36 BVerfGE 264 (1973)

{Translator's Note:

Some terms were difficult to translate and I chose to stick to the following translations:

1. Eroeffnung des Hauptverfahrens. This is the date on which a court opens a trial, in the following case on the request and after investigations of the District Attorney. I translated it with "opening of the main trial".

2. Begin des Hauptverfahrens. This is he date when the parties make their opening statements in the court room. I translated it with "begin/commencement of the main trial".

3. Schwurgericht. This is a court within a District Court that deals with criminal cases. I translated it with "District Court in criminal matters".

4. Untersuchungshaft. This is imprisonment before a final sentence has been articulated. No corrective work is being performed on the inmates during this time. I translated it with "detention/imprisonment while awaiting trial".

[Facts:

This case decides a constitutional challenge to Section 121.1. of the Criminal Law Procedure Rules (Strafprozessordnung, hereafter CLPR). Section 121.1. regulates the length someone may be kept in detained while awaiting trial (Untersuchungshaft) without there having been a court sentencing that person to a prison term. Section 121.1. reads that for the same act someone may not be held for longer than six months unless a longer time can be justified. Section 121.1. then lists three justifications--special difficulties with the investigations, special volume of the investigations, or some other important reason which renders a final court decision impossible within six months.

The petitioner was put into prison on March 28, 1972. He was accused of having caused physical injury with deadly consequences to someone (Koerperverletzung mit Todesfolgen). The reason for the imprisonment was the danger that he may flee. The main trial was opened by the court on March 1, 1973. The setting of the date for commencement of the main trial was delayed first due to further investigations and then due to an overburdening of the District Court in criminal matters (Schwurgericht). In mid-May 1973 the petitioner applied to be released from prison. The District Court in Duesseldorf refused to do so on June 7, 1973. The District Court gave a procedural reason for why the delay was not in violation of the law. Moreover it argued that an overburdening of the District Court in criminal matters constitutes an important reason to delay the trial within the meaning of 121.1. of the CLPR. The petitioner appealed to this decision. However, the High Court of Appeals in Duesseldorf affirmed the decision and reasoning of the District Court on July 18, 1973. In the affirmation of the District Court's decision, the High Court of Appeals estimated that the trial for the petitioner would commence around December 1973/January 1974. On August, 20, 1973, the date for the commencement of the trial was finally set for October 30, 1973. The petitioner was sentenced to four years and six months on November 22, 1973. Before that, he filed a constitutional complaint against the two court decisions refusing to release him from prison. This decision was handed down on December 12, 1973.

In his constitutional complaint the petitioner maintained that the two decision of the District Court and the High Court of Appeals in Duesseldorf violate his right from Article 2.2. second sentence of the Basic Law. He argued that his right to personal liberty was violated from March 1973 onwards, because the investigations were completed and the main trial opened, but the authorities failed to set a date for the commencement of the main trial and kept him detained. Moreover, he rejected the substance of the procedural argument by the two courts but emphasized that even if that argument had merit it could not override his right to personal liberty.

The court then summarized statements by the Federal Minister of Justice and by the Minister of Justice from North Rhine-Westfalia, the state of which Duesseldorf is the capital. The Federal Minister of Justice supported the argument of the petitioner that an overburdening of the courts with work does not constitute an important reason within the meaning of section 121.1. of the CLPR. The Minister of Justice from North Rhine-Westfalia supported the decisions of the two courts not to release the petitioner.

Issue:

Is it a violation of the petitioner's right to personal liberty from Article 2.2. second sentence of the Basic Law, if a non-short-run overburdening of the courts with work constitutes an "important reason" within the meaning of Section 121.1. of the CLPR?

Holding by the Second Senate:

Yes, it is.

Discussion:]

B.

I.

The constitutional complaint is permissible. It is also justified.

The challenged decisions violate the Basic Right of the petitioner from Article 2.2. second sentence of the Basic Law. The interpretation of Section 121.1. of the CLPR [on which the two decisions are based] is not in harmony with the constitutionally guaranteed protection of the personal liberty of the individual.

