BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF REINER v. GERMANY
(Application
no. 28527/08)
JUDGMENT
STRASBOURG
19 January
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 Reiner v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Ann Power-Forde,
Ganna
Yudkivska,
Angelika Nußberger,
André
Potocki, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 13 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28527/08) 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 an apparently stateless
person, Mr Peter Ludwig Reiner (“the applicant”), on 8
June 2008.
- The
applicant, who had been granted legal aid, was initially represented
by Mr D. Hartmann, a lawyer practising in Cologne. The German
Government (“the Government”) were represented by their
Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, and by
their permanent Deputy Agent, Mr H.-J. Behrens, Ministerialrat,
of the Federal Ministry of Justice.
- The
applicant alleged that his continuing preventive detention violated
his right to liberty as provided in Article 5 § 1 of the
Convention.
- On
26 August 2008 the President of the Fifth Section granted the
applicant’s request to give priority to his application (Rule
41 of the Rules of Court). On 11 September 2008 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1932. When lodging his application, he was
detained in Aachen Prison. He currently lives in Erkelenz.
- The
applicant has been registered by the Aachen Pension Office as 80%
disabled since 1 January 2005. This finding was based, in particular,
on the applicant’s prostate disease, kidney disorder, heart
disease and severe walking disability.
A. Background to the case
1. The applicant’s previous convictions and the
order for his preventive detention
- Between
1952 and 1972 the applicant was convicted of numerous offences,
which, apart from one conviction for assault, were directed against
the property of others. These included fraud, theft and aggravated
theft, handling of stolen goods and extortion. The applicant was
sentenced nine times to terms of imprisonment of between three months
and four years and spent more than nine years in detention.
- On
6 June 1972 the Cologne Regional Court convicted the applicant on
seven counts of joint aggravated robbery. It sentenced him to
thirteen years’ imprisonment and ordered his preventive
detention.
- The
Regional Court found that the applicant had robbed seven banks
between 1968 and 1970 together with one or two accomplices. In each
case, he and his accomplice(s) had threatened the bank employees with
loaded guns and collected between 4,450 and more than half a million
German marks (DEM). Having heard evidence from a medical expert, the
Regional Court could not exclude the possibility that the applicant’s
criminal responsibility had been diminished at the time of the
offences because of an organic brain defect.
- Relying
on Article 42e of the Criminal Code and Article 20a of the Criminal
Code, in their versions in force before 1 April 1970, and on
Article 42e of the Criminal Code, in its version in force after
1 April 1970 (see paragraphs 43-45 below), the Regional Court also
ordered the applicant’s preventive detention. It observed that
the applicant had twice been sentenced to terms of imprisonment of at
least one year (for several acts of fraud, embezzlement, theft and
burglary). In addition, he had spent more than two years in prison on
two occasions and was now being sentenced to more than two years’
imprisonment for the robberies at issue. Furthermore, he had a
disposition to commit serious offences and was therefore dangerous to
the public. Since the age of twenty, he had committed different types
of increasingly serious offences against the property of others.
Through the offences committed since 1960 and the offences at issue,
he had caused substantial material damage and had acted with
considerable criminal energy. He did not feel like working and
financed his very costly lifestyle through crime.
2. Previous proceedings concerning the execution of the
preventive detention order
- On
17 December 1980 the Krefeld Regional Court suspended on probation,
with effect from 17 January 1981, the remainder of the applicant’s
prison sentence and his preventive detention as ordered in the
Cologne Regional Court’s judgment of 6 June 1972.
- On
26 October 1984 the Krefeld Regional Court revoked the
above mentioned suspension on probation as the applicant had
committed further offences (driving without a licence on two
occasions) and had refused to cooperate with his probation officer.
- On
8 February 1988 the applicant was arrested and placed in detention in
France. After his extradition to Germany, he served the remainder of
the sentence imposed on him in the judgment of 1972. Until 19 April
1994 he then served a further prison sentence imposed on him in 1992
for three offences of fraud (obtaining credit on three occasions on
false pretences) committed in 1983 and 1984, causing damage amounting
to DEM 215,200.
- On
2 March 1994 the Krefeld Regional Court again suspended on probation
the applicant’s preventive detention ordered in the judgment of
1972 pursuant to Article 67c § 1 of the Criminal Code (see
paragraph 47 below) and ordered the supervision of his conduct.
