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FIFTH
SECTION
CASE OF
RANGELOV v. GERMANY
(Application
no. 5123/07)
JUDGMENT
STRASBOURG
22 March
2012
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 Rangelov v.
Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Mark Villiger,
Ganna
Yudkivska,
Angelika Nußberger,
André
Potocki, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 21 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5123/07) 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 Bulgarian national, Mr
Georgiev Cvetan Rangelov (“the applicant”), on 12 October
2004.
- The
applicant, who had been granted legal aid, was initially represented
by Ms U. Groos and subsequently by Mr J. Oelbermann, both lawyers
practising in Berlin. The German Government (“the Government”)
were represented by their Agents, Mrs A. Wittling-Vogel,
Ministerialdirigentin, and Mr H.-J. Behrens, Ministerialrat,
of the Federal Ministry of Justice.
- The
applicant alleged that the execution of the preventive detention
order against him had violated Articles 5 § 1 and 14 of the
Convention because in view of his foreign nationality, he had been
refused important measures putting him in a position to prove that he
was no longer dangerous to the public.
- On
7 March 2007 the application was communicated to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
- The
Government of Bulgaria, 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), did not indicate that they wished
to exercise that right.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961. When lodging his application, he was
detained in Straubing Prison (Germany). He is currently detained in
Grad Vraca (Bulgaria).
A. The applicant’s previous convictions, the
order for his preventive detention and for his expulsion
- The
applicant entered Germany in 1979. He has been convicted some fifteen
times since 1980, notably of theft and burglary. In particular, on
1 March 1984 the Kempten District Court convicted him of three
counts of joint theft as a member of a gang and sentenced him to
three years’ imprisonment. On 7 October 1988 the Munich I
Regional Court convicted the applicant of six counts of burglary and
one count of attempted burglary and sentenced him to five years’
imprisonment. On 1 October 1993 the Munich District Court convicted
the applicant of joint attempted burglary, committed approximately
one month after his release from prison, and sentenced him to one
year and six months’ imprisonment.
- On
21 December 1994 the applicant was arrested and remanded in
detention.
- On
26 January 1996 the Munich I Regional Court convicted the applicant
of eight counts of burglary and attempted burglary, committed only a
few months after his release from prison, and sentenced him to eight
years and six months’ imprisonment. It found that by breaking
into different shops, the applicant had stolen goods worth some
140,000 Deutschmarks (approximately 71,581 euros). It further ordered
the applicant’s preventive detention pursuant to Article 66 §
1 of the Criminal Code (see paragraphs 40-41 below). Having
regard to an expert report, the court found that the applicant had a
propensity to commit offences by which serious economic damage was
caused and was therefore dangerous to the public.
- By
a decision of 16 April 1997, supplemented on 29 October 1997, the
city of Munich ordered the applicant’s expulsion to Bulgaria
and prohibited him to re-enter Germany for an indefinite duration in
view of his criminal convictions. It authorised the applicant’s
expulsion directly from prison as soon as he had served his sentence.
The expulsion order became final on 30 December 1997, the regional
government of Upper Bavaria having dismissed the applicant’s
appeal on 25 November 1997.
- In
the plan governing the execution of the applicant’s sentence,
drawn up by the Straubing Prison authorities and presented to the
applicant on 9 October 1997, it is noted that the applicant’s
transfer to a social therapeutic institution, relaxations in the
conditions of his detention and preparations for his release were not
envisaged as the city of Munich had issued a deportation order
against him.
- On
7 January 2002 the Erlangen Prison authorities informed the
applicant, who was at that time detained in Straubing Prison, that it
was not possible to transfer him to Erlangen in order to enable him
to participate in a social therapy because he was liable to be
expelled after having served his prison sentence.
- The
applicant served his full prison sentence until 19 June 2003. Since
then, he was remanded in preventive detention.
B. The proceedings at issue
1. The decision of the Regional Court
- On
21 August 2003 the Regensburg Regional Court, in review proceedings
pursuant to Article 67c § 1 of the Criminal Code (see
paragraph 42 below), decided that the execution of the
applicant’s preventive detention was still necessary in view of
its objective.
- On
1 December 2003 the Nuremberg Court of Appeal, allowing the
applicant’s appeal, quashed the decision of 21 August 2003 and
remitted the case to the Regional Court. It found that the Regional
Court had not been entitled to authorise one of its judges to hear
the applicant alone instead of hearing him in its full composition
without giving reasons for doing so. Moreover, the refusal of the
Straubing Prison authorities to allow the applicant’s defence
counsel to inspect his personal files had violated the right to a
fair trial.
- The
applicant’s counsel was subsequently granted access to the
applicant’s personal files at Straubing Prison.
- On
26 February 2004 the Regensburg Regional Court, having heard the
applicant on 15 January 2004 and the applicant and the two experts W.
and T. on 19 February 2004, again decided that the execution of the
applicant’s preventive detention was necessary in view of its
objective (Article 67c § 1 of the Criminal Code). It therefore
refused to suspend the execution of the applicant’s preventive
detention and to grant probation.
- Having
regard to the report submitted by the expert for forensic psychiatry
W., the Regional Court found that it was very likely that the
applicant would reoffend if released. He had been convicted of
burglary on numerous occasions and had reoffended shortly after
having served long prison sentences. As confirmed by a report
submitted by the Straubing Prison authorities dated 17 January 2003
and by the applicant’s statements at the hearing, the applicant
continuously refused critically to reflect on his offences and felt
persecuted and wrongfully convicted by the German courts.
- The
Regional Court considered that there were also no other elements
indicating that the applicant was no longer inclined to reoffend. It
noted that according to expert W., it was advisable for the applicant
to participate in a social therapy. It conceded that the applicant
had not been admitted to a social therapy in Erlangen Prison he had
applied for in 2002. The conditions of his detention had also not
been relaxed (Vollzugslockerungen). Both of these measures
were important conditions for arriving at a prognosis that he was no
longer dangerous to the public. However, this did not alter the fact
that the applicant kept posing a risk to the public.
