of the delays occasioned by the assessors’ illness, the applicant’s continued detention was proportionate given the serious nature of the crimes he was charged with. 19. On 2 June 1998 the trial was reopened with two substitute lay assessors. 20. On 22 June 1998 the Oldenburg Court of Appeal rejected the applicant’s appeal against the Oldenburg Regional Court’s decision of 28 May 1998 upholding the arrest warrant. 21. On 1 February 1999, the applicant alleged for the first time that he had been in Tetovo, in Macedonia, at the time of the offence. 22. On 10 February 1999 the Oldenburg Regional Court dismissed the applicant’s request to suspend the execution of the arrest warrant. It decided that investigations in Macedonia with regard to the applicant’s alibi be conducted by way of letters rogatory. 23. On 25 February 1999 the Oldenburg Regional Court, following the applicant’s appeal, refused to change its decision of 10 February 1999 (Nichtabhilfe der Beschwerde) and forwarded the appeal to the Oldenburg Court of Appeal. According to the Regional Court, the applicant’s continued detention on remand was not disproportionate. It reasoned that, if the applicant were convicted, his sentence would exceed the length of the detention on remand so far, due to the serious nature of the crimes and the damages and injuries suffered by the victim. As to the length of the proceedings, the Regional Court noted that there had been debates on whether to disjoin the applicant’s case from the proceedings against his co-accused, but the applicant had not seemed interested in speeding up the proceedings. 24. On 28 June 1999 the Oldenburg Regional Court again dismissed the applicant’s request to suspend the execution of the arrest warrant. On 12 July 1999 the Oldenburg Regional Court, following the applicant’s appeal, confirmed its decision of 28 June 1999. 25. On 23 July 1999 the Oldenburg Court of Appeal dismissed the applicant’s further appeal and confirmed the Regional Court’s decision of 28 June 1999. 26. On 10 September 1999 the Oldenburg Regional Court rejected the applicant’s request to dismiss his court-appointed defence counsel from office, as there was no appearance that the said counsel had not fulfilled his duties. It also found that the loss of trust alleged by the applicant and his counsel had not been substantiated. 27. On 17 September 1999 the Oldenburg Regional Court was informed by the Public Prosecutor’s Office that the investigations in Macedonia with regard to the applicant’s alibi by way of letters rogatory had not been carried out. The applicant stated that he would adduce one hundred defence witnesses, two at each hearing. 28. On 27 September 1999 the Oldenburg Regional Court rejected the applicant’s motion for bias. 29. On 31 January 2000 one of the four alibi witnesses from Macedonia who had been summoned by the Oldenburg Regional Court through diplomatic channels following the alibi of 1 February 1999, appeared and testified in court. 30. On 14 June 2000 the Oldenburg Regional Court dismissed the applicant’s request to suspend the execution of the arrest warrant. It found that, if released, the applicant very likely would abscond, given the circumstances of his arrest and the sentence which he risked incurring if found guilty as charged. The Regional Court noted that the applicant was residing illegally in Germany and that an expulsion order had been issued against him. It further observed that he had been about to abscond when he was arrested. Under these circumstances, the length of the applicant’s detention on remand was not disproportionate. The Regional Court included a detailed account of the trial, explaining the continued conduct of the proceedings, which disclosed that on several occasions witnesses could not be questioned by the court because they either did not come to the hearing or made use of their right not to testify. Furthermore, the applicant and his co-accused had, often later than necessary, filed numerous motions for evidence to be taken. It observed that at the present time, it was not possible to disjoin the applicant’s case from the cases of the other defendants, as they were accused of having committed the offences jointly. 31. On 15 August 2000 the Oldenburg Court of Appeal rejected the applicant’s appeal against the decision of 14 June 2000. It found that the length of time spent in detention on remand alone did not justify releasing the applicant and that his continued detention was proportionate. 32. On 26 September 2000 the Oldenburg Regional Court dismissed the applicant’s request to suspend the execution of the arrest warrant on the ground that contrary to his allegations, suspicion persisted that the applicant had committed the crimes he was accused of. It was still likely that he would abscond if released, given in particular the high prison sentence he risked incurring if found guilty according to the indictment. 33. On 1 November 2000 the Oldenburg Regional Court refused to change its decision of 26 September and forwarded the applicant’s appeal to the Oldenburg Court of Appeal. It noted that the applicant had caused some of the procedural delays himself by knowingly delaying the naming of defence witnesses. 34. On 16 November 2000 the Oldenburg Court of Appeal rejected the applicant’s appeal and confirmed the decision of 26 September 2000. 