- On
20 December 1999 the Hagen Regional Court revoked the suspension on
probation of the applicant’s preventive detention as ordered by
the Krefeld Regional Court on 2 March 1994 pursuant to Article 67g §
1 of the Criminal Code (see paragraph 48 below). It had examined the
applicant, who had been represented by counsel. The court found that
in 1997 the applicant had been convicted on two further counts of
fraud causing damage amounting to DEM 200,000, committed in 1996 –
that is, during the period of supervision of his conduct – and
had been sentenced to two years and ten months’ imprisonment.
Moreover, his preventive detention was necessary in view of the
purpose of this measure. Despite the fact that he had repeatedly
served long prison sentences, the applicant had kept committing
increasingly serious offences for fifty years in order to obtain
substantial amounts of money. As confirmed by the convincing report
of a psychiatric and neurological expert, Sa., it was to be expected
that the applicant would commit further offences against the property
of others if released.
- Since
26 January 2000 the applicant, having served the sentence imposed in
the judgment of 1997, has been in preventive detention.
- On
31 October 2000 the Hamm Court of Appeal, having consulted a further
psychiatric expert, L., dismissed an appeal by the applicant against
the decision of the Hagen Regional Court. It found that there was
still a risk that the applicant would commit further acts of fraud
causing substantial economic damage if released.
- On
7 March 2002, 19 May 2004 and 19 July 2006 the Aachen Regional Court
dismissed requests by the applicant to suspend on probation his
preventive detention. Those decisions were confirmed on appeal by the
Cologne Court of Appeal (on 11 June 2002, 13 July 2004 and 10 October
2006 respectively). In the last-mentioned decision the Court of
Appeal, endorsing the reasons given by the Regional Court, notably
stressed that in view of his age, the applicant was liable to commit
acts of fraud rather than robberies. However, such offences equally
justified his preventive detention as the applicant was still liable
to commit offences causing considerable economic damage, as required
by Article 66 § 1 of the Criminal Code (see paragraphs 45-46
below). This had been demonstrated by his past acts of fraud, which
had caused considerable damage.
B. The proceedings at issue
1. The proceedings before the Aachen Regional Court
- On
16 December 2006 the applicant, represented by counsel, requested the
Regional Court to suspend on probation his preventive detention, in
particular because of his poor state of health.
- On
14 June 2007 the Aachen Regional Court dismissed the applicant’s
request for the suspension on probation of his preventive detention
as ordered by the Cologne Regional Court on 6 June 1972. It further
declared that no request for review of this decision would be
admissible within a one-year period (Article 67e § 3 of the
Criminal Code – see paragraph 49 below).
- The
Regional Court found that there was no basis to expect that the
applicant, if released, would not commit further serious offences
(Article 67d § 2 of the Criminal Code – see paragraph
50 below). In concluding that the applicant still had to be
considered dangerous, the Regional Court had regard to the decisions
of the Hagen Regional Court of 20 December 1999 and of the Hamm Court
of Appeal of 31 October 2000 (see paragraphs 15 and 17 above) and to
the reports of the two experts these courts had consulted. It further
referred to the reasoning set out in its decision of 19 July 2006 and
in the Court of Appeal’s decision of 10 October 2006 (see
paragraph 18 above).
- It
further found that it was clear from the report dated 4 January 2007
submitted by the governor of Aachen Prison, who had recommended not
suspending on probation the order for the applicant’s
preventive detention, that there had not been any developments on his
part warranting a different conclusion. Likewise, at the hearing of
his case on 2 April 2007 the applicant had again declared that he
considered himself to be detained unlawfully and had kept
trivialising his offences.
- His
personal circumstances could not lead to a different assessment
either. His contacts outside prison had deteriorated as his
relationship with his fiancée had ended. The applicant had
subsequently insulted and threatened her.
- Furthermore,
the applicant’s age and his state of health did not necessitate
the suspension on probation of his preventive detention. The Regional
Court had regard, in this connection, to a report dated 21 February
2007 submitted by the Aachen Prison doctor. The latter had stated
that the applicant suffered from prostate cancer, which was being
stabilised by hormonal medication. He had had an artificial hip
fitted in October 2006 without any complications. It had also been
possible to treat his heart disease with medication. The likelihood
of the seventy four year old applicant dying in the
years to come was slightly increased because of his illnesses.
