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FIFTH
SECTION
CASE OF GROSSKOPF v. GERMANY
(Application
no. 24478/03)
JUDGMENT
STRASBOURG
21 October
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Grosskopf v.
Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Rait Maruste,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva,
Ganna
Yudkivska, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 28 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24478/03) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a German national, Mr
Ekkehard Alexander Grosskopf (“the applicant”), on 20
June 2003.
- The
applicant was represented by Mr R. Breuer, a lawyer practising in
Aachen. The German Government (“the Government”) were
represented by their Agent, Mrs A. Wittling-Vogel,
Ministerialdirigentin, of the Federal Ministry of Justice.
- The
applicant alleged, in particular, that his preventive detention
violated Article 5 § 1 of the Convention.
- On
13 September 2007 the President of the Fifth Section decided to give
notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1945 and is currently detained in Aachen.
A. Proceedings concerning the applicant’s
preventive detention
1. Background to the case
- On
17 May 1995 the Cologne Regional Court convicted the applicant on
three counts of attempted burglary as a member of a gang. Including
the sentence imposed for a previous conviction of attempted burglary,
the court fixed a cumulative sentence of seven years’
imprisonment and ordered the applicant’s preventive detention
pursuant to Article 66 of the Criminal Code (see paragraphs 27-28
below).
- The
Regional Court found that, having regard to his personality and to
his numerous previous convictions of burglary, the applicant had a
disposition to commit serious offences causing serious economic
damage and was therefore dangerous to the public. The applicant had
repeatedly declared that the burglaries he had committed, which had
been aimed at obtaining several ten thousand Deutschmarks and of
which he had made his living, were not immoral. As confirmed by a
psychiatric expert, the applicant, who was of at least average
intelligence, was therefore liable to reoffend. The judgment became
final on 10 February 1996.
- The
applicant served his full prison sentence until 18 February 2002.
Since 19 February 2002 the applicant has been in preventive
detention.
2. First set of proceedings
- On
6 February 2002 the Aachen Regional Court, sitting as a chamber for
the execution of sentences (Strafvollstreckungskammer),
decided that the applicant should be kept in preventive detention
following the end of his prison term on 18 February 2002. Relying on
Article 67c § 1 of the Criminal Code (see paragraph 29 below),
the court considered that his preventive detention was still
necessary in view of the objective of such detention.
- The
Regional Court, agreeing with the views taken by the director of
Aachen Prison and by the Public Prosecutor’s Office, found that
the applicant was very liable to reoffend and to commit serious
offences if released (Article 67d § 2 of the Criminal Code; see
paragraph 30 below). It noted that the applicant, who was represented
in the proceedings by a court appointed defence counsel but had
refused to participate in an oral hearing, had numerous previous
convictions of burglary for which he had spent already more than 26
years in prison. He had always made his living outside prison from
crime and had hardly worked in prison, arguing that the remuneration
for his work was insufficient. The applicant insisted that the police
had arrested him by having recourse to illegal methods of
investigation and that he had wrongfully been convicted. He thus
failed to accept that the court was bound by the findings in the
final judgment of the Cologne Regional Court. The applicant was free
to deny having committed the offences he was convicted of by that
final judgment in 1995, which as such did not mean that he risked
being found to be a recidivist. However, he refused to reappraise his
entire criminal past. The findings of the psychiatric expert
consulted by the Cologne Regional Court on the applicant’s
personality were therefore still valid. The fact that the applicant
could stay with his son or with a writer when released did not
warrant the conclusion that he would not reoffend on release.
- On
28 March 2002 the Cologne Court of Appeal, endorsing the reasons
given by the Aachen Regional Court, dismissed the applicant’s
appeal.
- On
17 May 2002 the applicant lodged a constitutional complaint with the
Federal Constitutional Court. He argued that his preventive detention
violated the right to liberty and the prohibition on punishment
without guilt under the Basic Law. His preventive detention also
breached the prohibition of torture in that it was aimed at
extracting from him a confession to the offences for which he had
been convicted in 1995. Moreover, the proceedings before the Regional
Court had been unfair because that court had refused to verify the
police methods of investigation leading to his arrest and conviction.
- By
a decision of 18 December 2002 (which the applicant received on 21
December 2002) the Federal Constitutional Court declined to consider
the applicant’s constitutional complaint (file no. 2 BvR
808/02).
