Heinz Wolfgang HOFMANN v Germany - 30678/09 [2010] ECHR 2048 (16 November 2010)

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The European Court of Human Rights (Fifth Section), sitting on
16 November 2010 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, Registrar,

The applicant, Mr Heinz Wolfgang Hofmann, is a German national who was born in 1952 and lives in Roßlau.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 20 July 2007 the applicant and his wife were involved in a fist fight with a neighbour. Both the applicant’s wife and the neighbour pressed criminal charges for assault.

On 18 June 2007 the police summoned the applicant as witness in relation to the assault charges against the neighbour.

On 2 July 2007 the police ordered that the applicant’s fingerprints, photographs and a saliva sample be taken for the police records pursuant to section 81b of the Code of Criminal Procedure (see “Relevant domestic law” below) in connection with assault charges against the applicant.

On 1 August 2007 counsel requested legal aid for a complaint against the order of 2 July 2007.

On 21 August 2007 the police withdrew the order insofar as it related to a saliva sample.

On 10 April 2008 the Dessau-Roßlau Administrative Court, sitting as a chamber composed of three judges, granted the legal aid request on the ground that it was doubtful whether the order had been lawful.
The applicant had not concealed his identity during previous incidents that had resulted in criminal investigations against him. There were no indications that he would do so in the future and that the taking of fingerprints or photographs for the police records would help in criminal investigations.

On 17 July 2008 the Administrative Court, sitting in single judge formation, dismissed the complaint, holding that the conditions of
section 81b of the Code of Criminal Procedure had been met. In view of previous criminal investigations against the applicant and his aggressive behaviour, the court found sufficient grounds to believe that it was likely that the applicant would be suspect in criminal investigations concerning assault in the future. The court further held it to be irrelevant that the applicant had always been known to the victims in the past and that his identification had not posed problems for the police, since the suspects for assault were not always known to the victims and it could not be ruled out that potential victims would be unaware of the applicant’s identity in the future.

Counsel requested legal aid for the appeal proceedings and requested leave to appeal.

On 16 March 2009 the Administrative Appeals Court of the Land Saxony-Anhalt refused legal aid for lack of prospect of success as well as leave to appeal. It noted that the taking of fingerprints and photographs for the police records was a preventive measure aimed at facilitating future criminal investigations against unknown suspects. It further noted that the administrative court had sufficiently established that the conditions of section 81b of the Code of Criminal Procedure had been met in view of the incident of 20 July 2007 and eight other criminal investigations against the applicant concerning assault, defamation, coercion, child abuse and abuse of a position of trust, none of which had resulted in charges being preferred against the applicant. The Administrative Appeals Court rejected the applicant’s submission that the conditions of section 81b of the Code of Criminal Procedure had not been met in view of the incident of
20 July 2007 alone, since all nine criminal investigations against the applicant had to be taken into account.

On 7 April 2009 the applicant, acting pro se, lodged a constitutional complaint with the aim that the Administrative Appeals Court’s “wrong decision” be set aside on the grounds that the administrative courts had not been independent; that the single judge had not duly considered the decision of three judges to grant legal aid; that the courts had wrongly taken into account criminal investigations against him since he had never been convicted; that the aims of the authorities had been to debase, to criminalise, to dishonour and to humiliate him; and that the authorities had attempted to further increase his debts by ordering him to pay excessive court fees.
He submitted that the police had coerced the administrative court into perverting the course of justice and that the courts had covered up the illegal actions of the police. He lastly asserted that Saxony-Anhalt was not a Land based on the rule of law and that everyone who was willing to complain about illegal police actions like himself was discriminated, unjustly persecuted and silenced using methods of the Staatssicherheitsdienst
(the secret service of the former German Democratic Republic).

On 22 May 2009 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for examination without giving further reasons (no. 1 BvR 860/09).

Pursuant to section 81b of the Code of Criminal Procedure photographs and fingerprints of the accused may be taken, even against his will, and measurements may be made of him and other similar measures taken which are required for the purposes of conducting the criminal proceedings or of the police records department.

The constitutional right to privacy, enshrined in Articles 1 § 1 and 2 § 1 of the Basic Law, read together, guarantees that an individual may decide what personal information to disclose and to whom; it also protects individuals from unlimited investigations as well as storage and passing on of personal data without their consent. Infringements of this right are only permissible in the general interest, on the basis of an act of parliament or delegated legislation, and insofar as the impugned measure is proportional to the legitimate aim pursued (see, amongst many others,
Federal Constitutional Court, judgment of 15 December 1983, published in BVerfGE 65, p. 1 (at pp. 41 et seqq.)).

According to Section 92 of the Federal Constitutional Court Act the reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed.

The applicant complained under Article 3 of the Convention that the order that his photographs and fingerprints be taken for the police records had been inhuman. He complained under Article 6 § 1 of the Convention that the Dessau-Roßlau Administrative had dismissed his claim after having granted legal aid. He lastly complained under Article 13 of the Convention that his appeals had been unsuccessful.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime...”

The Court must consider whether the applicant exhausted domestic remedies as required by Article 35 § 1 of the Convention.

In this regard the Court reiterates that the purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions. That rule is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see, among other authorities, Selmouni v. France [GC],
no. 25803/94, § 74, ECHR 1999-V).

Turning to the present case, the Court concludes that in order to comply with Article 35 § 1 of the Convention, the applicant ought to have shown that he made his complaint about the order that his photographs and fingerprints be taken for the police records at least in substance to the appropriate domestic bodies, including the Federal Constitutional Court (compare Marchitan v. Germany (dec.), no. 22448/07, 19 January 2010).

The Court notes that the applicant raised the following allegations in his constitutional complaint: that the aims of the authorities had been to debase, to criminalise, to dishonour and to humiliate him; that the rule of law was not respected in the Land of Saxony-Anhalt; and that everyone who was willing to complain about illegal police actions in the Land of
Saxony-Anhalt was discriminated, unjustly persecuted and silenced.

It follows that the applicant did not address the taking of fingerprints and photographs for the police records in his constitutional complaint. Nor did he complain about a violation of his right to privacy, enshrined in
Articles 1 § 1 and 2 § 1 of the Basic Law, read together, as would also have been required by Section 92 of the Federal Constitutional Court Act. On the basis of the content of the applicant’s constitutional complaint or his application to this Court, the Court cannot, therefore, ascertain whether the complaint before the Court was put to the Federal Constitutional Court.

In these circumstances, the Court finds that in regard to the complaint about the taking of fingerprints and photographs for the police records this application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Heinz Wolfgang HOFMANN v Germany - 30678/09 [2010] ECHR 2048 (16 November 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/2048.html Cite as: [2010] ECHR 2048