- According
to the Regional Court, it was clear from the Aachen Prison doctor’s
report that the applicant’s illnesses were being treated
appropriately. His state of health did not alter the prognosis as to
his dangerousness. In the past, he had committed mainly non-violent
offences against property. His most recent acts of fraud, in respect
of which he had been convicted in 1992 and 1997, had caused
substantial economic damage. Committing such offences, however, did
not require particular physical fitness. Despite the applicant’s
impaired state of health and his age, his continuing detention was
proportionate because there was still a risk of his committing
serious offences causing considerable damage.
2. The proceedings before the Cologne Court of Appeal
- On
26 June 2007 the applicant, represented by counsel, lodged an appeal
against the Regional Court’s decision. He claimed that in view
of his poor state of health, he could no longer be considered
dangerous and complained that he had not had the conditions of his
detention relaxed in any way.
- On
19 September 2007 the Cologne Court of Appeal dismissed the
applicant’s appeal against the Regional Court’s decision
of 14 June 2007.
- Referring
to the reasoning in its decision of 10 October 2006 (see paragraph 18
above), the Court of Appeal found that the applicant’s
preventive detention was still necessary in view of his dangerousness
(Article 67c § 1 and Article 66 § 1 of the Criminal Code –
see paragraphs 47 and 45-46 below).
- The
court referred to a report dated 21 February 2006 by a medical
expert, Sch., whom it had previously consulted. The latter had found
that the applicant suffered from a personality disorder. This
finding, which was still valid, was at the root of his previous
offences and was the reason why he risked committing further offences
if released.
- The
applicant’s failure to reflect on his offences had been
confirmed by the governor of Aachen Prison. The latter had considered
that the applicant’s personality, which was the cause for his
committing offences, had not changed. As he had no family or friends
outside prison, he could, if anything, be placed in a supervised
residence (betreute Wohneinrichtung), but it could not be
ascertained whether he was sufficiently ready to cooperate. Moreover,
his social prospects in the event of his release had deteriorated as
his relationship with his fiancée had ended.
- Furthermore,
the applicant’s age and his state of health did not call into
question his continued dangerousness. There was still a risk of his
committing serious acts of fraud, an offence which he was able to
commit despite his illnesses.
- The
Court of Appeal noted that the negative prognosis as to the
applicant’s future conduct could partly have been caused by
misconduct on the part of the Aachen Prison management. Although it
had found, in its decision of 10 October 2006, that the granting of
measures relaxing the conditions of the applicant’s detention
was indispensable in order to assess his personality and to encourage
a change in his attitude, no such measures had been granted. The
applicant’s request to that effect had been rejected with an
inordinate delay. However, this did not warrant the suspension on
probation of the applicant’s detention as it was in the first
place his own attitude which was the reason for the negative
prognosis. The prison authorities were now called upon to take
reasonable measures to relax the conditions of the applicant’s
detention so that his release into a supervised residence could
become an option.
- The
Court of Appeal further found that the applicant’s continued
preventive detention, which had lasted for seven years, was
proportionate. The public interest in the detention of the applicant,
who still risked committing serious property offences, continued to
prevail over his own interest in personal liberty.
- On
12 November 2007 the Cologne Court of Appeal dismissed the
applicant’s objection to its decision of 19 September 2007.
3. The proceedings before the Federal Constitutional
Court
- On
7 October 2007 the applicant lodged a constitutional complaint with
the Federal Constitutional Court. He claimed that his continued
preventive detention since 26 January 2000 violated his right to
liberty as guaranteed by the Basic Law and Article 5 § 1 of the
Convention.
- On
21 January 2008 the Federal Constitutional Court declined to consider
the applicant’s constitutional complaint (file no. 2 BvR
2124/07) as it was ill-founded. The decisions of the courts
responsible for the execution of sentences had not disregarded the
applicant’s constitutional rights.