3. Second set of proceedings
- On
21 February 2006 the Aachen Regional Court, in review proceedings
pursuant to Article 67d § 2 and Article 67e § 2 of the
Criminal Code (see paragraphs 30 and 31 below), allowed the Public
Prosecutor’s request and refused to suspend the applicant’s
placement in preventive detention on probation.
- Having
heard the applicant, represented by counsel, in person, the Regional
Court found that he was still liable to reoffend if released. It
referred to the findings in its previous decision of 24 February 2004
not to suspend the applicant’s placement in preventive
detention on probation and argued that there had been no developments
indicating that the applicant was now less likely to be recidivist.
His numerous previous convictions showed that he had chosen at an
early stage to make his living from crime. Having regard to the
report submitted by the director of Aachen Prison, who had opposed to
the suspension on probation of the applicant’s placement in
preventive detention, the Regional Court noted that since his
dismissal from his job as editorial journalist of the prison journal
for misuse of the computer made available for editing that journal,
the applicant was out of work due to his own fault. As the applicant
refused any therapy, there was no expert opinion on him and thus no
visible positive development.
- On
16 May 2006 the Cologne Court of Appeal, endorsing the reasons given
by the Regional Court, dismissed the applicant’s appeal. It
took the view that his preventive detention was covered by Article 5
§ 1 (a) of the Convention. It further confirmed that the
applicant’s final convictions could not be reviewed in the
proceedings at issue, but could only be subject of reopening
proceedings. Even assuming that the applicant, as he had claimed, had
been dismissed from his job as editing journalist of the prison
journal without good cause, this did not alter the fact that owing to
his disrespect for the property of others, he was liable to reoffend
if released. Whilst the applicant did not sell the house he owned
(valued at some EUR 250,000), he did not have at his disposal
the necessary funds to make his living so that there was a risk that
he would reoffend.
- On
5 June 2006 the applicant lodged a constitutional complaint with the
Federal Constitutional Court. He claimed that his detention, being a
preventive measure, violated his right to liberty. Moreover, it
breached the prohibition of torture in that it was aimed at
extracting from him a confession to the offences he had been
convicted of. The low remuneration for his forced labour disregarded
human dignity. The courts’ refusal to review the lawfulness of
his criminal convictions also violated Article 13 as the court
proceedings at issue were ineffective without doing so.
- On
21 June 2006 the Federal Constitutional Court declined to consider
the applicant’s constitutional complaint (file no. 2 BvR
1169/06).
B. Proceedings concerning the remuneration for the
applicant’s prison work
- While
in preventive detention, the applicant worked for a private company
between September 2002 and January 2004 and as editorial journalist
for the prison journal between February and September 2004. He was
paid an average of some EUR 300 net per month by the State.
- On
3 December 2002 the North Rhine-Westphalia Office for the Execution
of Sentences (Justizvollzugsamt) dismissed the applicant’s
objection to his wage slip. It noted that the applicant’s
remuneration was in accordance with the rates fixed in the Execution
of Sentences Act. It argued that his wage was not unreasonably low,
given that the remuneration included other advantages and that the
Land paid contributions to the unemployment insurance and did
not deduct a contribution to the cost of keeping him in prison from
his wages.
- On
25 February 2003 the Aachen Regional Court dismissed as ill founded
the applicant’s request for judicial review of the low
remuneration for his prison work, for which he claimed some
EUR 1000 1500 net per month, and of the failure of the
prison authorities to disclose the financial agreement between them
and the private company he worked for. It took the view that the
remuneration for prison work, which had recently been raised by 80
per cent in order to comply with a judgment of the Federal
Constitutional Court of 1 July 1998, was constitutional. Endorsing
the reasons given by the North Rhine-Westphalia Office for the
Execution of Sentences, the court argued that if prisoners received a
higher remuneration, private companies might no longer place any
orders in view of the considerably lower productivity of prisoners
and prisoners would then not be able to work at all. As the
applicant’s remuneration was lawful, he could not claim the
disclosure of the terms of the contract concluded between the prison
authorities and the private company.
- On
15 May 2003 the Hamm Court of Appeal dismissed the applicant’s
appeal on points of law as inadmissible. It found that a review of
the Aachen Regional Court’s decision was not necessary for the
development of the law or in order to secure consistency in the
case-law.
