LECOMTE v. GERMANY - 80442/12 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2015] ECHR 845 (06 October 2015)

In the case of Lecomte v. Germany,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Josep Casadevall, President,
          Angelika Nußberger,
          Boštjan M. Zupančič,
          Ganna Yudkivska,
          Helena Jäderblom,
          Aleš Pejchal,
          Síofra O’Leary, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 8 September 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 80442/12) 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 French national, Ms Cécile Lecomte (“the applicant”), on 9 December 2012.

2. The applicant was represented by Ms U. Donat, a lawyer practising in Hamburg. The German Government (“the Government”) were represented by two of their Agents, Mr H.-J. Behrens and Mrs K. Behr, of the Federal Ministry of Justice.

3. The applicant alleged, in particular, that the conditions of her detention for preventive purposes in two police stations had violated Article 3 of the Convention.

4. On 12 May 2014 the application was communicated to the Government.

5. The Government of the French Republic, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1981 and lives in Lüneburg.

A. The applicant’s arrest, the order for her detention, its termination and the conditions of its execution

7. The applicant is an anti-nuclear and environmental activist. She has repeatedly used her climbing skills to draw public attention to her protest.

1. The applicant’s arrest

8. On 6 November 2008 around 11 a.m. the applicant and three further persons belonging to the Robin Wood organisation, an environmental protection group, climbed on the arch of a railway bridge. The group fixed banners expressing protest against the transport, by train, of radioactive waste from La Hague, France, to the interim storage facility in Gorleben, scheduled from 7 to 9 November 2008. The members of the group refused to have themselves roped down by the police, who had dissolved their assembly. They were finally roped down by Federal Police’s mountain rescue team. The police then arrested only the applicant at 2.40 p.m. while the other three participants remained at liberty. They further seized the banners and the climbing equipment.

2. The detention order against the applicant

9. On 6 November 2008 at 5.30 p.m. the Lüneburg District Court, having heard the applicant and the Lüneburg police, ordered the applicant’s detention for preventive purposes under section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act (Niedersächsisches Gesetz über die öffentliche Sicherheit und Ordnung, see paragraph 42 below). That detention was to last until the arrival of the “castor”^[1] containers in Dannenberg train station and until 10 November 2008, 0.00 p.m. at the most.

10. The District Court found that the applicant, who had been represented by counsel throughout the proceedings before the domestic courts, and three further persons had let themselves down on a rope on a railway bridge. They had unrolled banners protesting against the castor transport. A commuter train had to be stopped because its passage would have put the protesters at risk.

11. The District Court considered that the applicant’s detention was indispensable in order to prevent the imminent commission of a regulatory offence of considerable importance to the general public, as required by section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act. There was a risk that the applicant would block the forthcoming transport of the castor containers scheduled from 7 to 9 November 2011 by a climbing action. Thereby, she would commit regulatory offences under the Railway Construction and Operation Act (Eisenbahn-Bau- und Betriebsordnung) and the Assembly Act (Versammlungsgesetz) which would be dangerous to the public. That risk was also imminent in the applicant’s case as she was known for expressing political protest, including protest against the transport of castor containers, by climbing actions and for being ready to breach the law in that context.

12. On 7 November 2008 at 9.15 p.m. the Lüneburg Regional Court, having heard the applicant in person at 2.10 p.m., dismissed the applicant’s appeal against the District Court’s decision.

3. The termination of the applicant’s detention

13. On 9 November 2008 at 5.25 p.m. the Lüneburg District Court quashed the order of 6 November 2008 for the applicant’s detention for preventive purposes and ordered the applicant’s immediate release.

14. The District Court found that, having regard to the applicant’s deteriorating state of health, there was no longer a risk that the applicant would commit a criminal or regulatory offence of considerable importance to the general public, as required by section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act, in the context of the transport of castor containers to Gorleben. Moreover, her continued detention was no longer proportionate in these circumstances. The District Court noted that medical doctor C., who had visited the applicant in detention on the latter’s request, had confirmed that the applicant suffered from serious rheumatism which necessitated her to move continuously and was in a poor mental condition. Her detention in Braunschweig Police Station, with little possibility to move, had already led to her joints having stiffened. The doctor had explained that she was not in a position to assess the applicant’s fitness for detention, but that it appeared excluded that the applicant would be capable of carrying out a climbing action in the days to come.

15. The applicant was released on the same day at 6.32 p.m.

4. The places and conditions of the applicant’s detention

16. Following her arrest on 6 November 2008 at 2.40 p.m. the applicant, having been found by a doctor of the Federal Police not to suffer from any health problems, was brought before the Lüneburg District Court which ordered her detention at 5.30 p.m. Following the District Court’s decision, the applicant was accompanied home by the police officers from 5.45 p.m. to 6.45 p.m. in order to enable her to take her own clothes and medication. She was detained in a cell in the Lüneburg Police Station from 7 p.m. onwards until 7 November 2008 at approximately 1.40 p.m., when she was brought to the Lüneburg Regional Court. The applicant’s small cell, equipped with a mattress and a chair, was lighted at least via a ventilation slot and by electric light.

17. Between the end of the hearing of the applicant by the Lüneburg Regional Court on 7 November 2008 at around 3 p.m. and its decision at 9.15 p.m. on that day, the applicant essentially stayed in the office area of the Lüneburg Police Station. She went outside for a walk on the banks of the Ilmenau river with the police officers three times during that period.

18. Following the Regional Court’s decision, the police decided to transfer the applicant to the Braunschweig Police Station which was considered being better equipped for police custody. When the applicant complained about breathing problems during the journey, the police called an ambulance. When both the ambulance crew and a police doctor had found that the applicant did not suffer from health problems, the transfer was continued in the ambulance.

19. The applicant was detained in the Braunschweig Police Station from 8 November 2008, 2.10 a.m. until her release on 9 November 2008 at 6.32 p.m. Her cell was equipped with a bed, an empty desk, a chair and an open cupboard and had a barred window with frosted glass. In the corridor of the detention wing, which she had to pass to go to the toilet, photographs of shackled persons were exposed. These included a picture of a person subject to ankle and hand cuffs, with both cuffs being tied together by a chain in the person’s back lying on a mattress on the ground.

