BORGMANN v. GERMANY
Inadmissible
Peer Lorenzen
The applicant, Mr Matthias Borgmann, is a German national who was born in 1948 and lives in Berlin. He was represented before the Court by Mr Kaleck, a lawyer practising in Berlin. On 17 March 2000, the Federal Court of Justice issued an arrest warrant in respect of the applicant, who had been employed with the Technical University in Berlin, on the ground that he was strongly suspected of being member of a terrorist group called the Revolutionäre Zellen and that he had participated in various terrorist attacks during the period between 1985 and 1994. The Revolutionäre Zellen, which dissolved itself in 1995, was responsible for at least 186 terrorist attacks. Its regional branch in Berlin, the Berliner Zelle, was responsible for at least forty terrorist attacks, inter alia for attempts to explode the Wedding Social Welfare Office for Asylum Seekers and the victory column in Berlin as well as for attempted assassinations of the chief of the Aliens Office and a presiding judge of the Federal Administrative Court. On 19 April 2000, the applicant was put on detention on remand. On 30 October 2000, the Federal Prosecutor filed the bill of indictment against the applicant and three other indicted persons for membership of a terrorist organisation and the causing of an explosion in two instances. The bill of indictment was based on various items of evidence, among them the testimony of a privileged prosecution witness (Kronzeuge), the results of the preliminary investigations, the preliminary investigation against the above witness for the prosecution and subsequent measures under the Code of Criminal Procedure as well as further seized evidence. The main proceedings regarding the above charges commenced on 22 March 2001, but were subsequently adjourned until 17 May 2001 in order to join them to the proceedings against a further person. On 12 April 2001, the Berlin Regional Court dismissed the applicant’s motion to quash or set aside the arrest warrant of 17 March 2000. It found that there existed a strong suspicion that the applicant had committed the crimes of which he was accused and that he was likely to abscond if released, given the sentence which he risked incurring if found guilty as charged. The Berlin Regional Court noted that the applicant had stable social ties as he had been married since 1997, he was frequently in touch with his daughter who lived in England, and the dismissal from his job at the Technical University in Berlin had not yet become final. However, the Berlin Regional Court took the view that there was concern that the applicant could vanish abroad as he owned with his wife an estate in France where he could travel uncontrolled. His various skills could earn him a living there, and his extradition to Germany could not be taken for granted given the practice of the French authorities. Moreover, the current length of the detention on remand was not disproportionate to the expected prison sentence. On 23 May 2001, the Federal Court of Justice dismissed the applicant’s motion against the decision of the Berlin Regional Court of 12 April 2001. It found that neither the manner in which the proceedings had so far been conducted nor the adjournment until 17 May 2001 had been in violation of the obligation to proceed speedily (Beschleunigungsgrundsatz). The reasons given by the Federal Prosecutor for the adjournment were plausible, and the delay of the proceedings was still proportionate to the length of the applicant’s detention on remand. On 20 July 2001, the Berlin Regional Court ordered the continuation of the applicant’s detention on remand because both the strong suspicion and the reasons for detention persisted. On 23 August 2001, the Federal Court of Justice dismissed the applicant’s appeal against the decision of the Berlin Regional Court of 20 July 2001. It considered that there persisted strong suspicion which had not been dissipated by the evidence gathered during the main proceedings. The period of one year and four months which the applicant had so far spent in detention on remand had not eliminated the danger of the applicant’s absconding, nor had it made that detention disproportionate. Despite the considerable period since the crimes the applicant was charged with had been committed, the applicant’s probable sentence in view of their gravity and the fact that he had played a leading role in the terrorist organisation could justify the assumption that there was significant incentive to escape and that the continuation of the detention on remand was proportionate. On 25 September 2001, the Berlin Regional Court dismissed the applicant’s motion to quash, or alternatively to set aside, the arrest warrant. The Berlin Regional Court took the view that there persisted a strong suspicion that the applicant and four other persons had committed the terrorist attacks, which was supported by evidence collected in the main proceedings. It further held that there was still the danger of him absconding and that it was proportionate to continue the detention on remand given the gravity of the charges and the likely prison sentence. On 20 December 2001, the Federal Court of Justice dismissed the applicant’s appeal against the decision of the Berlin Regional Court of 25 September 2001. It referred to its earlier decision of 23 August 2001 and found that the applicant’s continued detention on remand was justified as the circumstances had not significantly changed since then. The Federal Court of Justice noted that it was not objectionable that the Berlin Regional Court had found that there persisted a strong suspicion of the applicant’s responsibility for the crimes. The Federal Court of Justice also held that the main proceedings had so far been conducted speedily which was appropriate in view of the applicant’s detention on remand. The complexity of the proceedings against several accused persons combined with the difficulty in establishing events planned with conspirative means by a terrorist group in the period between 1985 and 1994 had so far prevented the judgment from being delivered. The assessment of the reason for arrest and the proportionality of the detention on remand had not considerably changed since the Federal Court of Justice’s decision of 23 August 2001. The likely sentence of the applicant still exceeded the period of his detention on remand; hence there remained the danger of his absconding. Therefore, the continuation of the detention on remand was proportionate. On 11 February 2002, the Berlin Regional Court suspended the arrest warrant of 17 March 2000 and ordered the applicant instead to participate in the main proceedings, to submit his passport and not to leave the territory of the Federal Republic of Germany without prior consent by the court. The Berlin Regional Court found that, in view of a serious accident of the applicant’s son-in-law who needed intensive care, the danger of the applicant absconding was reduced to such a degree that the less far-reaching measures which had been ordered instead would satisfy the purpose of the detention on remand. The applicant was released on 12 February 2002. On 4 March 2002, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint against the decisions of the Berlin Regional Court of 25 September 2001 and the decision of the Federal Court of Justice of 20 December 2001. The applicant’s lawyer received the decision on 11 March 2002. On 18 March 2004, the Berlin Regional Court convicted the applicant of ringleadership of a terrorist organisation and of causing an explosion on two occasions and sentenced him to four years and three months’ imprisonment. In determining the sentence, the Berlin Regional Court took into account the length of the detention on remand and the length of the criminal proceedings as mitigating facts. The judgment has since become final. 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 to determine whether the arrest warrant is to be revoked or whether its execution is to be suspended in accordance with Section 116.” Section 230 of the Code of Criminal Procedure provides, inter alia: “No trial shall be held in respect of a person who is absent.”