- On
13 July 2003 the applicant lodged a constitutional complaint with the
Federal Constitutional Court. He argued that the unduly low
remuneration for his prison work was degrading and disregarded human
dignity. Moreover, the failure of the prison authorities to disclose
the wage paid to them by the private company for his work breached
his right to effective judicial review.
- On
30 September 2003 the Federal Constitutional Court declined to
consider the applicant’s constitutional complaint (file no. 2
BvR 1177/03).
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
comprehensive summary of the provisions of the Criminal Code and of
the Code of Criminal Procedure governing the distinction between
penalties and measures of correction and prevention, in particular
preventive detention, and the making, review and execution in
practice of preventive detention orders, is contained in the Court’s
judgment in the case of M. v. Germany
(no. 19359/04, §§ 45-78, 17 December 2009). The
provisions relevant in the present case can be summarised as follows:
A. The order of preventive detention by the sentencing
court
- The
German Criminal Code distinguishes between penalties (Strafen)
and so called measures of correction and prevention (Maßregeln
der Besserung und Sicherung) to deal with unlawful acts.
Preventive detention (Article 66 et seq. of the Criminal Code)
is classified as a measure of correction and prevention. The purpose
of such measures is to rehabilitate dangerous offenders or to protect
the public from them. They may be ordered for offenders in addition
to their punishment (compare Articles 63 et seq.). They must,
however, be proportionate to the gravity of the offences committed
by, or to be expected from, the defendants as well as to their
dangerousness (Article 62 of the Criminal Code).
- The
sentencing court may, at the time of the offender’s conviction,
order his preventive detention under certain circumstances in
addition to his prison sentence if the offender has been shown to be
dangerous to the public (Article 66 of the Criminal Code).
- In
particular, the sentencing court orders preventive detention in
addition to the penalty if someone is sentenced for an intentional
offence to at least two years’ imprisonment and if the
following further conditions are satisfied. Firstly, the perpetrator
must have been sentenced twice already, to at least one year’s
imprisonment in each case, for intentional offences committed prior
to the new offence. Secondly, the perpetrator must previously have
served a prison sentence or must have been detained pursuant to a
measure of correction and prevention for at least two years. Thirdly,
a comprehensive assessment of the perpetrator and his acts must
reveal that, owing to his propensity to commit serious offences,
notably those which seriously harm their victims physically or
mentally or which cause serious economic damage, the perpetrator
presents a danger to the general public (see Article 66 § 1).
B. The order for execution of the placement in
preventive detention
- Article
67c of the Criminal Code governs orders for the preventive detention
of convicted persons which are not executed immediately after the
judgment ordering them becomes final. Paragraph 1 of the Article
provides that if a term of imprisonment is executed prior to a
simultaneously ordered placement in preventive detention, the court
responsible for the execution of sentences (that is, a special
Chamber of the Regional Court composed of three professional judges,
see sections 78a and 78b(1)(1) of the Court Organisation Act) must
review, before completion of the prison term, whether the person’s
preventive detention is still necessary in view of its objective. If
that is not the case, it suspends on probation the execution of the
preventive detention order; supervision of the person’s conduct
(Führungsaufsicht) commences with suspension.
C. Judicial review of the placement in preventive
detention
- Article
67d of the Criminal Code, in its versions in force as of 31 January
1998, lays down rules on judicial review of the placement in
preventive detention. If there is no provision for a maximum duration
of the measure of correction and prevention or if the time-limit has
not yet expired, the court (i.e. the chamber responsible for
the execution of sentences) shall suspend on probation further
execution of the detention order as soon as it is to be expected that
the person concerned will not commit any further unlawful acts on his
or her release. Suspension shall automatically entail supervision of
the conduct of the offender (paragraph 2 of Article 67d).
- Pursuant
to Article 67e of the Criminal Code the court (i.e. the
chamber responsible for the execution of sentences) may review at any
time whether the further execution of the preventive detention order
should be suspended on probation. It is obliged to do so within fixed
time-limits (paragraph 1 of Article 67e). For persons in preventive
detention, this time limit is two years (paragraph 2 of Article
67e).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that his placement in preventive detention since
19 February 2002 breached his right to liberty as provided in Article
5 § 1 of the Convention, which, in so far as relevant, reads as
follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court; ...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants; ...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
- The
applicant argued that he was deprived of his liberty in breach of
Article 5 § 1 since he had been placed in preventive detention.
