ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 26.01.1993"w. ПРОТИВ ШВЕЙЦАРИИ" [рус. (извлечение), англ.]

prosecutor"s office and the indictments chamber will therefore, after carrying out the few investigative acts in respect of which a certain danger of collusion can still be presumed, but at the latest after a period of detention of two and a half years, have to consider the applicant"s release subject to appropriate substitute measures within the meaning of Article 111a of the Berne Code of Criminal Procedure. The case would be different only if specific indications of [W."s] intention to abscond were by then present. The risk of repeated offending ... would on the other hand probably not be of relevance as a ground for detention in the case of the applicant, who has no previous convictions."
18. On 3 August 1987 the applicant once more requested the indictments chamber to terminate his detention. This was refused in a decision of 4 September 1987.
The Federal Court dismissed the applicant"s public law appeal on 29 October 1987. In its opinion the slowing down of the investigation, noted since its last judgment (see paragraph 17 above), was not open to criticism, as the Swiss authorities had in the meantime taken over the proceedings brought against W. by the Munich public prosecutor"s office (see paragraph 9 above), and this had entailed additional work. In this respect the investigators could not be blamed either for having often questioned the applicant on these proceedings despite his refusal to make a statement; their sole aim had been to allow W. to exercise his rights of defence. No failure to observe the requirement of acting swiftly had resulted; rather it was the applicant"s attitude which amounted to delaying the investigation by any legal means. In view of the minimum sentence of five years" imprisonment which the applicant was likely to receive, the pre-trial detention of two years and seven months had in any event not yet reached the critical level.
The Federal Court also invited the investigating judges to reconsider, by the end of January 1988, the length of the detention in issue. On 31 January 1988 they took a decision to extend it ({Haftbelassungsbeschluss}).
19. The applicant"s sixth application for release had meanwhile been made to the indictments chamber on 2 December 1987. It had dismissed it on 9 December on the grounds that nothing had changed since the Federal Court"s last judgment of 29 October 1987 (see paragraph 18 above); it considered that there was still a danger of absconding and collusion. W. did not appeal against this decision.
20. On 1 February 1988 he once more requested his release. The indictments chamber refused this on 18 February, and he appealed to the Federal Court.
The Federal Court dismissed the appeal on 25 April 1988. It held that the indictments chamber had not breached the Constitution or the Convention in considering that there was still a danger of absconding; in his application of 1 February 1988, W. had moreover refused to provide a security.
Apart from the applicant himself, the authorities were also partly responsible for the delays in the investigation; they had put forward in explanation reasons - such as the taking over of the German file (see paragraph 9 above) and the different charges against the various co-accused - which they had already been aware of on 13 August 1987, when they said that the investigation would be completed in early 1988. These delays admittedly had not brought about an excessive prolongation of the deprivation of liberty in issue, but in the Federal Court"s opinion it was necessary to close the investigation as quickly as possible.
The Federal Court said:
"The judge deciding on detention may prolong the pre-trial detention only to the extent that its duration does not come too close to the sentence to be expected in the specific case; he must not, for example, take the possible maximum sentence as a reference point. Great attention must also be paid to this limit because the trial court might be inclined to take the length of pre-trial detention into account as one factor in determining the sentence. To this extent there is thus a sort of absolute maximum length of pre-trial detention ... . However, even the European Convention institutions allow detention for several years in cases which are both highly complex and also subject to heavy sentences ..."
In this instance the length of the detention had not yet reached the critical level, as the total sentence which could be expected was now considerably more than five years" imprisonment.
21. On 18 May 1988 the applicant submitted his eighth application for release; he supplemented this on 7 June 1988 by offering a security of a maximum of 30,000 Swiss francs (CHF). The indictments chamber dismissed the application on 27 June 1988, inter alia on the grounds that he had not given any information on the third party who would pay the money and that the sum appeared derisory in view of the size of the case and the personality of the defendant.
On a public law appeal by the applicant, the Federal Court quashed the decision on the grounds that Article 5 para. 4 (art. 5-4) of the Convention had been violated, as W. had not had an opportunity to reply to the arguments of the investigating judge and the cantonal attorney before the indictments chamber.
22. Rehearing the application, the indictments chamber on 6 September 1988 refused to release the applicant, who again appealed to the Federal Court. That

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