- According
to the Regional Court, the applicant’s preventive detention was
also not disproportionate. As the applicant was not a German national
it was unlikely that the prison authorities, having regard to the
usual practice, would relax his conditions of detention. He had
further been refused a social therapy in view of his imminent
expulsion. The court considered that it was illegal to retain a
convicted person in preventive detention for an indefinite period of
time only as a consequence of his foreign nationality and the
resulting refusal of relaxed conditions of imprisonment. The Public
Prosecutor’s Office would have to consider this issue when
deciding on a fresh motion lodged by the applicant to suspend his
preventive detention pursuant to Article 456a of the Code of Criminal
Procedure (see paragraph 45 below). Otherwise, a suspension of the
preventive detention order against the applicant on probation could
have to be ordered in the future for reasons of proportionality even
without the conditions of his detention having previously been
relaxed.
2. The decision of the Nuremberg Court of Appeal
- On
23 April 2004 the Nuremberg Court of Appeal dismissed the applicant’s
appeal against the Regional Court’s decision of 26 February
2004.
- Endorsing
the reasons given by the Regional Court, the Court of Appeal found
that the applicant was still dangerous to the public. He had also
proved obstinate in prison and had to be punished three times in 2003
for having insulted the prison staff. Due to the fact that the
applicant, as confirmed by expert W., refused to take responsibility
for his past offences, there were no suitable measures to prepare the
applicant adequately for his release. As the applicant was in
preventive detention only since 20 June 2003, the execution of this
measure was still proportionate.
3. The decision of the Federal Constitutional Court
- On
27 May 2004 the applicant, represented by counsel, lodged a
constitutional complaint with the Federal Constitutional Court. He
notably argued that his right to freedom as guaranteed by Article 2 §
2 of the Basic Law was violated because his preventive detention was
disproportionate. Moreover, he claimed that the refusal to admit him
to a social therapy due to his imminent expulsion discriminated him
because of his Bulgarian nationality and therefore disregarded his
right to equality under Article 3 of the Basic Law.
- On
28 September 2004 the Federal Constitutional Court refused to admit
the applicant’s constitutional complaint and to grant him legal
aid (no. 2 BvR 1079/04). It found that his complaint had no prospects
of success. There was nothing to indicate that the criminal courts,
in reaching their decision under Article 67c § 1 of the Criminal
Code, notably in finding that the applicant was still dangerous, had
failed duly to consider human dignity and the right to freedom as
guaranteed by the Basic Law.
- The
Federal Constitutional Court confirmed that measures relaxing the
conditions of detention were a decisive factor for the prognosis of a
convicted person’s dangerousness. However, the applicant
neither claimed to have applied for such measures in the course of
his preventive detention nor to have been unlawfully refused such
measures. The decisions of the criminal courts were also not based on
the fact that until then, no such measures had been granted. As
regards therapeutic measures, the criminal courts had rightly pointed
out that due to the applicant’s persistent refusal to accept
responsibility for his offences there were no suitable measures to
prepare him adequately for his release.
C. Subsequent developments
1. Proceedings concerning relaxations in the conditions
of the applicant’s detention
- On
25 November 2004 the Straubing District Court dismissed the
applicant’s request for measures relaxing the conditions of his
preventive detention, notably leave under escort for one day under
the supervision of two prison officers. It argued that he might
abscond on that occasion. The applicant’s appeal on points of
law against this decision to the Nuremberg Court of Appeal was to no
avail. On 14 March 2006 the Straubing Prison authorities dismissed
another request made by the applicant to relax his conditions of
preventive detention on the same grounds.
2. Proceedings concerning the applicant’s
admission to a therapy
- On
17 December 2004 the Erlangen Prison again declared not to consent to
a transfer of the applicant from Straubing Prison to it in order to
admit the applicant to a social therapy. It argued that it was not in
a position to prepare the applicant, who was liable to be expelled,
for a life without offences in Bulgaria. The living conditions in
that country were not known to the therapists. On 31 January 2005 the
Nuremberg-Fürth Regional Court dismissed as inadmissible the
applicant’s request to declare that refusal unlawful. It found
that it were the Straubing Prison authorities which were competent to
decide on the applicant’s transfer to a different prison.
3. Judicial review of the applicant’s preventive
detention
- On
21 December 2006 the Regensburg Regional Court, reviewing the
necessity of the applicant’s preventive detention under
Articles 67d § 2 and 67e of the Criminal Code (see paragraphs
43-44 below), refused to suspend the execution of the applicant’s
preventive detention order on probation. Having regard to the report
of psychiatric expert A. it had consulted, it found that there was
still a risk that the applicant would commit further serious offences
against the property of others (but no violent offences) if released.
- The
Regional Court considered that the applicant’s continued
preventive detention was still proportionate. It conceded that it was
problematic that no measures at all were planned by the prison
authorities to further the applicant’s reintegration into
society. Moreover, owing to, in particular, his foreign nationality,
the applicant could not expect any relaxations in the conditions of
his detention. In practice, the latter were a precondition for coming
to an assessment that a detainee was no longer dangerous to the
public. Therefore, the court would have to decide at the next
periodic review of the applicant’s preventive detention whether
the applicant was to be released for reasons of proportionality,
despite the fact that he had not previously been granted relaxations
in the conditions of his detention and had not been considered as no
longer posing a threat to the public.
- On
12 March 2007 the Nuremberg Court of Appeal, endorsing the reasons
given by the Regional Court, dismissed the applicant’s appeal.
It noted, in particular, that expert A. had considered that there was
no starting point for beginning with measures preparing the
applicant’s conditional release. As he contested having
committed the property offences he had been found guilt of, he could
not critically reflect on his criminal behaviour. Therefore,
relaxations in the conditions of the applicant’s detention,
which were very important to arrive at a prognosis that a person was
no longer dangerous to the public, had not been refused without good
cause.
4. Proceedings under Article 456a of the Code of
Criminal Procedure
(a) First set of proceedings
- On
16 February 2005 the Munich I Public Prosecutor’s Office
dismissed the applicant’s request to suspend the execution of
his preventive detention in view of his imminent expulsion under
Article 456a of the Code of Criminal Procedure. On 25 April 2005 the
General Public Prosecutor dismissed the applicant’s appeal.
- On
12 July 2005 the Munich Court of Appeal dismissed the applicant’s
request for judicial review. Endorsing the reasons given by the
prosecution authorities, it found that there was still a risk that
the applicant reoffended and that he was still was not conscious of
his guilt. In these circumstances, a therapeutic treatment was
without prospects of success.