Such detention was not covered by any of the sub-paragraphs (a) to
(f) of Article 5 § 1. Preventive detention did not occur
“after conviction” within the meaning of sub-paragraph
(a) of Article 5 § 1 because it was not a sanction for an
offence committed by a perpetrator – that sanction was the term
of imprisonment imposed alone – , but a purely preventive
measure aimed at averting future offences and at protecting the
public from dangerous offenders. However, as the Court had found in
its judgment of 6 November 1980 in the case of Guzzardi v.
Italy, a person’s deprivation of liberty for purely
preventive purposes was incompatible with Article 5 § 1 (a).
Moreover, the applicant submitted that his detention was not lawful
because the sentencing courts were not authorised to order a
deprivation of liberty twice for the same offence, namely both a term
of imprisonment and preventive detention.
- In
the applicant’s view, his preventive detention was also not
covered by sub-paragraph (c) of Article 5 § 1 as being detention
“reasonably considered necessary to prevent his committing an
offence”. That provision only covered detention pending trial
effected for the purpose of bringing a person before a court and not
preventive detention. Likewise, his preventive detention did not
serve any of the preventive purposes listed in sub paragraph (e)
of Article 5 § 1.
- The
applicant further submitted that in view of the lack of adequate
offers for therapy in Aachen Prison, it was impossible for him to
prove that he was no longer dangerous to the public. Moreover,
despite its objective to rehabilitate dangerous offenders, the
execution of preventive detention in practice hardly differed from
that of a prison sentence. In particular, persons in preventive
detention did not have any significant privileges compared to persons
serving a term of imprisonment.
(b) The Government
- The
Government took the view that the applicant’s preventive
detention complied with Article 5 § 1. The applicant’s
detention was covered by sub-paragraph (a) of Article 5 § 1 as
being detention “after conviction” as it had been ordered
by the judgment of the Cologne Regional Court of 17 May 1995 together
with his conviction of attempted burglary.
- The
Government argued that there was a sufficient causal connection
between the applicant’s criminal conviction and his preventive
detention. In their decisions taken in 2002 and 2006, the Aachen
Regional Court and the Cologne Court of Appeal, having regard to the
report drawn up by a psychiatric expert, convincingly found that, if
released, the applicant was likely again to commit offences against
the property of others similar to the offences he had previously been
convicted of. The courts reached the conclusion that the applicant’s
preventive detention was still necessary in view of the objective of
such detention having regard to the applicant’s personality,
his previous convictions, the weight of the legal interests at stake
in case of recidivism, the applicant’s conduct in prison and,
in particular, his failure to reappraise his criminal past, as well
as his perspectives upon release.
- The
Government further considered that it had been justified and
proportionate for the domestic courts to order the applicant’s
preventive detention under the very restrictive conditions laid down
in Article 66 of the Criminal Code in order to protect the public
from further serious thefts he was liable to commit if released. They
stressed that the execution of preventive detention orders differed
significantly from the enforcement of prison sentences as, compared
to ordinary prisoners, persons in preventive detention had a number
of privileges.
- Moreover,
in the Government’s submission, the applicant’s
preventive detention was also covered by the wording of sub-paragraph
(c) of Article 5 § 1 as it could be considered as detention of a
person which was “reasonably considered necessary to prevent
his committing an offence”. In exceptional cases, preventive
detention might further be justified in order to prevent the
spreading of infectious diseases within the meaning of sub paragraph
(e) of Article 5 § 1.
2. The Court’s assessment
(a) Recapitulation of the relevant
principles
- The
Court reiterates that Article 5 § 1 sub-paragraphs (a) to (f)
contain an exhaustive list of permissible grounds for deprivation of
liberty, and no deprivation of liberty will be lawful unless it falls
within one of those grounds (see, inter alia, Guzzardi v.
Italy, 6 November 1980, § 96, Series A no. 39; Witold
Litwa v. Poland, no. 26629/95, § 49, ECHR 2000 III;
and Saadi v. the United Kingdom [GC], no. 13229/03, § 43,
ECHR 2008 ...). However, the applicability of one ground
does not necessarily preclude that of another; a deprivation of
liberty may, depending on the circumstances, be justified under one
or more sub-paragraphs (see, among other authorities, Eriksen v.
Norway, 27 May 1997, § 76, Reports of Judgments and
Decisions 1997 III; Erkalo v. the Netherlands, 2
September 1998, § 50, Reports 1998 VI; and Witold
Litwa, cited above, § 49).