20. During the applicant’s detention in the Braunschweig Police Station, the light in her cell remained switched on throughout the applicant’s first night in that cell. The applicant had climbed on the cupboard in her cell and passed the night thereon, failing to comply with the police’s order to descend. The applicant was taken out for a walk on the premises of the Braunschweig Police Station, which did not dispose of a closed courtyard, on 8 November 2008 from 2.20 p.m. until 3.02 p.m., being loosely shackled to a female police officer. On 9 November 2008 the applicant was allowed to stay outside on those premises from 12.22 p.m. until 12.35 p.m., without being shackled; she climbed on a tree on that occasion. The applicant was supplied with writing material on 8 November 2008. She was further allowed to receive three visits from a friend and two from her doctor C. She was also allowed to telephone her lawyer and her partner several times.

B. The proceedings for review of the lawfulness of the applicant’s detention and of the conditions thereof

1. The proceedings before the Lüneburg District Court

21. On 15 July 2009 the Lüneburg District Court dismissed the applicant’s action of 8 November 2008 under section 19 § 2 of the Lower Saxony Public Security and Order Act (see paragraph 43 below) against the Lüneburg police for a finding that both the order for her detention and the conditions of its execution had been unlawful.

22. As regards the lawfulness of the applicant’s detention the District Court, endorsing the findings of fact made by the Regional Court in its decision of 7 November 2008 (see paragraph 12 above) as well as its reasoning, confirmed that the detention had complied with section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act.

23. As regards the execution of the detention order against the applicant, the District Court considered that the manner in which the detention had been enforced had been lawful and had complied, in particular, with the provisions of the Police Custody Regulations (Polizeigewahrsamsordnung, see paragraph 45-49 below).

24. The District Court noted that the detention order was executed in the detention wing of the Lüneburg Police Station until 7 November 2008 and subsequently in the detention wing of the Braunschweig Police Station.

25. As to the applicant’s complaint that her detention cells did not have windows, but only ventilation slots, the District Court considered that the equipment of the detention cells had complied with no. 15 of the Police Custody Regulations (see paragraph 49 below) and that there had been enough light. The recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) were irrelevant here. The photographs of shackled persons exposed in the detention wing of the Braunschweig Police Station may have been tasteless, but did not render the applicant’s detention unlawful as a result of intimidation.

26. Moreover, there had not been a breach of the right to sufficient night’s rest provided by no. 12 of the Police Custody Regulations (see paragraph 48 below). In Lüneburg, some noise made by a ventilator may have made it more difficult for the applicant to fall asleep, but the police was not obliged to be considerate of individual sensitivities. The fact that the light had remained switched on all night in Braunschweig had been a consequence of the applicant’s own behaviour. She had insisted spending the night on the cell’s cupboard the height of which was 1.90 metres. The light had therefore been necessary for her own protection. It had not been possible for the police to guarantee that, in case the applicant had fallen down from the cupboard, they would notice it immediately otherwise. According to the District Court, the applicant could ask herself whether she would have preferred having been shackled for her protection instead.

27. Furthermore, the court noted that on 8 November 2008 the applicant had been outside on the premises of the Braunschweig Police Station from 2.20 p.m. until 3.02 p.m. She had to be shackled as, being an excellent climber, there had been a risk that she would climb on trees or buildings and abscond. The applicant had not, therefore, been “taken for a walk like an animal” on the parking. On 9 November 2008 the applicant had been outside from 12.22 p.m. until 12.35 p.m. She had not been shackled and had been allowed to climb on a tree. She had not objected to returning to the detention wing afterwards.

28. The District Court further considered that the applicant had failed to substantiate that her state of health in detention had deteriorated in a manner so as to render her detention disproportionate already prior to the District Court’s decision of 9 November 2008 ordering her release. There had not been a written and impartial medical report proving the applicant’s allegation in that respect. The doctor who had visited the applicant in detention and had persuaded the then competent District Court judge to order her release had probably been a sympathiser.

2. The proceedings before the Lüneburg Regional Court

29. On 28 October 2009 the Lüneburg Regional Court dismissed the applicant’s appeal against the District Court’s decision of 15 July 2009.

30. As to the legality of the applicant’s detention, the Regional Court, endorsing the findings in its decision of 7 November 2008, confirmed that the applicant’s detention as such had complied with section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act.

31. The Regional Court further confirmed that the conditions of the applicant’s detention, albeit onerous for the applicant, had complied with the applicable legal provisions and had not been so unacceptable as to render the execution of her detention unlawful.

32. As regards the applicant’s detention during the first night in the detention cell in the Lüneburg Police Station, the Regional Court found that the cell had been uncomfortable, but had complied with no. 15.1 of the Police Custody Regulations in the version then in force (see paragraph 49 below). In that police station there were no detention cells suitable for a deprivation of liberty lasting several days. Despite this, the police had convincingly explained that transporting the applicant to and back from Braunschweig for the hearing before the Regional Court the following day would have restricted her even more in her liberty of movement. Furthermore, she had not complained to the police about the noise at night emanating from a ventilator.

33. Moreover, the Lüneburg police had taken care of the applicant’s well-being after her hearing before the Regional Court (on 7 November 2008 from 2.10 p.m. until 2.50 p.m.) while they waited for the Regional Court’s decision until approximately 9 p.m. with the applicant in an office in the Lüneburg Police Station in that they had taken her outside three times.

34. As regards the applicant’s subsequent detention in the Braunschweig Police Station, the Regional Court noted that the applicant arrived at that station on 8 November 2008 at 2.10 a.m. after the crew of the ambulance called by the police and a police doctor had confirmed her fitness for detention despite the breathing difficulties she had informed the police of. The Regional Court further confirmed the District Court’s finding that the pictures of shackled persons in the corridor of the detention wing - which included a photograph of a person subject to ankle and hand cuffs - may have been tasteless. However, it had neither been shown that the pictures had been put up to intimidate prisoners nor that the applicant had been intimidated in a considerable manner by them. Moreover, the court considered that it had been lawful for the police to leave the light switched on during the night. It noted that the applicant had climbed on a cupboard measuring 1.90 metres and had failed to descend on the police’s request. By choosing not to descend her by force and by leaving the light on instead the police had respected as much as possible the applicant’s right to liberty.