- On
19 June 2007 the Federal Constitutional Court declined to consider
the applicant’s constitutional complaint (file no. 2 BvR
1676/05). It found that the decision of the Court of Appeal to
consider as lawful the prosecution’s balancing between the
public interest in the continuation of the applicant’s
preventive detention and the applicant’s interest in his
personal liberty had – at least at that time – not been
unconstitutional.
(b) Second set of proceedings
- On
7 November 2005 the Munich I Public Prosecutor’s Office
dismissed another request made by the applicant to suspend the
execution of his preventive detention under Article 456a of the Code
of Criminal Procedure on the same grounds.
- The
applicant’s appeals were to no avail. In its decision of 16 May
2006 the Munich Court of Appeal noted, in particular, that it might
appear contradictory to the applicant that measures aiming at his
reintegration into society, such as a social therapy, were refused to
him because of the deportation order against him, but that the
authorities nevertheless refused to suspend the execution of his
preventive detention under Article 456a of the Code of Criminal
Procedure. However, the refusal of the said measures alone did not
mean that the prosecution authorities could only exercise their
discretion in a lawful manner by granting his request under the said
provision.
(c) Third set of proceedings
- On
7 September 2007 the Munich I Public Prosecutor’s Office
decided to suspend the execution of the applicant’s preventive
detention at the date of his expulsion to Bulgaria, and on 1 November
2007 at the earliest, under Article 456a of the Code of Criminal
Procedure.
- On
13 December 2007 the applicant was expelled to Bulgaria in accordance
with the deportation order issued by the city of Munich on 16 April
1997.
5. Further developments
- On
30 November 2009 the Korneuburg Regional Court (Austria) convicted
the applicant of two counts of murder, one count of attempted murder
and robbery with firearms, committed on 1 June 2009 in Austria and
sentenced him to life imprisonment. The judgment was upheld on
appeal. The applicant was subsequently transferred to Bulgaria in
order to serve his sentence.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Provisions governing preventive detention
- 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 referred to in the present case provide as follows:
1. The order of preventive detention by the sentencing
court
- The
sentencing court may, at the time of the offender’s conviction,
order his preventive detention (a so-called measure of correction and
prevention) under certain circumstances in addition to his prison
sentence (a penalty), if the offender has been shown to be a danger
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 of
the Criminal Code, in its version in force at the relevant time).
2. The order for the execution of preventive detention
by the court responsible for the execution of sentences
- 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 the execution of the preventive
detention order and places the person on probation with supervision
of their conduct which commences with the suspension.
3. Judicial review and duration of preventive detention
- Article
67d of the Criminal Code governs the duration of preventive
detention. Paragraph 2, first sentence, of that Article, in its
version in force at the relevant time, provides that if there is no
provision for a maximum duration or if the time-limit has not yet
expired, the court shall suspend on probation the 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 release.
- Pursuant
to Article 67e of the Criminal Code, the court (that is, 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 and a measure of probation applied. 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).
B. Provision on the execution of sentences in cases of
expulsion
- Pursuant
to Article 456a § 1 of the Code of Criminal Procedure, the
Public Prosecutor’s Office may dispense with the execution of a
prison sentence or a measure of correction and prevention if the
convicted person is expelled from German territory. The execution of
the sentence or measure may be continued if the expelled person
returns to Germany territory (Article 456a § 2 of the Code of
Criminal Procedure).
C. Provisions of the Execution of Sentences Act
- Section
9 § 2 of the Execution of Sentences Act provides that prisoners
may be transferred to a socio-therapeutic institution with their
consent if the special therapeutic measures and social aids of the
institution are advisable for their rehabilitation. The transfer is
conditional upon the consent of the head of the socio-therapeutic
institution concerned.
- Under
section 11 § 1 of the Execution of Sentences Act, the conditions
of detention may be relaxed by making an order permitting the
prisoner to perform regular work outside prison either under the
supervision of a member of the prison staff (outside work) or without
such supervision (work release). The prisoner may further be
permitted to leave the prison for a certain time during the day
either under the supervision of the prison staff (short leave under
escort) or without such supervision (short leave). Under section 11 §
2 of the said Act, these measures may only be ordered with the
prisoner’s consent and if there is no risk that the prisoner
might seek to abscond or commit offences during the relaxation of the
conditions of his detention.
- Under
section 6 § 1 (c) of the Federal Administrative Rules relating
to Article 11 of the Execution of Sentences Act, which seek to ensure
the uniform application of the law by the authorities, external work,
work release and short leave may, as a rule, not be permitted to
prisoners against whom a final expulsion order is in force and who
are to be deported directly from prison. Exceptions may be granted in
agreement with the competent aliens’ authority. Short leave
under escort may be authorised.
D. Recent case-law of the Federal Constitutional Court
on preventive detention
- On
4 May 2011 the Federal Constitutional Court delivered a leading
judgment concerning the retrospective prolongation of the
complainants’ preventive detention beyond the former ten-year
maximum period and also concerning the retrospective order for the
complainants’ preventive detention (file nos. 2 BvR 2365/09, 2
BvR 740/10, 2 BvR 2333/08, 2 BvR 1152/10 and 2 BvR 571/10).
Reversing its previous position, the Federal Constitutional Court
held that all provisions on the retrospective prolongation of
preventive detention and on the retrospective ordering of such
detention were incompatible with the Basic Law as they failed to
comply with the constitutional protection of legitimate expectations
guaranteed in a State governed by the rule of law, read in
conjunction with the constitutional right to liberty.
- The
Federal Constitutional Court further held that all the relevant
provisions of the Criminal Code on the imposition and duration of
preventive detention were incompatible with the fundamental right to
liberty of persons in preventive detention. It found that those
provisions did not satisfy the constitutional requirement of
establishing a difference between preventive detention and detention
for serving a term of imprisonment (Abstandsgebot). These
provisions included, in particular, Article 66 of the Criminal Code
in its version in force since 27 December 2003.
- The
Federal Constitutional Court ordered that all provisions declared
incompatible with the Basic Law remained applicable until the entry
into force of new legislation and until 31 May 2013 at the latest.