- The
Federal Constitutional Court referred to its well-established
case-law to the effect that preventive detention as such pursuant to
Article 66 § 1 of the Criminal Code was constitutional. In
the present case, the courts responsible for the execution of
sentences had found that there was a high risk that, if released, the
applicant would commit acts of fraud. Because of this risk, the
courts had rightly refused to set a date for the applicant’s
release despite the prison authorities’ failure to relax the
conditions of his detention. The court stressed, however, that the
prior relaxation of conditions of detention was not indispensable for
a prisoner’s release on probation, in particular if measures to
that effect had wrongly been refused. Should the prison authorities
persist in refusing such measures, it was for the applicant to seek
their enforcement before the courts.
- The
applicant’s continuing preventive detention was also not yet
disproportionate. The fact that the order for his preventive
detention had been made as far back as 1972, but had not been
implemented until 2000, did not warrant a different conclusion
because the offences he had committed in the meantime proved his
persisting dangerousness. Furthermore, according to the findings of
the courts responsible for the execution of sentences, the
applicant’s state of health was not so poor as to render his
detention disproportionate.
C. Subsequent developments
- On
12 June 2008 the Hamm Court of Appeal upheld a decision of the Aachen
Regional Court dated 25 March 2008 in which the latter had found that
the prison authorities’ refusal to grant the applicant’s
request for leave under escort was unlawful. The Court of Appeal
stated that the applicant was not likely to abuse the granting of
leave under escort. There were no grounds to assume that a
seventy-six-year-old prisoner who was severely disabled, suffered
from a walking disability and had no contacts outside prison was
likely to abscond alone or with the help of others. In so far as the
prison authorities had submitted that the applicant’s
preventive detention had been ordered in respect of an aggravated
robbery and thus a crime involving violence, the Court of Appeal
stressed that the order dated from 1972 and that currently, as
confirmed by a medical expert in 2006, there remained only a risk
that the applicant might commit acts of fraud.
- Since
September 2008 the applicant has regularly been granted leave under
escort.
- On
8 January 2010 the Aachen Regional Court declared that the
applicant’s preventive detention would end on 25 January 2010,
by which date he would have spent ten years in that form of detention
(Article 67d § 3 of the Criminal Code – see paragraph 51
below). It found that there was no risk that the applicant would
commit serious offences resulting in considerable psychological or
physical harm to the victims if released. The courts had repeatedly
considered that he might commit only non-violent property offences if
released. The applicant was released, accordingly, on 25 January 2010
and has been living in a residential care home in Erkelenz since
then.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
comprehensive summary of the provisions of the Criminal Code and of
the Code of Criminal Procedure governing the distinction between
penalties and measures of correction and prevention, in particular
preventive detention, and the making, review and practical execution
of preventive detention orders, is contained in the Court’s
judgment in the case of M. v. Germany (no. 19359/04,
§§ 45-78, 17 December 2009). The provisions relevant to the
present case can be summarised as follows.
A. The ordering of preventive detention by the
sentencing court
- In
accordance with the provisions on preventive detention since its
incorporation into the Criminal Code, a sentencing court may, at the
time of an offender’s conviction, order the offender’s
preventive detention under certain circumstances in addition to a
prison sentence if the offender has been shown to be dangerous to the
public.
- Pursuant
to Article 42e of the Criminal Code, in its version in force before 1
April 1970, preventive detention was to be ordered if, at the time of
conviction, the offender had been considered a dangerous habitual
offender within the meaning of Article 20a of the Criminal Code and
if preventive detention was necessary for guaranteeing public safety.
Article 20a of the Criminal Code ordered an increase of the penalty
notably if a person was sentenced for an intentional offence to a
term of imprisonment, if that person had already been sentenced twice
for an intentional offence to at least six months’ imprisonment
in each case and if a comprehensive assessment of his offences led to
the conclusion that he was a dangerous habitual offender.
- Article
42e of the Criminal Code, in its version in force as of 1 April 1970,
set stricter conditions for the preventive detention of an offender.
The sentencing court ordered preventive detention in addition to the
penalty, in particular, if someone was convicted of an intentional
offence and sentenced to at least two years’ imprisonment and
if the following further conditions were 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
presented a danger to the general public (see Article 42e § 1).
- Since
1 January 1975 the conditions for a preventive detention order have
been laid down in Article 66 of the Criminal Code. That version of
Article 66 § 1 of the Criminal Code corresponds to Article 42e §
1 of the Criminal Code in the version in force since 1 April 1970.