35. As regards the applicant’s right to stays outside during her detention in Braunschweig, the Regional Court, endorsing the findings of the District Court in this respect, found that the right provided by no. 10 of the Police Custody Regulations (see paragraph 46 below) to be allowed to stay outside for 45 minutes per day in so far as the staffing and infrastructural situation permitted had not been breached. Shackling the applicant to a female police officer on 8 November 2008 had been necessary in order to prevent the applicant from absconding. The applicant, an excellent climber, had previously shown that she was not ready to comply with the police’s orders and there had not been a closed courtyard as in prison. On 9 November 2008 the applicant had not been shackled during her time outside and had been allowed to climb on a tree. She had also been able to move within her cell in order to alleviate ailments resulting from her rheumatism.

36. As regards the applicant’s right to receive visits in detention, the Regional Court observed that under no. 11 of the Police Custody Regulations (see paragraph 47 below), such visits were permitted in so far as they did not endanger the purpose of the detention and were authorised by the police. The said provision had to be read in conjunction with section 20 § 4 of the Lower Saxony Public Security and Order Act (see paragraph 44 below). The Regional Court noted that the Braunschweig Police had received some 200 telephone calls of sympathisers of the applicant, some of whom had insulted the police, which had considerably disturbed the execution of the applicant’s detention. It had not been unlawful in these circumstances for the police not to permit visits by persons who had presented themselves at the police station without having lodged a request for a visit. In any event, the applicant had been visited by three persons while in detention, in addition to the two visits by her doctor, C., who had prescribed her necessary medication and had brought a couple of magazines. Her right to receive visits had not been unlawfully restricted in these circumstances.

37. The Regional Court’s decision was served on the applicant’s counsel on 6 November 2009.

3. The proceedings before the Federal Constitutional Court

38. By submissions dated 1 December 2009 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court against the decision of the Lüneburg District Court of 6 November 2008, confirmed on appeal by the Lüneburg Regional Court on 7 November 2008, and against the decision of the Lüneburg District Court of 15 July 2009, confirmed on appeal by the Lüneburg Regional Court on 28 October 2009. She argued, in particular, that her right to liberty, the principle of proportionality and her right to freedom of assembly and of expression had been violated by her long illegal detention in unreasonable conditions in order to prevent insignificant regulatory offences. Her complaint was registered under file no. 2 BvR 2794/09.

39. In a letter dated 18 August 2010 addressed to the applicant in person, the Federal Constitutional Court informed the applicant that her constitutional complaint of 1 December 2009 against the decisions of the Lüneburg District Court of 15 July 2009, confirmed on appeal by the Lüneburg Regional Court on 28 October 2009, in so far as the decisions concerned the conditions of her detention, had been registered under file no. 2 BvR 1779/10.

40. On 24 August 2010 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the above-mentioned four decisions in so far as these decisions concerned the lawfulness of the applicant’s detention, without giving reasons (file no. 2 BvR 2794/09). The Federal Constitutional Court’s decision was served on the applicant’s counsel on 21 September 2010. In her letter to the Federal Constitutional Court dated 3 October 2010 the applicant’s counsel, referring to the two file numbers assigned to the applicant’s constitutional complaint, the letter of 18 August 2010 and the decision of 24 August 2010, asked for a progress report; she was informed that it was not possible to indicate when a decision on the complaint under file no. 2 BvR 1779/10 would be taken.

41. On 30 May 2012 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the decision of the Lüneburg District Court dated 15 July 2009, confirmed on appeal by the Lüneburg Regional Court on 28 October 2009, without giving reasons (file no. 2 BvR 1779/10). The decision was served on the applicant’s counsel on 18 June 2012.

II. RELEVANT DOMESTIC LAW

A. Provisions of the Lower Saxony Public Security and Order Act

42. Under section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act, on custody, the administrative authorities and the police may take a person into custody if this is indispensable in order to prevent the imminent commission or continuation of a criminal or regulatory offence of considerable importance to the general public.

43. Section 19 § 2 of the Lower Saxony Public Security and Order Act, on judicial review, provides that the detained person may request, even after the termination of the detention, a review of the lawfulness of the detention within one month. The request shall be lodged with the District Court in whose district the person was taken into custody. The District Court’s decision is subject to appeal to the Regional Court (see section 19 §§ 2 and 3).

44. Pursuant to section 20 § 4 of the Lower Saxony Public Security and Order Act, on the treatment of detained persons, the detained person may only be imposed restrictions which are necessary to attain the purpose of the deprivation of liberty or for the maintenance of order in custody.

B. Provisions of the Police Custody Regulations

45. The relevant provisions of the Police Custody Regulations, in the version in force at the time of the applicant’s detention, were issued by the Lower Saxony Ministry for the Interior on 2 July 2001 and were applicable until 31 December 2008. They contained rules on the execution of police custody.

46. No. 10 of the Police Custody Regulations, on stays outside, provided that persons who were taken into custody for more than 24 hours should be given the opportunity to stay outside for 45 minutes per day in so far as the staffing and infrastructural situation permitted so.

47. Under no. 11.1 of the Police Custody Regulations, on visits, detained persons could receive visits in so far as the purpose or execution of the detention order was not endangered thereby. Visits, other than those by lawyers, had to be authorised by the competent police authority.

48. No. 12 of the Police Custody Regulations, on night’s rest, provided that persons taken into custody had a right to sufficient night’s sleep, from 9 p.m. until 6 a.m., in so far as the operational events permitted so.

49. Pursuant to no. 15.1 of the Police Custody Regulations, detention cells had to be equipped with a fixed bed, a mattress, one to two blankets and an interphone or bell. Under no. 15.3 of the said Regulations, the cells had to be sufficiently tempered, illuminated and aired.