The provisions on the imposition and duration of preventive detention
which did not concern the retrospective ordering or prolongation of
preventive detention could only continue to be applied in the
transitional period subject to a strict review of proportionality. As
a general rule, proportionality was only observed where there was a
danger of the person concerned committing serious violent crimes or
sexual offences if released.
- In
its reasoning, the Federal Constitutional Court relied on the
interpretation of Article 5 and Article 7 of the Convention made by
this Court in its judgment in the case of M. v. Germany (cited
above; see §§ 137 ss. of the Federal
Constitutional Court’s judgment). It stressed, in particular,
that the constitutional requirement of establishing a difference
between preventive detention and detention for serving a term of
imprisonment and the principles laid down in Article 7 of the
Convention required an individualised and intensified offer of
therapy and care to the persons concerned. In line with the Court’s
findings in the case of M. v. Germany (cited above,
§ 129), it was necessary to provide a high level of care by a
team of multi-disciplinary staff and to offer the detainees an
individualised therapy if the standard therapies available in the
institution did not have prospects of success (see § 113 of the
Federal Constitutional Court’s judgment).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION,
TAKEN TOGETHER WITH ARTICLE 5
- The
applicant complained under Article 5 § 1 of the Convention that
his preventive detention was unlawful as he had been refused a social
therapy or relaxations in the conditions of his detention in view of
his future expulsion. However, at the same time his sentence was not
suspended because the prosecution authorities argued that he was not
impressed by the execution of his sentence and had not changed his
attitude towards his offences. Relying on Article 14 of the
Convention, he further argued that he had suffered discrimination
because of his Bulgarian origin as a result of the refusal of the
said measures when the order for the execution of his preventive
detention was made.
- The
Court considers that these complaints fall to be examined solely
under Article 14, taken together with Article 5 § 1 of the
Convention, which 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:
(a) the lawful detention of a person after
conviction by a competent court; ...”
Article 14
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Government contested that argument.
A. Scope of the case before the Court
- Having
regard to the parties’ submissions, the Court considers it
necessary to clarify at the outset that the proceedings at issue in
the present application are only the proceedings for judicial review,
under Article 67c of the Criminal Code, of whether the execution of
the applicant’s preventive detention was still necessary (see
paragraphs 14-25 above). Further proceedings brought by the applicant
concerning relaxations in the conditions of his detention, his
admission to a therapy or the suspension, under Article 456a of the
Code of Criminal Procedure, of the execution of his preventive
detention in view of his expulsion are relevant for understanding the
execution in practice of the preventive detention order against the
applicant, but are not as such the subject-matter of the present
application.
B. Admissibility
1. The parties’ submissions
(a) The Government
- The
Government argued that the application was already inadmissible. The
applicant’s complaints relating to the prosecution’s
failure to apply Article 456a of the Code of Criminal Procedure in
2002/2003, raised in his initial application to the Court, were
declared inadmissible by the Court on 20 February 2007 (application
no. 30182/03) and were not the subject-matter of the present
application. Furthermore, the applicant failed sufficiently to set
out his present complaints in relation to the proceedings under
Article 67c of the Criminal Code here at issue, as required by
Article 34 of the Convention and Rule 47 of the Rules of Court.
Moreover, when lodging his application with the Court, the applicant
had not yet exhausted domestic remedies in accordance with Article 35
§ 1 of the Convention. Furthermore, the applicant had failed to
exhaust domestic remedies in relation to the proceedings concerning
relaxations in the conditions of his detention, his admission to a
social therapy and the suspension of the execution of his preventive
detention in view of his deportation.
- In
their further observations dated 14 June 2011 the Government objected
that the applicant had failed to exhaust domestic remedies as
required by Article 35 § 1 of the Convention also on another
ground. They argued that in its leading judgment of 4 May 2011 on
preventive detention (see paragraphs 49-52 above), the Federal
Constitutional Court had introduced a new domestic remedy for the
review of the ongoing preventive detention of persons concerned by
that judgment. For persons in preventive detention which had not been
ordered or prolonged retrospectively, as in the applicant’s
case, the Federal Constitutional Court had set stricter standards for
their preventive detention to continue. The prolongation of
preventive detention could be ordered only if there was a danger of
the person concerned committing serious crimes of violence or sexual
offences if released. The applicant had been obliged to avail himself
of that new domestic remedy.
- The
Government further took the view that the applicant could no longer
claim to be the victim of a violation of his Convention rights. In
its above-mentioned judgment, the Federal Constitutional Court had
implemented the findings the Court had made in its judgments on
preventive detention in Germany. The Convention violations found had
thus been remedied in part by the Federal Constitutional Court in its
transitional rules, and would be remedied as soon as possible as to
the remaining part.
(b) The applicant
- The
applicant contested that view. He submitted that he had submitted to
the Court all relevant information which was requested in the
application form. Furthermore, he had exhausted all effective
domestic remedies prior to the communication of the application by
the Court to the respondent Government.
2. The Court’s assessment
(a) Exhaustion of domestic remedies
- The
Court refers to its above finding (see paragraph 56) that the
proceedings at issue in the present application are the proceedings
for judicial review, under Article 67c of the Criminal Code, of
whether the execution of the applicant’s preventive detention
was still necessary. The applicant’s preventive detention was
ordered in these proceedings by the Regensburg Regional Court on 26
February 2004 and confirmed by the Nuremberg Court of Appeal on 23
April 2004 and by the Federal Constitutional Court on 28 September
2004. The present application was lodged with the Court on 12 October
2004. It was subsequently separated from the proceedings at issue in
application no. 30182/03 and registered under the current application
number. Application no. 30182/03, which concerned complaints relating
to the execution of the applicant’s prison sentence, was
declared inadmissible afterwards. The present application was
communicated by the President of the Fifth Section on 7 March 2007.
- Having
regard to the foregoing, the Court considers that in the proceedings
which alone are at issue here, the applicant exhausted domestic
remedies in that he obtained decisions of the Regional Court, the
Court of Appeal and the Federal Constitutional Court in accordance
with the formal requirements of domestic law, as required by Article
35 § 1 of the Convention, prior to lodging his (new) application
with the Court. The Government’s objection of non-exhaustion of
domestic remedies must therefore be dismissed in this respect.