B. The order for execution of a preventive detention
order
- Article
67c of the Criminal Code governs orders for the preventive detention
of convicted persons which are not executed immediately after the
judgment ordering them becomes final. Paragraph 1 of the Article
provides that if a term of imprisonment is executed prior to a
simultaneously ordered placement in preventive detention, the court
responsible for the execution of sentences (that is, a special
chamber of the Regional Court composed of three professional judges –
see sections 78a and 78b(1)(1) of the Court Organisation Act) must
review, before completion of the prison term, whether the person’s
preventive detention is still necessary in view of its objective. If
that is not the case, it suspends on probation the execution of the
preventive detention order; supervision of the person’s conduct
(Führungsaufsicht) commences with suspension.
- Article
67g of the Criminal Code concerns the revocation of the suspension on
probation of a preventive detention order. Pursuant to paragraph 1,
point (1), the court responsible for the execution of sentences
revokes the suspension of a preventive detention order if the
convicted person, during the period of supervision of conduct,
commits an unlawful act which shows that the objective of the measure
necessitates his preventive detention.
C. Judicial review and duration of preventive detention
- 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 on probation. It is obliged to do so within fixed
time-limits (Article 67e § 1). For persons in preventive
detention, this time-limit is two years (Article 67e § 2). The
court may shorten this time-limit, but may also set terms within the
statutory limits for review before which an application for review is
inadmissible (Article 67e § 3).
- 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 time of the domestic courts’ decisions
at issue in the present case, provided that if there was no provision
for a maximum duration or if the time-limit had not yet expired, the
court should suspend on probation the further execution of the
detention order as soon as it was to be expected that the person
concerned would not commit any further
unlawful acts on his or her release.
- Article
67d § 3, in its version in force since 31 January 1998, provides
that if a person has spent ten years in preventive detention, the
court is to declare the measure terminated (only) if there is no
danger that the detainee will, owing to his criminal tendencies,
commit serious offences resulting in considerable psychological or
physical harm to the victims.
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.
THE LAW
- The
applicant complained that his continuing preventive detention since
26 January 2000 violated his right to liberty as provided in Article
5 § 1 of the Convention, which, in so far as relevant,
reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(a) the lawful detention of a person after
conviction by a competent court; ...”
- The
Government contested that argument.
A. Scope of the case before the Court
- The
Court observes that the applicant complained about his continuing
preventive detention “since 26 January 2000”. However,
the proceedings at issue, in respect of which he lodged his
application with the Court (in compliance with the six-month
time-limit under Article 35 § 1 of the Convention), cover only
his preventive detention as ordered by the Aachen Regional Court on
14 June 2007 and as confirmed on appeal. The present application
before the Court therefore concerns only the applicant’s
preventive detention as a result of these proceedings.
B. Admissibility
1. The parties’ submissions
- In
their observations on the admissibility and merits of the case dated
6 January 2009, submitted in accordance with Rule 54 § 2 (b) of
the Rules of Court, the Government contended that the application was
“admissible but unfounded”. In their further observations
dated 14 June 2011 the Government subsequently objected that the
applicant had failed to exhaust domestic remedies as required by
Article 35 § 1 of the Convention. They argued that in its
leading judgment of 4 May 2011 on preventive detention (see
paragraphs 52-54 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, 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.
- The
applicant did not comment on the Government’s new submissions.
2. The Court’s assessment
(a) Exhaustion of domestic remedies
- The
Court reiterates that according to Rule 55 of the Rules of Court, any
plea of inadmissibility must, in so far as its character and the
circumstances permit, be raised by the respondent Contracting Party
in its observations on the admissibility of the application submitted
as provided in Rule 54 (compare also Sejdovic v. Italy [GC],
no. 56581/00, § 41, ECHR 2006 II; Mooren v. Germany
[GC], no. 11364/03, § 57, ECHR 2009 ...; and
Medvedyev and Others v. France [GC], no. 3394/03, § 69,
ECHR 2010 ...). It observes that the Government objected that
the applicant had failed to exhaust domestic remedies only in their
further observations in reply to the applicant’s observations,
after having submitted in their initial observations on the
admissibility of the application that the latter was admissible.