III. RELEVANT REPORTS OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

50. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) of the Council of Europe issues the CPT standards, in which the “substantive” sections of the CPT’s yearly General Reports are summarized. In its CPT standards as established at the time of the applicant’s police custody (CPT/Inf/E (2002) 1 - Rev. 2006), which have not been amended since then in respect of the issues relevant here (see CPT/Inf/E (2002) - Rev. 2015), the CPT made the following findings and recommendations in respect of police custody:

“Extract from the 2nd General Report [CPT/Inf (92) 3]

42. Custody by the police is in principle of relatively short duration. Consequently, physical conditions of detention cannot be expected to be as good in police establishments as in other places of detention where persons may be held for lengthy periods. However, certain elementary material requirements should be met.

All police cells should be of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (eg. a fixed chair or bench), and persons obliged to stay overnight in custody should be provided with a clean mattress and blankets.

Persons in custody should be allowed to comply with the needs of nature when necessary in clean and decent conditions, and be offered adequate washing facilities. They should be given food at appropriate times, including at least one full meal (i.e. something more substantial than a sandwich) every day.^[2]

43. The issue of what is a reasonable size for a police cell (or any other type of detainee/prisoner accommodation) is a difficult question. Many factors have to be taken into account when making such an assessment. However, CPT delegations felt the need for a rough guideline in this area. The following criterion (seen as a desirable level rather than a minimum standard) is currently being used when assessing police cells intended for single occupancy for stays in excess of a few hours: in the order of 7 square metres, 2 metres or more between walls, 2.5 metres between floor and ceiling.”

“Extract from the 12th General Report [CPT/Inf (2002) 15]

47. Police custody is (or at least should be) of relatively short duration. Nevertheless, conditions of detention in police cells must meet certain basic requirements.

All police cells should be clean and of a reasonable size^[3] for the number of persons they are used to accommodate, and have adequate lighting (i.e. sufficient to read by, sleeping periods excluded); preferably cells should enjoy natural light. Further, cells should be equipped with a means of rest (e.g. a fixed chair or bench), and persons obliged to stay overnight in custody should be provided with a clean mattress and clean blankets. Persons in police custody should have access to a proper toilet facility under decent conditions, and be offered adequate means to wash themselves. They should have ready access to drinking water and be given food at appropriate times, including at least one full meal (i.e. something more substantial than a sandwich) every day. Persons held in police custody for 24 hours or more should, as far as possible, be offered outdoor exercise every day.”

51. In its Report of 18 April 2007 to the German Government on the visit to Germany carried out by the CPT from 20 November to 2 December 2005 (CPT/Inf (2007) 18), the CPT found in respect of ill-treatment in police establishments:

“15. The CPT has serious misgivings about the combined use of hand- and ankle-cuffs (so-called “hogtie-Fesselung”), which, according to police officers met by the delegation, was, on occasion, resorted to.

The Committee notes that this painful and potentially harmful technique of restraining a violent/recalcitrant person is prohibited by an internal order of the police in the Land of Berlin. (...)It recommends that this positive approach be followed by the Federal Police and the police services of all other Länder.”

52. In that same Report, the CPT found in respect of conditions of detention in police establishments, in particular:

“41. Finally, the CPT must stress that, due to their specific design (cells with very limited or no access to natural light; lack of outdoor exercise facilities), most if not all of the police detention facilities visited are unsuitable for accommodating persons for prolonged periods.”

53. In its Report of 15 December 2009 to the Latvian Government on the visit carried out by the CPT from 27 November 2007 to 7 December 2007 (CPT/Inf (2009) 35), the CPT clarified in respect of conditions of detention in police establishments:

“33. ... The CPT recommends that all persons who are detained by the police for more than 24 hours are offered at least one hour of outdoor exercise every day.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 5 § 1, 10 and 11 OF THE CONVENTION BY THE DETENTION AS SUCH

54. The applicant complained that her unlawful detention for preventive purposes violated her right to liberty as provided in Article 5 § 1 of the Convention. That detention further served the purpose of preventing her from expressing her views on the transport of castor containers in demonstrations or by climbing actions, in breach of her rights under Article 10 and Article 11 of the Convention. Articles 5 § 1, 10 and 11, in so far as relevant, read as follows:

Article 5

“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:

...

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(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;

...”

Article 10

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Article 11

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, ...

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

55. The Government contested that argument.

A. The parties’ submissions

1. The Government

56. In the Government’s submission, the applicant failed to comply with the six-month time-limit under Article 35 § 1 of the Convention in so far as she complained about the compliance of her detention as such with Articles 5 § 1, 10 and 11 of the Convention. They stressed that the Federal Constitutional Court had divided the applicant’s constitutional complaint into two parts, one concerning the lawfulness of the applicant’s detention and one concerning the conditions of her detention. The reason for doing so had been that the two subject-matters were assigned to two different judge rapporteurs respectively. By a final decision dated 24 August 2010, served on 21 September 2010, the Federal Constitutional Court had declined to consider the applicant’s constitutional complaint in so far as the impugned decisions had concerned the lawfulness of the applicant’s detention (file no. 2 BvR 2794/09). In so far as the applicant raised complaints related to the lawfulness of her detention, she therefore had to complain about the decision of 24 August 2010, but her application, lodged with the Court in December 2012, was not brought within six months from the date of delivery of that decision.

57. The Government argued that the separation of the constitutional complaint into two parts had been perceptible to the applicant, who had been represented by counsel. The applicant had been informed by the Federal Constitutional Court by a letter dated 18 August 2010 that her complaint concerning the conditions of her detention had been registered separately, under a new file number. Moreover, it had been specified in the Federal Constitutional Court’s decision of 24 August 2010, served on the applicant’s counsel, that that decision concerned only the question of the lawfulness of the applicant’s detention.

58. In the Government’s view, the question of the lawfulness of the applicant’s detention as such could be assessed independently of the question of the lawfulness of the conditions of her detention. By separating these issues, the Federal Constitutional Court had made it clear that in its view, the applicant’s conditions of detention would not affect the lawfulness of her detention as such.

2. The applicant

59. The applicant took the view that she had complied with the six-month time-limit under Article 35 § 1 of the Convention in so far as she complained under Articles 5 § 1, 10 and 11 of the Convention about the lawfulness of her detention as such.