- As
regards the Government’s additional objection of non-exhaustion
of domestic remedies, made in their further observations dated 14
June 2011, the Court notes, irrespective of the question whether the
Government should be considered estopped from raising that objection
(see Rule 55 of the Rules of Court), the following. According to its
well established case-law, under Article 35 § 1 of the
Convention, recourse should be had to remedies which are available
and sufficient to afford redress in respect of the breach of the
Convention alleged (see, among many other authorities, Akdivar and
Others v. Turkey, 16 September 1996, § 66, Reports of
Judgments and Decisions 1996 IV).
- As
noted above, the proceedings here at issue concern the applicant’s
preventive detention ordered and confirmed in 2004. The applicant was
released from preventive detention and expelled to Bulgaria on 13
December 2007. The new domestic remedy introduced subsequently, on 4
May 2011, by the Federal Constitutional Court for the review of
ongoing preventive detention is not, therefore, capable of affording
redress to the applicant in relation to his preventive detention at
issue in the present case and which had previously already come to an
end. The applicant thus did not have to avail himself of that remedy
for the purposes of Article 35 § 1 of the Convention.
Consequently, the Government’s objection of non exhaustion
of domestic remedies must also be rejected in this respect.
(b) Loss of victim status
- The
Court observes that the Government also objected that the applicant
could no longer claim to be the victim of a violation of his
Convention rights within the meaning of Article 34 of the Convention
as the Federal Constitutional Court had remedied the alleged
Convention violations by its judgment of 4 May 2011 and, in
particular, by the transitional rules it contained.
- The
Court refers to its well-established case-law on that issue (see,
inter alia, Eckle v. Germany, 15 July 1982, § 66,
Series A no. 51; Amuur v. France, 25 June 1996, §
36, Reports 1996 III; and Dalban v. Romania [GC],
no. 28114/95, § 44, ECHR 1999-VI). It agrees with the Government
that by its said judgment, the Federal Constitutional Court
implemented in the domestic legal order the Court’s findings in
its judgments on preventive detention in Germany (M. v. Germany
(cited above) and the follow-up cases thereto).
- Having
regard to the scope of the Federal Constitutional Court’s
judgment, however, it appears doubtful whether that court intended to
acknowledge a violation of Article 14 of the Convention, read in
conjunction with Article 5 § 1 of the Convention, in the
circumstances at issue in the present application. In any event, the
Court, referring to its findings above (see paragraph 64), considers
that the Federal Constitutional Court’s judgment of 4 May 2011
cannot be deemed to have afforded redress for the alleged breach of
Article 14 taken in conjunction with Article 5 § 1 resulting
from the applicant’s preventive detention as ordered by the
Regensburg Regional Court on 26 February 2004 and as confirmed on
appeal and by the Federal Constitutional Court itself on 28 September
2004.
- The
Government’s objection that the applicant has lost his victim
status must therefore likewise be rejected.
(c) Conclusion
- The
Court further notes that the application is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention. In particular, having regard to the material before it,
it considers that the applicant sufficiently substantiated his
application – which, having regard to that material, was
communicated by the President of the Fifth Section – in
accordance with Article 34 of the Convention and Rule 47 of the Rules
of Court. The Court further notes that the application is not
inadmissible on any other grounds. It must therefore be declared
admissible.
C. Merits
1. The parties’ submissions
(a) The applicant
- The
applicant complained of a violation of Articles 5 § 1 and 14 of
the Convention by the domestic courts’ decision to execute the
preventive detention order against him. He took the view that he had
been denied any measures and treatment in detention only because of
the fact that he was a foreign national. This had already been fixed
in the plan concerning the execution of his detention on his arrival
in prison and had not, therefore, been a result of his conduct in
prison.
- The
applicant stressed that he had not been given any chance to obtain
the suspension of his preventive detention and to be granted
probation. Without having previously proved reliable during
relaxations in the conditions of his detention, no expert would find
that there was no longer a risk that he would reoffend if released
and thus recommend the suspension of the execution of the preventive
detention order. He further stressed that under Article 11 of the
Execution of Sentences Act (see paragraph 47 above), it was necessary
for him to agree to measures relaxing the conditions of his
detention, but he had not been obliged to request such measures
himself. It was for the prison authority to examine on its own motion
whether these measures should be granted. As the prison authorities
had decided against granting him such measures already on his arrival
in prison and having regard to the applicable administrative rules
(see paragraph 48 above), any request made by him to be granted such
relaxations had, in any event, not had any prospects of success.
Being a foreigner against whom a final expulsion order was in force,
he had not been eligible for such measures.
- The
same applied to the refusal to offer him a social therapy or any
other preparations for his release. In view of this, his allegedly
negative conduct in prison or his allegedly lacking receptiveness for
a therapy had been irrelevant for that refusal. He further stressed
that a social therapy was aimed at developing social competences and
learning adequate conflict solution mechanisms. Unlike relaxations in
the conditions of a person’s detention, it was not aimed at
preparing a detainee’s future social contacts. His alleged lack
to accept his guilt and his negative conduct in prison should have
been an indication that he lacked social competence, which should
therefore have been addressed in a social therapy. He had been
refused that therapy in view of his foreign nationality, in
accordance with the current practice relating to the Execution of
Sentences Act. Any request by him to be offered such therapy also
with the Straubing Prison authorities would therefore have been to no
avail.
- The
applicant further claimed that, having regard to the way in which his
preventive detention had been executed, his deprivation of liberty
had been disproportionate. This had in fact been confirmed by the
recent leading judgment of the Federal Constitutional Court dated 4
May 2011. No measures had been taken during his detention aimed at
averting the risk that he would reoffend if released. By refusing to
offer him a social therapy by reference to his foreign nationality,
he had not been given any chance to avert the execution of the
preventive detention order against him. The suspension of the
execution of his preventive detention at the date of his expulsion to
Bulgaria under Article 456a of the Code of Criminal Procedure had
been ordered only after he had spent more than five years in
preventive detention. That procedure could not, therefore, compensate
for the lack of any measures aimed at the reintegration into society
of foreign nationals.