35. On 13 December 2000 the applicant lodged a complaint against the decisions of the Oldenburg Regional Court of 26 September 2000 and of the Oldenburg Court of Appeal of 16 November 2000 with the Federal Constitutional Court. He argued that his continued detention on remand, given, inter alia, the excessive duration of the trial before the Oldenburg Regional Court, was unconstitutional. 36. On 28 December 2000 the Oldenburg Regional Court had been informed that another twenty-three defence witnesses from Macedonia refused to appear in court. The translated protocols of their hearing, which had been conducted by way of letters rogatory by judges in Macedonia, were read out in court. 37. On 11 January 2001 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint of 13 December 2000. 38. On 20 March 2001 the Oldenburg Regional Court pronounced its judgment after having held an average of less than four hearings per month with an average duration of less than two and a half hours each. It convicted the applicant of aggravated robbery and dangerous bodily injury and acquitted him of attempted murder. It found that the applicant and his co-accused Cevizovic, who had both been masked and had been carrying weapons, had broken into L.’s house and had robbed L. by use of force. It sentenced the applicant to eight years’ imprisonment. In fixing the length of the sentence, the Regional Court took into consideration as a mitigating factor the inordinate length of his detention on remand and of the criminal proceedings. It refered in particular to the delay occasioned by the sickness of the lay assessors and the ensuing suspension of proceedings, and stated that this delay was not imputable to the applicant. 39. On 22 March 2001 the applicant lodged an appeal on points of law against the Oldenburg Regional Court’s judgment. 40. On 13 July 2001 the Oldenburg Regional Court dismissed the applicant’s request to suspend the execution of the arrest warrant. It argued that the applicant had been sentenced to eight years’ imprisonment and that his detention on remand was not yet disproportionate as he had not yet served two thirds of his prison sentence. 41. On 7 August 2001 the Oldenburg Court of Appeal dismissed the applicant’s appeal against the Regional Court’s decision of 13 July 2001. It found that the danger that the applicant might abscond if released still persisted. 42. On 17 August 2001 the applicant lodged another complaint with the Federal Constitutional Court. He complained that the Oldenburg Regional Court, in its decision of 13 July 2001, and the Oldenburg Court of Appeal, in its decision of 7 August 2001, had refused to suspend the execution of the arrest warrant. In particular, the said courts had not taken the length of his detention on remand and of the criminal proceedings adequately into consideration. 43. On 10 September 2001 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. 44. On 12 September 2001 the reasoned judgment of the Oldenburg Regional Court, comprising 201 pages, was deposited with its registry. 45. On 6 November 2001 the Oldenburg Regional Court decided to suspend the execution of the arrest warrant against the applicant. On 7 November 2001 the applicant was released from prison. 46. On 8 November 2001 the applicant substantiated his appeal on points of law. He argued, inter alia, that in its decision, the Regional Court had not taken the length of the criminal proceedings adequately into account and had not specified the effects of this length on the sentence. 47. On 17 April 2002 the Public Prosecutor’s Office filed its observations on the applicant’s appeal with the Regional Court. On 13 August 2002 the Public Prosecutor’s Office sent the case-files to the Federal Public Prosecutor. 48. On 27 November 2002 the Federal Public Prosecutor sent the case-files and his own motions concerning the applicant’s appeal to the Federal Court of Justice. 49. On 11 September 2003 the Federal Court of Justice, after a hearing, partly quashed the judgment of the Oldenburg Regional Court in respect of the applicant’s sentence and remitted the case to a different chamber of the Oldenburg Regional Court. 50. In the reasons of the judgment prepared on 22 October 2003, the Federal Court of Justice found that the duty to proceed expeditiously guaranteed by Article 6 § 1 of the Convention had been violated at least during the first half of the second trial by the Oldenburg Regional Court. It stated that the judges rehearing the case would have to assess in detail the reasons and exact length of these delays as well as further delays contrary to the rule of law which had occurred afterwards. They would then have to fix explicitly the sentence which would have been adequate without the delays in the proceedings and the actual sentence as mitigated because of these delays, thereby precisely assessing the amount of compensation granted. 51. On 13 April 2004 the Oldenburg Regional Court quashed the arrest warrant against the applicant. 52. On 16 August 2004 the Regional Court opened the new trial against the applicant. On 2 September 2004, after a total of four hearings, it sentenced the applicant to six years and six months’ imprisonment for the crimes of aggravated robbery and dangerous bodily injury he had already been finally convicted of. It suspended on probation the remainder of the applicant’s sentence which he had not yet served in detention on remand. 