60. The applicant argued that under the Celle Court of Appeal’s well-established case-law, a person’s detention could be declared unlawful for the reason alone that the conditions in which the detention was executed were unacceptable. Therefore, the applicant could expect that the Federal Constitutional Court would equally declare the detention as such unlawful if it considered the conditions of its execution unlawful. The applicant, who was without means, was therefore not obliged to lodge her application with the Court concerning the compliance of her detention with Articles 5 § 1, 10 and 11 of the Convention already against the Federal Constitutional Court’s decision of 24 August 2010. She had to await that court’s decision of 30 May 2012 concerning the conditions of her detention in order to have fully exhausted domestic remedies and had complied with the six-month time-limit running from the delivery of that decision.

61. The applicant further submitted that the Federal Constitutional Court had failed to inform her counsel of the separation of the proceedings as its letter dated 18 August 2010 had only been sent to herself in person while its decision of 24 August 2010 had only been sent to her counsel. She could not be blamed for any lack of clarity resulting from the procedure chosen by the Federal Constitutional Court.

B. The Court’s assessment

62. Pursuant to Article 35 § 1 of the Convention, the Court may only deal with a matter “within a period of six months from the date on which the final decision was taken”. It reiterates that the object of the six-month time-limit is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, among other authorities, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I; İpek v. Turkey (dec.), no. 39706/98, 7 November 2000; and Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 156, ECHR 2009).

63. In cases in which an effective remedy is available to the applicant, the six-month period runs from the date of the final decision in the process of exhaustion of (effective) domestic remedies (see Varnava and Others, cited above, § 157). Where an applicant is entitled to be served ex officio with a written copy of the final domestic decision the six-month period runs from the date of service of the written judgment (see Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997-V ; and Haralambidis and Others v. Greece, no. 36706/97, § 38, 29 March 2001) to the applicant’s lawyer, if represented (see Çelik v. Turkey (dec.), no. 52991/99, ECHR 2004-X).

64. Article 35 § 1 cannot be interpreted in a manner which would require an applicant to seize the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, the Court considers that it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, ECHR 2002-II ; and Varnava and Others, cited above, § 157).

65. The Court observes that in the present case, the applicant lodged her application complaining that her detention for preventive purposes had violated her rights under Articles 5 § 1, 10 and 11 of the Convention on 9 December 2012. She thus brought her application within six months from the service on her lawyer, on 18 June 2012, of the Federal Constitutional Court’s decision of 30 May 2012 concerning the conditions of her detention. In contrast, the application was lodged more than six months from the service on her counsel, on 21 September 2010, of the Federal Constitutional Court’s decision of 24 August 2010 concerning the lawfulness of her detention.

66. The Court notes at the outset that the applicant’s complaint that her detention prevented her from expressing her views on the transport of castor containers in breach of her rights to freedom of expression and of assembly under Articles 10 and 11 were allegedly caused by her detention as such, and not related to the conditions thereof.

67. The Court must therefore determine whether the applicant, as she alleged and as is contested by the Government, could consider her constitutional complaint concerning the conditions of her detention as an effective domestic remedy in respect of her complaints under Articles 5 § 1, 10 and 11 of the Convention, and thus as an effective remedy which she was obliged or at least entitled to exhaust following the Federal Constitutional Court’s decision concerning the lawfulness of her detention.

68. The Court takes note of the applicant’s argument that under the civil courts’ well-established case-law, a person’s detention could be declared unlawful for the reason alone that the conditions in which the detention was executed were unacceptable. It accepts that it is arguable that there are situations in which the conditions of a person’s detention alone entail the detention’s unlawfulness.

69. However, the Court observes that in the present case, the Federal Constitutional Court divided the applicant’s constitutional complaint into two parts, one concerning the conditions of the applicant’s detention (alone) and one concerning the lawfulness of her detention. In its decision of 24 August 2010, the court subsequently declined to consider the applicant’s constitutional complaint in so far as the lawfulness of her detention was concerned. The reason for the separation of the applicant’s constitutional complaint into two parts, according to the Government’s submission, was that the two subject-matters concerned had been assigned to different judge rapporteurs and thus related to the court’s internal organisation (as opposed to the prospects of success of the different parts of the complaint). Nevertheless, the Court considers that the fact that the Federal Constitutional Court decided on the constitutional complaint in so far as it concerned the lawfulness of the detention as such in a separate decision clearly indicated that that court did not consider the possibly unconstitutional conditions of the applicant’s detention to be able to affect the compliance with the Constitution of the detention as such. It could not be expected that that court would contradict its first decision in a subsequent decision on the compliance with the Constitution of the conditions of the applicant’s detention.

70. The Court is further convinced that the applicant could have been aware of the fact that the remainder of her constitutional complaint concerning the conditions of her detention had not been an effective remedy in respect of her complaints under Articles 5 § 1, 10 and 11 of the Convention. It considers that, even though the division of a constitutional complaint into two parts does not appear to occur very often, the procedure chosen by the Federal Constitutional Court was sufficiently clear. The Federal Constitutional Court, in its decision of 24 August 2010, served on the applicant’s counsel, specified that that decision only related to the applicant’s constitutional complaint against the civil courts’ decisions in so far as these decisions had concerned the lawfulness of the applicant’s detention. The applicant, represented by counsel, had therefore been informed that that question had been finally settled at domestic level.

71. The final decision of the domestic courts in the process of exhaustion of effective domestic remedies in respect of the complaints under Articles 5 § 1, 10 and 11 of the Convention, for the purposes of Article 35 § 1 of the Convention, was therefore the Federal Constitutional Court’s decision of 24 August 2010. The applicant failed to lodge her application of 9 December 2012 with the Court within six months from the service on her counsel, on 21 September 2010, of that decision.

72. It follows that this part of the application was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION BY THE CONDITIONS OF THE DETENTION

73. The applicant complained that the conditions in which she had been remanded in police custody had been in breach of Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

74. The Government contested that argument.

A. Admissibility

75. 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

76. The applicant took the view that the poor and humiliating conditions of her detention, viewed in their entirety, had amounted to inhuman treatment and had violated Article 3 of the Convention. Having protested without violence, she had been treated like a dangerous criminal.