(b) The Government
- The
Government submitted that the applicant had not been discriminated on
grounds of his national origin, as prohibited by Article 14 of the
Convention, read in conjunction with Article 5 § 1 of the
Convention. He had not been treated differently compared to persons
in preventive detention of German nationality.
- The
Government argued that the order for the execution of the applicant’s
preventive detention had been made because of his dangerousness and
his unwillingness to critically reflect upon his offences. His
national origin did not play any role in that assessment.
- The
Government further stressed that the applicant had not been treated
less favourably than detainees of German nationality in relation to
therapeutic measures and relaxations in the conditions of his
detention. They noted that in the applicant’s submission, the
assessment of his dangerousness could have been in his favour if such
measures had been granted to him. However, as regards a social
therapy, the Government took the view that the applicant had not been
eligible for such – or any other – therapy (see section 9
§ 2 of the Execution of Sentences Act). It had not been possible
to treat him because he failed to reflect critically upon his
offences and to acknowledge his guilt. In such circumstances, a
detainee of German nationality would not have been offered a therapy
either. Moreover, a social therapy sought to influence a person’s
future social environment after his release and to assist him both
before and after his release. Therefore, a social therapy would not
be possible for any person in preventive detention who wished or had
to move abroad after his release, irrespective of whether that person
was of German or foreign nationality.
- Moreover,
the Government argued that relaxations in the conditions of the
applicant’s preventive detention, which the applicant had
applied for in July 2004 for the first time, had been refused for
risk of abuse. This refusal had not been linked to his national
origin or to the fact that an expulsion order had been made against
him as a detainee of German nationality would equally have been
refused such relaxations in the circumstances of the applicant’s
case. Therefore, it had not been due to the applicant’s
national origin that he had not been offered an opportunity to
display good conduct in the course of such a measure, which would
have led to a more advantageous prognosis as to his dangerousness.
- The
Government further submitted that there had been other therapeutic
measures in Straubing Prison, such as work, psychological and
educational care and different sports and leisure groups, which had
been available to all persons in preventive detention. As the
applicant made use of these offers only in part, he could not claim
that his treatment had been insufficient.
- Moreover,
the Government stressed that the plan concerning the execution of his
detention referred to by the applicant had to be made on his arrival
in prison and could not, therefore, take into account his conduct in
detention. However, that plan was regularly adapted to new
developments. It did not play a role for the ordering of measures
such as relaxations in the conditions of the applicant’s
detention or the transfer to a socio-therapeutic institution whether
such a measure had been foreseen in the said plan or not. The courts
had to determine whether, at the time of their decision, the legal
conditions for such a measure were met, irrespective of what had been
laid down in the plan concerning the execution of the detention of
the person concerned.
- The
Government further argued that the order for the execution of the
applicant’s preventive detention, having also regard to the
short period of its execution, had been proportionate despite the
limited offer of therapies and relaxations in the conditions of his
detention available to the applicant. The domestic courts had taken
these elements into account in examining the proportionality of the
applicant’s preventive detention.
- Finally,
the Government stressed that according to the findings of the
Regensburg Regional Court of 26 February 2004, a person could not be
remanded in preventive detention indefinitely only as a consequence
of his foreign nationality which in turn resulted in refusing him
relaxations in the conditions of his detention. The Munich I Public
Prosecutor’s Office had accordingly decided to dispense with
the further execution of the applicant’s preventive detention
at the date of his deportation and on 1 November 2007 at the
earliest.
2. The Court’s assessment
(a) Applicability of Article 14, taken in
conjunction with Article 5 of the Convention
- The Court reiterates that Article 14 complements the
other substantive provisions of the Convention and the Protocols. It
has no independent existence since it has effect solely in relation
to “the enjoyment of the rights and freedoms” safeguarded
by those provisions. However, the application of Article 14 does not
necessarily presuppose the violation of one of the substantive rights
guaranteed by the Convention and to this extent it is autonomous. For
Article 14 to become applicable it suffices that the facts of a case
fall within the ambit of another substantive provision of the
Convention or its Protocols (see Thlimmenos v. Greece [GC],
no. 34369/97, § 40, ECHR 2000 IV; Sommerfeld v.
Germany [GC], no. 31871/96, § 84, ECHR 2003 VIII
(extracts); and Kafkaris v. Cyprus [GC], no. 21906/04, § 159,
ECHR 2008 ...).
- Article
5 of the Convention does not guarantee a right to automatic parole
(see, for example, Gerger v. Turkey [GC], no. 24919/94, §
69, 8 July 1999; and Çelikkaya v. Turkey, no. 34026/03,
§ 60, 1 June 2010). However, where procedures relating to the
release of prisoners appear to operate in a discriminatory manner,
this may raise issues under Article 5 of the Convention taken
together with Article 14 (see Gerger, cited above, § 69;
Çelikkaya, cited above, § 63; and Clift v. the
United Kingdom,
no. 7205/07, § 42, 13 July 2010).
- In
the present case, the applicant’s preventive detention here at
issue was ordered by the Munich I Regional Court on 26 January 1996
together with his conviction of burglary. Such detention is, in
principle, covered by sub-paragraph (a) of Article 5 § 1 as
detention “after conviction” by a competent court (see M.
v. Germany, no. 19359/04, §§ 96 and 97-105, 17 December
2009; and Grosskopf v. Germany, no. 24478/03, §§
46-47, 21 October 2010). The applicant further alleges that the
domestic courts’ decision not to suspend on probation the
execution of the preventive detention order against him had been made
in a discriminatory manner. Accordingly, the facts of the case fall
within the ambit of Article 5 and Article 14 is applicable.
(b) Compliance with Article 14, taken in
conjunction with Article 5 of the Convention
(i) Relevant principles
- The
Court has established in its case-law that in order for an issue to
arise under Article 14 there must be a difference in the treatment of
persons in analogous, or relevantly similar, situations (see, inter
alia, D.H. and Others v. the Czech Republic [GC], no.
57325/00, § 175, ECHR 2007-...; and Clift,
cited above, § 66). Article 14 prohibits
differences in treatment based on an identifiable, objective or
personal characteristic, or “status”, by which persons or
groups of persons are distinguishable from one another (see Kafkaris,
cited above, § 160; and Clift,
cited above, § 55).