- For
the purposes of sub-paragraph (a) of Article 5 § 1, the word
“conviction”, having regard to the French text
(“condamnation”), has to be understood as
signifying both a finding of guilt after it has been established in
accordance with the law that there has been an offence (see Guzzardi,
cited above, § 100), and the imposition of a penalty or other
measure involving deprivation of liberty (see Van Droogenbroeck v.
Belgium, 24 June 1982, § 35, Series A no. 50).
- Furthermore,
the word “after” in sub-paragraph (a) does not simply
mean that the “detention” must follow the “conviction”
in point of time: in addition, the “detention” must
result from, follow and depend upon or occur by virtue of the
“conviction” (see Van Droogenbroeck, cited above,
§ 35). In short, there must be a sufficient causal connection
between the conviction and the deprivation of liberty at issue (see
Weeks v. the United Kingdom, 2 March 1987, § 42,
Series A no. 114; Stafford v. the United Kingdom [GC], no.
46295/99, § 64, ECHR 2002 IV; Waite v. the United
Kingdom, no. 53236/99, § 65, 10 December 2002; Kafkaris
v. Cyprus [GC], no. 21906/04, § 117, ECHR 2008 ...;
and M. v. Germany, no. 19359/04, § 88, 17 December
2009). However, with the passage of time, the link between the
initial conviction and a further deprivation of liberty gradually
becomes less strong (compare Van Droogenbroeck, cited above, §
40, and Eriksen, cited above, § 78). The causal link
required by sub-paragraph (a) might eventually be broken if a
position were reached in which a decision not to release or to
re-detain was based on grounds that were inconsistent with the
objectives of the initial decision (by a sentencing court) or on an
assessment that was unreasonable in terms of those objectives. In
those circumstances, a detention that was lawful at the outset would
be transformed into a deprivation of liberty that was arbitrary and,
hence, incompatible with Article 5 (compare Van Droogenbroeck,
cited above, § 40; Eriksen, cited above, § 78;
Weeks, cited above, § 49; and M. v. Germany,
cited above, § 88).
(b) Application of these principles to the
present case
- The
Court is called upon to determine first, in the light of the above
principles, whether the applicant, during his preventive detention at
issue in the proceedings he brought before the domestic courts, was
deprived of his liberty in accordance with one of the grounds listed
in sub-paragraphs (a) to (f) of Article 5 § 1.
- In
that connection, the Court refers to its findings in its recent
judgment of 17 December 2009 in the case of M. v. Germany
(cited above). In that judgment, it found that Mr M.’s
preventive detention, which, as in the present case, was ordered by
the sentencing court under Article 66 § 1 of the Criminal Code,
was covered by sub-paragraph (a) of Article 5 § 1 in so far as
it had not been prolonged beyond the statutory maximum period
applicable at the time of that applicant’s offence and
conviction (see ibid., §§ 96 and 97-105). The Court
was satisfied that Mr M.’s initial preventive detention
within that maximum period occurred “after conviction” by
the sentencing court for the purposes of Article 5 § 1 (a). The
Court took note of the fact that preventive detention was fixed with
regard to the danger the person concerned presented to the public –
and thus served (also) a preventive purpose. It considered, however,
that an order of preventive detention under Article 66 § 1 of
the Criminal Code was nevertheless always dependent on and ordered
together with a sentencing court’s finding that the person
concerned was guilty of an offence and thus resulted from a
“conviction” (ibid., § 96).
- Having
regard to these findings in its judgment in the application of M.
v. Germany, from which it sees no reason to depart, the Court
considers that the preventive detention under Article 66 of the
Criminal Code of the applicant in the present case was based on his
“conviction”, for the purposes of Article 5 § 1 (a),
by the Cologne Regional Court in May 1995. It would clarify in that
context that, other than the applicant in the M. v. Germany
case, the applicant in the present case was not detained for a period
beyond the statutory maximum period applicable at the time of his
offence and conviction.
- It
remains to be determined whether the applicant’s preventive
detention throughout the period here at issue occurred “after”
conviction, that is, whether there remained a sufficient causal
connection between his conviction and the deprivation of liberty at
issue. The Court reiterates in this context that the causal link
required might be broken if the courts’ decisions not to
release the person concerned were based on grounds that were
inconsistent with the objectives of the decision by the sentencing
court when ordering preventive detention or based on an assessment
that was unreasonable in terms of those objectives (see paragraph 44
above).