1. Article 2.2. second sentence guarantees the liberty of the person--however, not without boundaries. The liberty of the person, however, [in its function] as a basis of the general legal position (allgemeine Rechtsstellung) and the right to free development of the personality of the citizen, has a high rank among the Basic Rights. Therefore, the locking up of an accused [person] into prison may only be ordered and maintained pursuant to a law if matters of the general well-being [which outweigh the personal right] compellingly necessitate [such an action]. Among the matters of the general well-being, against which the right to liberty of the accused [person] under certain circumstances must step back, are the undeniable needs of effective criminal prosecution. [An effective criminal prosecution] would in many cases not be possible, if it were [impossible] for the criminal prosecution agencies, to arrest a presumed perpetrator before the sentencing and keep him imprisoned until the end of the criminal trial. A justifiable solution of this conflict of basic norms [which are] important for the state bound by justice (Rechtsstaat) can only be achieved if the limitations of freedom, which are necessary and useful from the perspective of criminal prosecution, are being [scrutinized] with the right to liberty of the accused and not yet convicted person. This means that [one] has to weigh both legal values, [and when doing that, one has] to consider that the principle of proportionality--also independent of the expected sentence--sets boundaries for the length of the detention while awaiting the trial. When doing the balancing, the circumstance demands attention, that with increasing length of the detention while awaiting trial, the weight of the right to liberty relative to the interest of an effective criminal prosecution can increase:

If the accused is not found guilty, than the damage which was caused by the [preventive detention]--disregarding the financial rights the law on reparations for criminal prosecution measurements grants--is in its nature irreparable. If, on the other hand, [the accused] gets sentenced to a prison term, then the prison term either cannot or can only partly be executed. Since, according to Section 60 of the Criminal Code, the time spend in prison while awaiting trial [has to be subtracted from] the sentenced prison term, [there] remains, in cases of very long time spend in prison while awaiting trial, during which the accused [receives no corrective treatment], not rarely no sentence and often only a short sentence, which is too short to render possible a sensible and promising execution of the sentence. Facing these circumstances, the constitutional balancing between the duty of the state to prosecute crimes and the right to liberty of the accused changes the longer the detention while awaiting trial lasts.

2. This is being taken into account by Section 121.1. of the CLPR in so far as [that section] generally limits the detention while awaiting trial for one act to six months and grants exceptions only to a limited extent.[The] prerequisite [for an exception] is that special difficulties or special volume of the investigations or another important reason do not yet allow for a sentence and justify a continuation of the detention while awaiting trial. These circumstances for exceptions are, as is evident from the wording [of Section 121.1. of the CLPR] and is affirmed by the legislative history, to be construed narrowly.

The interpretation of the regulation of ordinary law is, however, the duty of the generally responsible courts; [the interpretation] is not accessible to constitutional review to the full extent. This is also the case if the task imposes itself to find the meaning of the legal term "important reason" by the recognized methods and means of interpreting norms (Normeninterpretation). The Federal Constitutional Court, however, has [the duty] to check whether the interpretation of this term by the courts is not based on a generally incorrect view of the meaning and scope of the basic right of personal liberty and imposes upon the regulation, under disregard of other interpretational possibilities, an unconstitutional meaning. The duty to interpret in conformity of the constitution demands, [in cases of] several possible, according to wording and aim of a law, interpretations, of which one leads to an unconstitutional, the other to a constitutional result, to prefer the one which is in accord with the Basic Law.

If an "important reason" within the meaning of Section 121.1 of the CLPR is found, it remains to be checked, whether a continuation of the detention while awaiting trial is justifiable under the principle of proportionality.

3. According to these principles the interpretation put forth by the District Court and High Court of Appeals of Section 121.1. of the CLPR cannot be maintained [from a constitutional perspective]. Both courts found it an "important reason" if the overburdening of a District Court in criminal matters leads to [the situation] that between the opening of the main trial and the commencement of the main trial a much longer time-span passes, than would be necessary for a regular preparation of the trial. The challenged decisions do not make clear whether, in the opinion of those courts, it was impossible to address the overburdening with organizational measurements. Clarity on this matter especially does not emerge from the comment of the High Court of Appeals [that the overburdening of the District Court with criminal matters could not have been addressed, following a Federal High Court decision, by establishing another court (Schwurgericht) in the District Court to deal with criminal cases. This is the case] because there are other ways and means to prevent and remedy--as will be shown later--the overburdening of a District Court in criminal matters. This question need not be addressed though, because the decision does not depend on it.

a) The overburdening of a District Court with criminal matters is in the light of Article 2.2. second sentence of the Basic Law not an "important reason", if, within the available means of the court by way of personal and equipment [reallocation] the possibility exists, to ensure the [meeting of all trial deadlines set in regulations] by organizational measurements, [and], to especially avoid that in cases of detention while awaiting trial, after the opening of the main trial the commencement of the main trial gets significantly delayed. [Next the Federal Constitutional Court suggests in detail some organizational measurement by which a District Court could assure that no overburdening of the District Courts in criminal matters happens.]