77. As regards the conditions of her detention in the Lüneburg Police Station, the applicant submitted that the width of her tiny cell had been so insignificant that she had been able to climb up in the cell with her feet on the walls facing each other. The cell had not had a window, but only ventilation slots, so that there had been no daylight. The ventilator had been so noisy that she had been unable to sleep.

78. As regards the conditions of her detention in the Braunschweig Police Station, the applicant stressed that she had to pass by the photographs of shackled persons exposed in the corridor of the detention wing of that station each time she had gone to the toilets. The photographs included pictures of a person subject to ankle and hand cuffs, a means of shackling disapproved of by the CPT. In view of the fact that her obviously disproportionate detention for preventive purposes as such, which constituted a surrogate punishment for politically undesirable conduct, and her treatment by the police guards had been degrading, these photographs had frightened her and had intensified her feeling of helplessness.

79. In the applicant’s submission, the fact that the light had remained switched on throughout her first night in the Braunschweig detention cell and had prevented her from sleeping had equally been in breach of Article 3. She conceded that she had climbed on the cupboard in her cell, but submitted that she had done so in order to protest against the fact that the police had refused to switch off the light.

80. The applicant further argued that she had not had sufficient possibilities for outdoor exercise during her police custody. On 7 November 2008 she had been obliged to accompany the police officers, who wanted to smoke, three times on a walk along the banks of the Ilmenau river, being herself a non-smoker. During her detention in Braunschweig, she had only been allowed to go outside thirty minutes on 8 November 2008 and thirteen minutes on 9 November 2008 respectively, in breach of the CPT standards in that field. Moreover, she had been shackled to a female police officer during the first walk on the premises of the police station. In view of her medical condition - she suffered from rheumatism, as a result of which she was disabled at a rate of 30 per cent - this lack of sufficient movement had caused her considerable pain.

81. The applicant claimed that her detention had also been more restrictive than what was inherent in every deprivation of liberty in that she had lacked material such as books or writing material to occupy herself. She contested having been provided with books and submitted that she had only been provided with reading material by her doctor and writing material after two days in detention. Her conditions of detention had been worse than those for convicted offenders, as there had neither been television, radio, telephone or games nor any opportunities to do sport or to have contact with others.

82. Furthermore, in the applicant’s submission, her humiliating conditions of detention as a whole had caused in her feelings of helplessness and had made her become handicapped at a rate of thirty per cent, in addition to her pre-existing disability owing to her rheumatism, as a result of a post-traumatic stress disorder. She submitted a decision of the Lower Saxony Social Office dated 24 August 2010 attesting her to have a “psychological disability” at a rate of 30 per cent. She further presented a medical certificate dated 13 September 2012 issued by a psychotherapist diagnosing her with a post-traumatic stress syndrome having been caused by her detentions in November 2008 and in July 2009.

(b) The Government

83. The Government argued that the conditions of the applicant’s detention had not violated Article 3 of the Convention. They stressed that the applicant’s detention had been of a relatively short duration (three days and four hours). Moreover, the police officers entrusted with guarding the applicant had tried to keep the inconveniences suffered by the applicant as a result of her detention to a minimum throughout her detention.

84. In the Government’s view, the equipment of the applicant’s cell in the Lüneburg Police Station had complied with CPT standards for police custody cells. In particular, there had been a clean mattress and a chair, sufficient electric lighting and some natural light, albeit reduced by bars and frosted glass. Had the applicant complained about the sound of the ventilation, which she had not, it could possibly have been stopped. The Government explained in that context that the police had initially detained the applicant in the Lüneburg Police Station in order to spare her the transport to the Braunschweig Police Station, situated some 120 kilometres away, in the evening of 6 November 2008 and back to Lüneburg the next morning, where she was to be heard by the Lüneburg Regional Court.

85. As regards the conditions of the applicant’s detention in the Braunschweig Police Station, to which the applicant had been transferred as it was better equipped for a longer police custody, the Government expressed regret that the photographs of shackled persons exposed in the corridor of the detention wing of that station had affected the applicant. They submitted that the Braunschweig police had explained that the photographs showed members of the police forces who had simulated the situations portrayed for internal training purposes. There had not been any intention to intimidate or threaten the applicant by the photographs displayed in a corridor which the applicant had passed quickly. The photographs had been removed in December 2008 as the Braunschweig police, following a visit of the detention wing by a citizens’ initiative, had conceded that the photographs could be misinterpreted. While conceding that the photographs had been tasteless in their context, the Government took the view that the prejudice caused by them did not attain the threshold of an inhuman or degrading treatment in breach of Article 3.

86. Moreover, the fact that the light had remained switched on throughout the applicant’s first night in the Braunschweig detention cell had not disregarded Article 3 either. As the applicant had climbed on the cupboard 1,90 metres off the ground and had refused to comply with the guards’ order to descend, the police had decided to leave the light on for her protection and to look in on the applicant at regular intervals instead of making her descend from the cupboard by force and possibly placing her in physical restraints.

87. In the Government’s submission, the applicant had further had sufficient possibilities for outdoor exercise during her police custody. She had been taken for a short walk three times on 7 November 2008 along the banks of the Ilmenau river while waiting for the Regional Court’s decision. On 8 November 2008 the applicant had been allowed to stay in the outdoor area of the Braunschweig Police Station from 2.20 p.m. until 3.02 p.m. while being loosely handcuffed to a female police officer. Having regard to the applicant’s previous conduct, in particular her refusal to descend from the cupboard during the night, there had been a risk that she would abscond had she not been shackled as the Braunschweig Police Station did not dispose of an enclosed courtyard. On 9 November 2008 the applicant had stayed outside from 12.22 p.m. until 12.35 p.m. and had been allowed to climb on a tree in the presence of police officers who knew her.

88. The Government also argued that in so far as the applicant complained that she had lacked material such as books or writing material to occupy herself and that she had lacked sufficient contacts with the outside world as her mobile telephone had been taken from her, these had been restrictions inherent in a short police custody. Moreover, the applicant had been provided with books and had been allowed three visits from a friend and two from her doctor, who had also brought some magazines, within two days of police custody. She had also been permitted to call her lawyer and her partner several times.