- The
Court notes that the sentencing Cologne Regional Court ordered the
applicant’s preventive detention in view of the applicant’s
conviction on several counts of attempted burglary and of his
numerous previous convictions of burglary. By ordering the
applicant’s preventive detention, that court intended to
prevent the applicant from committing further similar offences
causing serious economic damage to their potential victims (see
paragraph 7 above). In the 2002 and 2006 review proceedings here at
issue, the courts dealing with the execution of sentences, having
regard to the applicant’s previous convictions, his conduct in
prison and his attitude towards work, found that the applicant was
liable to reoffend and to commit further burglaries or other property
offences in order to make his living. The domestic courts further
considered that there was no positive development as the applicant
refused to undergo therapy and to reappraise his criminal past (see
paragraphs 9 et seq. above).
- Having
regard to these grounds given for the order and execution of the
applicant’s preventive detention, the Court considers that the
decisions of the courts responsible for the execution of sentences
not to release the applicant were consistent with the objectives of
the judgment of the sentencing court. These decisions were based on
the same grounds as the judgment of the Cologne Regional Court
ordering the applicant’s preventive detention, namely to
prevent the applicant from committing further serious property
offences such as burglaries.
- Furthermore,
having regard to the assessment made by the domestic courts that the
applicant was liable to reoffend in that manner, the Court reiterates
the concerns it expressed in its judgment in the case of
M. v. Germany regarding the realities of the
situation of persons in preventive detention. There appear to be no
special measures, instruments or institutions in place, other than
those available to ordinary long-term prisoners, directed at persons
subject to preventive detention and aimed at reducing the danger they
present and thus at limiting the duration of their detention to what
is strictly necessary in order to prevent them from committing
further offences (cited above, § 128).
- Nevertheless,
the domestic courts’ decisions in the present case that it was
necessary to prolong the applicant’s preventive detention
cannot be considered as unreasonable in terms of the objectives of
the preventive detention order. The applicant had not only refused to
undergo any therapy. There were also no other signs that he
reappraised his criminal past nor any indication that other measures
were at hand to effectively prevent him from committing further
serious property offences.
- Therefore,
there was a sufficient causal connection between the applicant’s
conviction and his preventive detention throughout the period here at
issue. As the applicant’s detention was also lawful in that it
was based on a foreseeable application of Articles 66, 67d and 67e of
the Criminal Code, it complied with the requirements of Article 5 §
1 (a) of the Convention.
- Consequently,
there has been no violation of Article 5 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained, in relation to his proceedings
concerning his preventive detention, that his detention amounted to
torture contrary to Article 3 of the Convention in that it was aimed
at extracting a confession from him. Invoking Article 5 § 5 of
the Convention, he claimed compensation for his remand in preventive
detention. Moreover, he argued that the domestic courts’
failure to examine the circumstances leading to his arrest and their
refusal to review the lawfulness of his criminal convictions violated
Article 13 of the Convention as the court proceedings at issue were
ineffective without doing so.
- With
respect to the proceedings concerning the remuneration for his prison
work, the applicant further complained under Article 3 of the
Convention that this remuneration was so low as to breach the
prohibition of degrading treatment. Moreover, the fact that he was
forced to work while in illegal preventive detention violated Article
4 of the Convention. The failure of the prison authorities to
disclose the remuneration paid for his work by the private company to
the State breached Article 13 of the Convention.
- The
Court notes that the applicant did not raise a complaint about his
duty to work in prison as such in the proceedings concerning the
remuneration for his prison work before the domestic courts, in
particular before the Federal Constitutional Court. His complaint
under Article 4 § 2 of the Convention must therefore be
dismissed for non-exhaustion of domestic remedies in accordance with
Article 35 §§ 1 and 4 of the Convention. As regards the
remainder of the applicant’s complaints, the Court has examined
them as submitted by the applicant. However, having regard to all
material in its possession, the Court finds that, even assuming their
compatibility ratione materiae with the provisions of the
Convention in all respects, these complaints do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols.
- It
follows that the remainder of the application must be rejected as
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and
4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 5 § 1
of the Convention concerning the applicant’s preventive
detention admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 5 § 1 of the Convention.
Done in English, and notified in writing on 21 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