If, in the case of a significant delay of the commencement of the main trial in a criminal case in front of a District Court, [the delay is due to the fact that] these organizational measurements were not fully implemented, then this alone already renders the continued execution of detention while awaiting trial in excess of the time necessary to prepare for the trial unconstitutional. The Federal Constitutional Court has already articulated that the execution of a detention while awaiting trial, the length of which significantly goes beyond the deadline of Section 121.1. of the CLPR, violates Article 2.2. second sentence of the Basic Law, if the [violation of the deadline] was caused by the fact that criminal prosecution authorities and the courts did not take all bearable measurements to bring the investigations to an end as fast as possible and to bring about a court decision on the acts the accused [is being held for]. The same must, however, also hold if the reason for [the violation of a deadline] lies therein, that after the opening of the main trial, the commencement of the main trial, in a case ready to be tried, gets significantly delayed as a result of avoidable, organizational mistakes or omissions at court.

b) The not solely short-run overburdening of a District Court in criminal matters is, due to the value-setting meaning of Article 2.2. second sentence of the Basic Law, even then not an "important reason which justifies the continued detention while awaiting trial", if it is due to a [workload of cases in front of the court] which cannot be dealt while [complying with all the deadlines] even though all organizational means and ways at court have been optimally used. [If such a workload of cases causes] that a criminal case after the opening of the main trial does not come to trial for a while--in the case of the petitioner more than eight months--then the accused may not be kept detained, after the deadline set by Section 121.1. of the CLPR has passed by, for longer than the proper preparation of the trial would require. The contrary opinion, held--with some restrictions--by several High Courts of Appeal, misjudges the meaning and scope of the basic right of personal liberty and insinuates the regulation of Section 121.1. of the CLPR [has] a meaning contrary to the constitution.

The interpretation of the term "important reason" [from Section 121.1. of the CLPR] must--in accordance with the principles developed above--guide itself at the kind of result which a balancing would produce, [a balancing] at which the right to liberty of the accused, due to the six months the detention already lasted, meets the state's interest to criminal prosecution with increased weight. This balancing, however, results [in the conclusion] that an overburdening of a court may not justify a taking precedence of the state's duty to prosecute crimes over the right of the accused to liberty.

The detained accused [is not responsible] if his criminal case does not come to trial within adequate time, because the court lacks the personnel and equipment which would be necessary to [deal with the workload in a legally correct manner]. This alone, however, is not decisive. [This is so] because the same is the case in other circumstances--for instance if an indispensable party to the trial is unavailable due to illness--which are beyond the influence of the accused and nevertheless can be important reasons for the continuation of detention while awaiting trial. This aspect, however, gains significance in relation with the fact that an overburdening of the courts--contrary to unforeseeable coincidences or events of fate--falls within the realm of responsibility of the community which forms the state (staatlich verfasste Gemeinschaft). The state relative to the detained accused person [cannot justify] that he does not furnish his courts in a manner which is necessary to conclude the cases [in front of the courts without any unavoidable delay]. It is the duty [of the state], within the framework of what is bearable, to take all measurements which are useful and necessary to prevent an overburdening of the courts and, [in cases where and overburdening occurs, to remedy that in a timely fashion]. [The state] has to finance, provide, and use the necessary means--personnel and equipment--[for the achievement of that goal]. This task follows from the state's duty to offer justice (Justizgewaehrung), which is part of the principle of the state bound by justice (Rechtsstaatsprinzip) of Article 20.3. of the Basic Law. The accused may not be burdened to accept a longer detention while awaiting trial than adequate for the trial, just because the state failed to comply with its duty [to offer justice]. This does not exclude that in individual cases other "important reasons" may be present, which justify a continuation of the detention while awaiting trial.

II.

Accordingly, the unconstitutionality of the challenged decisions has to be found. Their reversal, however, cannot be considered, because they [are not current anymore], after the petitioner--although the decision is not yet final [since he appealed]--got sentenced to a term of four years and six months and the District Court after it declared the sentence ordered anew the continuation of the detention while awaiting trial.

III.

The necessary cost for the petitioner has to be compensated (Section 34.4. of the Federal Constitutional Court Regulations). The duty to compensate falls upon the state of North Rhine-Westphalia, to which the reprimanded violation of a basic right can be attributed.

[The decision was signed by all eight Judges. Three of the Judges only concurred in the result, not in the reasoning.]

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