- Such
a difference of treatment is discriminatory if it has no objective
and reasonable justification; in other words, if it does not pursue a
legitimate aim or if there is not a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised (see Burden v. the United Kingdom [GC], no. 13378/05,
§ 60, ECHR 2008–...; Andrejeva v. Latvia [GC], no.
55707/00, § 81, ECHR 2009–...; and Sejdić and
Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06,
§ 42, ECHR 2009–...).
- The
Contracting States enjoy a certain margin of appreciation in
assessing whether and to what extent differences in otherwise similar
situations justify a different treatment (see Gaygusuz v.
Austria, 16 September 1996, § 42, Reports
1996-IV; and Burden, cited above, § 60). The scope of
this margin will vary according to the circumstances, the subject
matter and its background (see Andrejeva, cited above, §
82; and Sejdić and Finci, cited above, § 42). While
in principle a wide margin of appreciation applies in questions of
prisoner and penal policy, the Court must nonetheless exercise close
scrutiny where there is a complaint that domestic measures have
resulted in detention which was arbitrary or unlawful (see Clift,
cited above, § 73). Very weighty reasons would
have to be put forward before the Court could regard a difference of
treatment based exclusively on the ground of nationality as
compatible with the Convention (see Gaygusuz, cited above, §
42; and Andrejeva, cited above, § 87).
- As
to the burden of proof in relation to Article 14 of the Convention,
the Court has held that once the applicant has shown a difference in
treatment, it is for the Government to show that it was justified
(see D.H. and Others v. the Czech Republic, cited above, §
177; and Andrejeva, cited above, § 84).
(ii) Application of those principles to
the present case
(α) Difference in the treatment of
persons in relevantly similar situations
- The
Court shall therefore examine, first, whether the applicant in the
present case has been treated differently, compared to prisoners in a
relevantly similar situation, on grounds of his national origin,
namely his Bulgarian nationality, in relation to the order for the
execution of his preventive detention.
- The
Court notes in that context that the applicant’s complaint
concerns the domestic courts’ decisions relating to the
execution of a preventive detention order. The decision of whether
the execution of such an order is necessary or whether it can be
suspended and probation be granted is a risk-assessment exercise. The
order shall only be executed if there is still a risk that the person
concerned, after having served his prison sentence, will commit
further offences similar to those he was previously found guilty of
on his release and is thus still dangerous to the public (Article 67c
§ 1 of the Criminal Code, see paragraph 42 above). In so far as
the assessment of this risk is concerned, the applicant can claim to
be in an analogous situation to that of other prisoners of German
nationality against whom a preventive detention order has been made
by a sentencing court and where the courts dealing with the execution
of sentences have to determine whether or not that order shall be
executed. This appears indeed to be uncontested between the parties.
- In
determining whether the applicant has been treated differently in
relation to the order for the execution of his preventive detention
on grounds of his nationality, the Court must have regard to the
reasons given by the domestic courts for making that order. It notes
that both the Regional Court and the Court of Appeal, having
consulted a psychiatric expert, considered that the applicant refused
critically to reflect on and take responsibility for his offences and
that it was therefore very likely that he would reoffend on his
release (see paragraphs 18 and 22 above). As has also been argued by
the Government, this assessment as such does not disclose any
difference in treatment of the applicant based on his foreign
nationality.
- However,
it has been stressed by the domestic courts in the proceedings at
issue that there were important conditions for them to arrive at a
prognosis that a prisoner was no longer dangerous to the public which
would in turn lead to a finding that the execution of the preventive
detention order was not necessary and could thus be suspended and
probation be granted.
- Firstly,
the Regional Court, in particular, the decision of which was
confirmed on appeal, found that the successful completion of a
suitable therapy would be an important precondition for it to come to
the conclusion that the applicant was no longer dangerous to the
public. That court further noted that the psychiatric expert it had
consulted had considered it advisable for the applicant to undergo a
social therapy. It found, however, that the applicant had not been
admitted to a social therapy in Erlangen Prison he had previously
applied for, in 2002. In the Regional Court’s view, it was
clear that the applicant had been refused a social therapy –
the only therapy which had been considered adequate for the applicant
– in view of his imminent expulsion.
- Secondly,
the Regional Court observed that the prison authority had not relaxed
the conditions of the applicant’s detention whereas good
conduct in the course of such relaxations were another important
precondition for a finding of the court that the execution of the
preventive detention order against the applicant was not necessary.
It made it quite plain that, having regard to the usual practice, it
was also unlikely that the prison authority would do so in the future
as the applicant was not a German national (see paragraphs 19-20
above). It had taken that view despite the fact that, under section
11 of the Execution of Sentences Act and the administrative rules
relating to it (see paragraphs 47-48 above), at least short leave
under escort may be authorised for detainees against whom a final
expulsion order is in force and other, more far-reaching relaxations
in the conditions of detention may be granted in agreement with the
competent aliens’ authority.
- In
the Court’s opinion, it is clear from that reasoning that the
applicant had not been offered the only therapy considered suitable
by the psychiatric expert consulted by the domestic courts as well as
relaxations in the conditions of his detention in view of the final
expulsion order made against him, which he was and could only be
subject to as a foreign national. Unlike German nationals in his
situation, the applicant was thereby denied a chance to successfully
complete such a therapy, aimed at changing his attitude, and to prove
reliable during relaxations in the conditions of his detention and
thus to fulfil important preconditions for the domestic courts to
conclude that the execution of the preventive detention order against
him could be suspended on probation.
- The
Court further does not overlook that the Court of Appeal and the
Federal Constitutional Court, for their part, stressed in their
reasoning that in view of the applicant’s persistent refusal to
take responsibility for his past offences, there were no suitable
therapeutic measures to prepare him adequately for his release.
- The
Court would note in this respect at the outset that both the Court,
in its judgment in the case of M. v. Germany (cited above, §
129), and the Federal Constitutional Court, in its leading judgment
of 4 May 2011 (see paragraph 52 above), have stressed that persons in
preventive detention require an individualised and intensified offer
of therapy and care and have to be offered an individualised therapy
if the standard therapies available in the institution do not have
prospects of success. The same must apply to persons in the
applicant’s situation, against whom a preventive detention
order has been made and will be executed unless a necessary therapy
has been completed.