Therefore, an issue arises as to whether the Government should be
considered to have been prevented from raising that objection at this
stage of the proceedings (compare also Stanev v. Bulgaria (dec.),
no. 36760/06, § 114, 29 June 2010).
- The
Court considers, however, that it is not necessary in the present
case to examine that question. 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).
- The
Court notes that the present case concerns the applicant’s
preventive detention as ordered on 14 June 2007 by the Aachen
Regional Court and as confirmed by the Cologne Court of Appeal (19
September 2007) and by the Federal Constitutional Court (21 January
2008). The applicant was released on 25 January 2010 following a
further judicial review of his preventive detention. 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 already come to an end on 25 January 2010. 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 be dismissed.
(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 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
reiterates that a decision or measure favourable to the applicant is
not in principle sufficient to deprive him of his status as a
“victim” of a violation of a Convention right within the
meaning of Article 34 of the Convention unless the national
authorities have acknowledged, either expressly or in substance, and
then afforded redress for, the breach of the Convention (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).
- The
Court notes that in its leading judgment of 4 May 2011, the Federal
Constitutional Court relied on the interpretation of Article 5 and
Article 7 of the Convention adopted by the Court in its judgment in
M. v. Germany (cited above) and the follow-up cases
thereto. It welcomes the Federal Constitutional Court’s
approach of interpreting the provisions of the Basic Law in the light
also of the Convention and the Court’s case-law, which
demonstrates that court’s continuing commitment to the
protection of fundamental rights not only at national, but also at
European level. It agrees with the Government that by its judgment,
the Federal Constitutional Court implemented in the domestic legal
order the Court’s findings in its above mentioned
judgments on preventive detention in Germany. It gave clear
guidelines both to the domestic criminal courts and to the
legislature on the conclusions to be drawn in the future from the
fact that numerous provisions of the Criminal Code on preventive
detention were incompatible with the Basic Law, interpreted, inter
alia, in the light of the Convention. Its judgment thus
reflects and assumes the joint responsibility of the States Parties
and the Court in securing the rights set forth in the Convention.
- 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 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 63),
considers that the Federal Constitutional Court’s judgment
cannot be deemed to have afforded redress for the alleged breach of
Article 5 § 1 resulting from the applicant’s preventive
detention as ordered by the Aachen Regional Court on 14 June 2007 and
as confirmed on appeal and by the Federal Constitutional Court itself
on 21 January 2008.
- The
Government’s objection that the applicant has lost his victim
status must therefore likewise be rejected.
- The
Court notes that the application 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.
C. Merits
1. The parties’ submissions
(a) The applicant
- The
applicant argued that preventive detention did not fall under any of
the sub-paragraphs (a) to (f) of Article 5 § 1. In particular,
he had not been lawfully detained “after conviction by a
competent court” within the meaning of Article 5 § 1 (a).
There had been an insufficient causal connection between a conviction
and his detention because his deprivation of liberty had been
exclusively preventive and thus not linked to a conviction. He
further submitted that the preventive detention order made against
him in 1972 following his conviction for armed robbery had not been
intended to prevent him from committing further acts of fraud.
- Moreover,
in the applicant’s submission, preventive detention was not
“lawful” as the criterion of a person’s
“dangerousness” owing to a “propensity to commit
serious offences” was too vague. He further stressed that he
had been in a very poor state of health which had necessitated
repeated treatment in hospital. He had been disabled at a rate of 80%
as a result of, inter alia, his severe walking disability. He
had also suffered from prostate cancer and kidney problems, had been
in serious pain and was therefore mortally ill. He had cooperated
with the investigation authorities. Therefore, he could no longer be
considered dangerous to the public.
(b) The Government
- The
Government took the view that the applicant’s preventive
detention in the present case had complied with Article 5 § 1 of
the Convention. It was justified under sub-paragraph (a) of Article 5
§ 1 as “detention of a person after conviction by a
competent court”. There had been a sufficient causal connection
between the order for the applicant’s preventive detention by
the sentencing Cologne Regional Court in 1972 and his deprivation of
liberty after 26 January 2000. The repeated suspensions of the
execution of the preventive detention order by the Krefeld Regional
Court on 17 December 1980 and on 2 March 1994 (see paragraphs 11
and 14 above) had not affected that causal connection as those
suspensions had had to be revoked following the applicant’s
fresh offences (see paragraphs 12 and 15 above).