53. In its reasons for fixing the said prison sentence, the Regional Court found that, having regard to all factors aggravating and mitigating the applicant’s guilt, it would have sentenced the applicant to nine years’ imprisonment if the proceedings had been terminated within a reasonable time. However, the applicant’s right under Article 6 § 1 of the Convention to a hearing within a reasonable time had been violated in the proceedings against him, which necessitated the reduction of his sentence. 54. The Regional Court argued in particular that in the criminal proceedings as a whole there had been a total delay of three years and eleven months which was imputable to the judicial authorities. In particular, it was attributable to them that the initial trial before the Oldenburg Regional Court had to begin anew after some fourteen months, because a lay assessor had fallen ill. 55. The Regional Court further found that in the second trial before the Oldenburg Regional Court, there had been a total delay of sixteen months and two weeks for which the judicial authorities were responsible. It listed in detail the exact periods in which the proceedings had not been conducted within a reasonable time in this respect. As the courts were understaffed, it had in fact not been possible to conduct the proceedings more expeditiously, but this was not the applicant’s fault. However, the applicant himself had also caused considerable delays in these proceedings. He had alleged for the first time only on 1 February 1999 that he had been in Macedonia at the time of the offence, and had subsequently named numerous defence witnesses resident in Macedonia in an attempt to establish his false alibi. The court found that the slow execution of the letters rogatory by the foreign authorities to verify the applicant’s alibi was also imputable to the German judicial authorities. Despite this, the applicant’s choice of the points in time and way of lodging motions for evidence to be taken had contributed significantly to the total duration of the proceedings. 56. Furthermore, the Regional Court found that there had been a total delay of eleven months in the proceedings before the Federal Court of Justice which were imputable to the judicial authorities, notably the Public Prosecutor’s Office and the Federal Court of Justice itself. 57. Finally, the Regional Court observed that there had been a delay of five months in the current retrial proceedings. 58. The Regional Court further found that the delays caused during the second trial before the Oldenburg Regional Court, when the applicant had already been detained on remand for more than two years, were of a particular gravity. These delays also violated Article 5 § 3 of the Convention. 59. The applicant subsequently lodged an appeal on points of law against the Oldenburg Regional Court’s judgment delivered on 2 September 2004. 60. On 17 March 2005 the Federal Court of Justice dismissed the applicant’s appeal as ill-founded. It reasoned in particular that in the Regional Court’s findings concerning the specific delays in the proceedings there was merely a mistake for the benefit of the applicant. It argued that the illness of two lay assessors in the first trial before the Oldenburg Regional Court had caused an unavoidable interruption of the proceedings. The loss of time caused thereby could not be qualified as a delay within the meaning of Article 6 § 1 of the Convention. Apart from that, the Federal Court of Justice agreed with the periods of time determined by the Regional Court in which the applicant’s proceedings had not been conducted with the necessary diligence. 61. As regards the delays caused by the retrial in the Oldenburg Regional Court after the remittal of the case, the Federal Court of Justice stressed that it had been correct merely to take into consideration the actual delays imputable to the judicial authorities. The right to lodge an appeal on points of law served to protect the applicant’s rights. The fact as such that the Regional Court’s judgment had partly been quashed on appeal did not, therefore, necessitate treating the whole duration of the retrial as a delay within the meaning of Article 6 of the Convention. Only in cases in which a lower court had made a significant error of law a different conclusion might be called for. However, even if the whole duration of the retrial before the Oldenburg Regional Court were to be treated as a delay imputable to the judicial authorities within the meaning of Article 6 of the Convention, the total reduction of the applicant’s sentence, having regard to the brutality of his crime, would be adequate. 62. On 17 May 2005 (decision served on 22 May 2005) the Federal Court of Justice dismissed the applicant’s complaint that he had not been adequately heard as ill-founded. 63. On 22 July 2005 the applicant lodged a complaint with the Federal Constitutional Court. He claimed that the length of his detention on remand and the length of the criminal proceedings against him had violated his rights guaranteed by the Basic Law. The proceedings are currently pending in the Federal Constitutional Court.