- The
Court is aware of the fact that the successful completion of
therapeutic measures necessitates the cooperation of the person
concerned. However, it is not convinced that, as has also been argued
by the Government, it was the applicant’s attitude and conduct,
and not his nationality, which was decisive for the refusal of the
only therapeutic measures considered advisable by the psychiatric
expert and the Regional Court. It notes, in particular, that under
the administrative practice relating to section 9 of the Execution of
Sentences Act (see paragraph 46 above), prisoners against whom an
enforceable expulsion order had been made were excluded from transfer
to a social therapeutic institution and that this practice was
apparently applied in the applicant’s case. Having regard to
all the material in its possession, the Court considers that,
irrespective of his conduct and of further requests for such
measures, the applicant would not have been granted the measures in
question in view of the final expulsion order against him. The Court
would add that, this situation having been made clear to the
applicant, there must have been little incentive for him to bring
about a change in his attitude as even after such a change, he would
not have been considered eligible for the measures at issue.
- The
Court concludes that the applicant was treated differently compared
to prisoners in a relevantly similar situation on grounds of his
national origin in relation to the order for the execution of his
preventive detention. He was denied a chance to fulfil essential
preconditions for the domestic courts to conclude that the execution
of the preventive detention order against him could be suspended and
probation be granted.
(β) Justification of the difference of
treatment
- The
Court shall therefore examine, second, if that difference of
treatment was justified, that is, if it pursued a legitimate aim and
was proportionate to the aim sought to be realised.
- The
Court notes that the aim pursued by the refusal to grant a social
therapy to foreign nationals who shall be expelled appears to be
based on the fact that the therapists were considered not being in a
position to prepare those prisoners for a life without offences in a
country the living conditions of which were not sufficiently known to
them. The refusal to grant relaxations in the conditions of detention
to foreign nationals against whom a final expulsion order has been
made appears to be to prevent them from absconding prior to having
served their term of imprisonment and to secure the execution of the
expulsion order afterwards. The aims pursued thus included securing
the execution of final decisions of the criminal courts and of
expulsion orders made against offenders and reserving available
therapies to those to whose needs they are most tailored. The Court
will examine the case on the assumption that those aims were
legitimate for the purposes of Article 14, taken in conjunction with
Article 5, in view of the following.
- In
determining whether the difference in treatment of the applicant at
issue was proportionate to the above aims pursued, the Court refers
to its above finding that very weighty reasons have to be put forward
by the Government in order to prove a difference of treatment based
on nationality to be justified (see paragraphs 87-88 above). It
observes that the refusal to grant the applicant measures usually
considered as important in order to obtain a suspension of the
preventive detention order on probation were not compensated by
offers of a different therapy or any other measures adapted to his
situation. It refers to its above findings on the importance of
offering such therapeutic measures for persons in or liable to be
held in preventive detention.
- Finally,
the Court observes that it was possible and considered by the
prosecution authorities to dispense with the further execution of the
preventive detention order against the applicant at the date of his
deportation (Article 456a of the Code of Criminal Procedure, see
paragraph 45 above). That measure, which is only applicable to
foreign nationals liable to be expelled and leads to them regaining
their liberty in their country of origin, can in principle be
considered as a measure favourable to foreign nationals and might
thus compensate for disadvantages suffered in the execution of the
preventive detention order against them. However, that measure was
not applied during the applicant’s preventive detention covered
by the proceedings here at issue. The Court further notes that it was
not applied until the applicant had spent some four and a half years
in preventive detention.
- Having
regard to the foregoing, the difference of treatment of the applicant
therefore lacked objective justification.
- There
has accordingly been a violation of Article 14, taken together with
Article 5 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed a total of 4,124 euros (EUR) in respect of
pecuniary damage. These comprised costs for the applicant’s
detention he had been charged with (EUR 120) and loss of potential
income in Bulgaria (EUR 4,004). The applicant submitted a certificate
dated 16 September 2005 showing that he had been ordered to pay the
said amount for costs of his detention.
- The
applicant further claimed EUR 36,000 in respect of non pecuniary
damage suffered as a result of his unlawful preventive detention,
which had entailed intense mental distress.
- The
Government submitted that the amounts claimed by the applicant in
respect of pecuniary damage had not been substantiated. They further
considered that the amount claimed by the applicant in respect of
non-pecuniary damage was excessive.
- The
Court observes that it has found a violation of Article 14, read in
conjunction with Article 5 of the Convention, as the applicant was
denied a chance to fulfil important preconditions for the domestic
courts to conclude that the execution of the preventive detention
order against him could be suspended on probation. It cannot
speculate as to whether, and if so, when the preventive detention
order would have been suspended and probation granted to the
applicant had there been no difference in treatment on grounds of his
nationality. Therefore, it has not been shown that there was a causal
link between the violation found and the pecuniary damage alleged.
The Court therefore rejects the applicant’s claim under that
head.
- On
the other hand, having regard to its above findings, it considers
that the applicant must have suffered distress as a result of the
failure to give him a chance to obtain the suspension on probation of
the preventive detention order against him. Making its assessment on
an equitable basis, it awards the applicant EUR 6,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 5,000 for the costs and expenses incurred
before the domestic courts and for those incurred before the Court.
He claimed that he had only been assigned a counsel by the courts in
the proceedings concerning the order for the execution of his
preventive detention.
- The
Government submitted that the applicant could have averted the costs
in the proceedings before the domestic courts by applying for legal
aid. The costs claimed had further not been substantiated.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
rejects the claim for costs and expenses incurred in the proceedings
before the domestic courts. It considers that the applicant failed to
substantiate in detail if he sustained costs in the only proceedings
here at issue, concerning the order for the execution of his
preventive detention, which were not covered by legal aid, and if so,
the exact amount of those costs.
- The
Court further considers it reasonable to award the sum of EUR 2,500
for costs and expenses incurred in the proceedings before the Court,
less EUR 850 received as legal aid payment from the Court, that is,
EUR 1,650, plus any tax that may be chargeable to the applicant.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
14 of the Convention, taken in conjunction with Article 5 of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts:
(i) EUR
6,000 (six thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,650 (one thousand six hundred and fifty euros), plus any tax that
may be chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 22 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann Registrar President