89. Furthermore, the Government took the view that the authorities had taken sufficient measures to protect the applicant’s health. She had been examined twice by a police doctor and twice by her personal doctor during her detention. The police had immediately called an ambulance and consulted a doctor when the applicant had complained of breathing difficulties on the journey from Lüneburg to Braunschweig. Her release had further been ordered on the basis of an oral report of her personal doctor by telephone alone in order to exclude any risks to the applicant’s health. Even assuming that there was a causal connection between the applicant’s conditions of detention and the deterioration of her state of health, the latter had not been foreseeable to the authorities in view of the medical attendance she had been provided with.

2. The Court’s assessment

(a) Recapitulation of the relevant principles

90. The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV; Kudła v. Poland [GC], no. 30210/96, § 90, ECHR 2000-XI; and Van der Ven v. the Netherlands, no. 50901/99, § 46, ECHR 2003-II).

91. Ill-treatment must, however, attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI; Van der Ven, cited above, § 47; and Mkhitaryan v. Russia, no. 46108/11, § 70, 5 February 2013).

92. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in the victims feeling of fear, anguish and inferiority capable of humiliating and debasing them (see, for example, Kudła, cited above, § 92; Kalashnikov, cited above, § 95; and Hellig v. Germany, no. 20999/05, § 51, 7 July 2011). The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account, but the absence of any such purpose cannot conclusively rule out a violation of Article 3 (see, for example, Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III; and Kalashnikov, cited above, § 101).

93. Conditions of detention may sometimes amount to inhuman or degrading treatment (see Peers, cited above, § 75). When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II; and Van der Ven, cited above, § 49). The length of the period during which a person is detained in the particular conditions is an important factor to be taken into account (see Alver v. Estonia, no. 64812/01, § 50, 8 November 2005; Horshill v. Greece, no. 70427/11, § 44, 1 August 2013; and Fakailo (Safoka) and Others v. France, no. 2871/11, § 39, 2 October 2014).

94. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure of deprivation of liberty do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła, cited above, § 94; Kalashnikov, cited above, § 95; and Mkhitaryan, cited above, § 72).

95. As regards specific aspects of conditions of detention, the Court has already considered, inter alia, that deprivation of sleep as a result of constant lighting and noise may constitute a physical and psychological burden on a detainee relevant in this context (see Kalashnikov, cited above, § 97). Moreover, the Court has taken into account whether there was a window and ventilation in the detainee’s cell (see Peers, cited above, § 75; Alver, cited above, § 53; Horshill, cited above, § 46; and Fakailo (Safoka) and Others, cited above, § 41). Likewise, the extent to which a detainee was allowed outdoor activity plays a role in this respect (see Kalashnikov, cited above, § 97; Mathew v. the Netherlands, no. 24919/03, § 213, ECHR 2005-IX; and Horshill, cited above, § 46).

96. Furthermore, the use of handcuffs or other instruments of restraint does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with a lawful detention and does not entail the use of force or public exposure exceeding what is reasonably considered necessary in the circumstances. In this regard, it is important to consider, for instance, the danger of the person’s absconding or causing injury or damage (see Raninen v. Finland, 16 December 1997, § 56, Reports of Judgments and Decisions 1997-VIII; Mouisel v. France, no. 67263/01, § 47, ECHR 2002-IX; and Kashavelov v. Bulgaria, no. 891/05, § 38, 20 January 2011).

(b) Application of these principles to the present case

97. In determining whether, in the light of the above principles, the cumulative effects of the conditions of the applicant’s detention, executed mainly in two police stations, in the present case amounted to treatment in breach of Article 3, the Court observes the following.

98. As to the applicant’s detention in the Lüneburg Police Station, the Court observes that the applicant complained about the size and insufficient lighting of the cell in which she had been detained and about the noise made by a ventilator, which had prevented her from sleeping. The Court notes that the applicant had been detained in that cell for less than 19 hours (from 7 November 2008, 7 p.m., until 8 November 2008, 1.40 p.m.).

99. As regards the size of the cell, the Court refers to the standards developed by the CPT which has set 7 m² per prisoner as an approximate, desirable guideline for a police detention cell for stays in excess of a few hours (see paragraph 50 above). It has not been sufficiently substantiated that the cell of a minor width in which the applicant was detained failed to comply with that standard.

100. As regards the lighting in that cell, the Court observes that there was limited natural light in the cell, which was lighted via a ventilation slot in the applicant’s submission and via frosted glass in the Government’s submission; in addition there was electric light. The Court accepts that limited access to natural light in detention is a relevant element in its examination of compliance of the conditions of detention with Article 3 (see paragraph 95 above), having regard also to the CPT’s recommendations in this respect (see paragraphs 50 and 52 above). However, the Court considers that the lighting of the applicant’s cell essentially by electric light cannot be considered inadequate in view of the relatively short duration of the applicant’s stay therein.

101. As to the noise made by the ventilator in that cell, the Court accepted that deprivation of sleep as a result of noise constituted a burden on the detainee concerned (see paragraph 95 above). However, there is nothing to indicate that the police authorities, to whom the applicant did not complain about the noise emanating from the ventilator, were aware that the applicant might be deprived of her night’s rest as a result of the operation of the ventilator.

102. As to the conditions of the applicant’s detention in the Braunschweig Police Station, the Court observes that the applicant was detained at that station for less than two days (from 8 November 2008, 2.10 a.m. until 9 November 2008 at 6.32 p.m.). Whenever the applicant passed the corridor of the detention wing, in particular when she went to the toilets, she had to pass by photographs exposed in that corridor showing pictures of shackled persons, including a person shackled by a combined use of hand and ankle cuffs. That method of shackling was indeed, as the applicant submitted, disapproved by the CPT (see paragraph 51 above). The Court accepts that these pictures could arouse in detainees feelings of fear and helplessness.

103. The Court further observes in that context that the Regional Court considered the pictures to have been tasteless, but found that they had not been put up to intimidate prisoners (see paragraph 34 above). It further has regard to the explanation of the Government, who expressed regret that the photographs had affected the applicant, that the photographs showed police officers who had simulated the situations portrayed for internal training purposes.

104. While the Court is prepared to accept, in the light of these explanations, that it had not been the purpose of the exposition of the photographs in issue to debase detainees such as the applicant, it considers that the police authorities could have foreseen the intimidating effects the exposition of such photographs could have on detainees.

105. However, the Court must also take into account that the photographs in question were displayed only in the corridor of the detention wing so that the applicant was confronted with them merely as a passer-by a couple of times.

106. As regards the fact that the light had remained switched on throughout the first night of the applicant’s detention in Braunschweig, which had prevented the applicant from sleeping, the Court refers to its above finding (see paragraph 95) that deprivation of sleep as a result of constant lighting constitutes a burden on the detainee concerned which is relevant in the assessment of the compliance of conditions of detention with Article 3.

107. However, the Court observes that while the reason why the applicant initially climbed on the cupboard is contested between the parties, it is uncontested that the applicant climbed on the cupboard 1.90 metres off the ground in her cell and that the police had refused to switch off the light following the applicant’s refusal to descend. It further takes note of the Regional Court’s and the Government’s argument that descending the applicant by force and possibly preventing her from climbing on the cupboard again would have restricted the applicant’s liberty even more intensively than leaving the light on for the applicant’s protection and looking in on the applicant at regular intervals. The Court accepts that the fact that the police left the light on during the night was necessitated by the applicant’s own conduct and was, in the circumstances, aimed at limiting the suffering inherent in her detention for the applicant and securing the protection of her health.

108. As regards the possibilities for the applicant to do outdoor exercise, another element to be taken into account when assessing the compliance of a person’s detention with Article 3 (see paragraph 95 above), the Court observes that the applicant was taken out for a walk three times along the banks of the Ilmenau river on 7 November 2008. She was further allowed to go out for a walk for less than one hour on 8 November 2008 and for thirteen minutes on 9 November 2008 in the outdoor area of the Braunschweig Police Station. The Court takes note in that context of the CPT’s recommendation to offer persons held in police custody for more than 24 hours, as far as possible, outdoor exercise every day (see paragraph 50 above), and the CPT’s subsequent clarification that at least one hour of outdoor exercise should be offered (see paragraph 53 above). It further observes that under No. 10 of the Police Custody Regulations then in force detainees in that situation should be given the opportunity to stay outside for 45 minutes per day if the staffing and infrastructural situation permitted so (see paragraph 46 above).

109. The Court considers that, while it would have been preferable particularly in view of the applicant’s medical condition, that is, her suffering from rheumatism, to allow the applicant more outdoor activity, the conditions of detention of the applicant, having regard to the duration of her detention of less than three-and-a-half days and the fact that no lack of space within her detention cells has been established, do not raise an issue under Article 3 in this respect.

110. The Court further observes that the applicant, during her walk outside on 8 November 2008, was loosely shackled to a female police officer. It reiterates that the use of handcuffs may raise an issue under Article 3 where the measure entails public exposure exceeding what is reasonably considered necessary in the circumstances (see paragraph 96 above). In the present case, the police shackled the applicant in order to prevent her from absconding, given that she was an excellent climber and had previously failed to comply with the police’s orders (see paragraphs 8 and 20 above), including orders to descend from the arch of a railway bridge and from her cell’s cupboard. In these circumstances, the Court is satisfied that the authorities could reasonably consider it necessary to shackle the applicant as the Braunschweig Police Station did not dispose of a closed courtyard. Moreover, it has not been demonstrated that the applicant, when taken for a walk on the premises of the police station while being shackled, was subject to any unnecessary public exposure.

111. In so far as the applicant complained about the lack of possibilities to occupy herself, the Court observes that the applicant’s conditions of detention in this respect were indeed not as good as those for convicted offenders detained in prison. However, the Court would agree with the CPT’s findings in its standards in respect of police custody that, in view of the relatively short duration of such detention, the physical conditions of detention cannot be expected to be as good as in places of detention where persons may be held for lengthy periods (see paragraph 50 above). It would add that the applicant was at least provided with writing material at a later stage and was allowed to receive three visits from a friend and to call her partner several times. In view of the short duration of the applicant’s detention, this aspect does not, therefore, raise an issue under Article 3.

112. Finally, the Court finds that the health of the applicant was adequately secured during the time of her detention. It notes in that context that, although the applicant was not examined by a police doctor or a public medical officer while detained in the Braunschweig Police Station, her health was examined once by a doctor of the Federal police and another time by a police doctor since her arrest (see paragraphs 16 and 18 above). Moreover, her personal doctor examined her twice during her three-and-a-half-day detention, and the doctor’s findings were taken into account in ordering the release of the applicant - who, as a result of her condition, was particularly sensitive to detention - on health grounds, without awaiting an additional examination by a public medical officer. It further takes note of the applicant’s submission that the conditions of her detention had caused a post-traumatic stress disorder resulting in her being handicapped at a rate of 30 per cent. The Court considers that the evidence before it (see paragraph 82 above) does not permit it to conclude that the “psychological disability” the applicant was found to suffer from had been caused (only) by the conditions of her detention in November 2008.

113. Having regard to the conditions of the applicant’s relatively short detention as a whole, the Court considers that they do not attain the minimum level of severity so as for the conditions of detention to amount to degrading treatment in breach of Article 3.

114. There has accordingly been no violation of Article 3 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the applicant’s complaint under Article 3 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 3 of the Convention.

Done in English, and notified in writing on 6 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Josep Casadevall
Registrar President

[1] Cask for the storage and transport of radioactive material.

[2] The CPT also advocates that persons kept in police custody for 24 hours or more should, as far as possible, be offered outdoor exercise every day.

[3] As regards the size of police cells, see also paragraph 43 of the 2nd General Report (CPT/Inf (92) 3).

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You are here: BAILII >> Databases >> European Court of Human Rights >> LECOMTE v. GERMANY - 80442/12 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2015] ECHR 845 (06 October 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/845.html Cite as: [2015] ECHR 845