- The
Government further argued that the causal connection between the
applicant’s conviction in 1972, which had included an order for
his preventive detention, and the order’s execution in 2000 had
likewise not been broken by the fact that twenty-eight years had
elapsed in the meantime. Referring to the Court’s judgment in
Eriksen v. Norway (27 May 1997, § 78, Reports
1997 III), they noted that such a causal link could
eventually be broken where the prolongation of a person’s
preventive detention no longer had any connection with the objectives
of the initial decision or was based on an assessment that was
unreasonable in terms of those objectives. However, the fact that the
applicant had reoffended after the preventive detention order had
been suspended and probation granted had demonstrated that the
initial assessment that he was dangerous to the public had been
correct.
- Furthermore,
in the Government’s submission, the applicant’s
preventive detention had been “lawful” and “in
accordance with a procedure prescribed by law” within the
meaning of Article 5 § 1. The preventive detention order could
lawfully be revoked under Article 67g of the Criminal Code.
- Moreover,
the Government took the view that the risk that the applicant might
commit serious property offences justified the execution of an order
for his preventive detention under the Criminal Code. The applicant
had committed increasingly serious property offences before his
preventive detention had been ordered in view of his conviction on
seven counts of aggravated bank robbery, committed with firearms. As
found by the domestic courts in the proceedings at issue, only
non violent property offences were to be expected from the
applicant in the future, having regard to his age and current state
of health. However, victims could also be seriously harmed physically
or mentally or be caused serious economic damage by such property
offences, as demonstrated by the frauds committed by the applicant in
1996. Only such serious property offences justified the making and
execution of an order for the applicant’s preventive detention
for a maximum of ten years (Article 67d § 3 of the Criminal Code
– see paragraph 51 above).
- The
domestic courts had carefully weighed the applicant’s interest
in his personal liberty against the public interest in security.
Having regard to the applicant’s previous offences and his
dangerousness, his continuing preventive detention was still
proportionate despite his state of health and his age. His state of
health was normal for his age. He currently suffered from renal
insufficiency, while the prostate carcinoma he had been diagnosed
with in 2005 did not necessitate any treatment. He was therefore not
seriously ill.
2. The Court’s assessment
(a) Recapitulation of the relevant
principles
(i) Grounds for deprivation of liberty
- The
Court reiterates the fundamental principles laid down in its case law
on Article 5 § 1 of the Convention, which have been summarised
in relation to applications concerning preventive detention, in
particular in its judgment of 17 December 2009 in the case of M.
v. Germany (cited above):
“86. Article 5 § 1 sub-paragraphs
(a) to (f) contain an exhaustive list of permissible grounds for
deprivation of liberty, and no deprivation of liberty will be lawful
unless it falls within one of those grounds (see, inter alia,
Guzzardi v. Italy, 6 November 1980, § 96, Series A no.
39; Witold Litwa v. Poland, no. 26629/95, § 49,
ECHR 2000 III; and Saadi v. the United Kingdom [GC],
no. 13229/03, § 43, ECHR 2008 ...). ...
87. For the purposes of sub-paragraph (a) of
Article 5 § 1, the word ‘conviction’, having regard
to the French text (‘condamnation’), has to be
understood as signifying both a finding of guilt after it has been
established in accordance with the law that there has been an offence
(see Guzzardi, cited above, § 100), and the imposition of
a penalty or other measure involving deprivation of liberty (see Van
Droogenbroeck v. Belgium, 24 June 1982, § 35, Series A
no. 50).
88. Furthermore, the word ‘after’
in sub-paragraph (a) does not simply mean that the ‘detention’
must follow the ‘conviction’ in point of time: in
addition, the ‘detention’ must result from, follow and
depend upon or occur by virtue of the ‘conviction’ (see
Van Droogenbroeck, cited above, § 35). In short, there
must be a sufficient causal connection between the conviction and the
deprivation of liberty at issue (see Weeks v. the United Kingdom,
2 March 1987, § 42, Series A no. 114; Stafford v. the United
Kingdom [GC], no. 46295/99, § 64, ECHR 2002 IV;
Waite v. the United Kingdom, no. 53236/99, § 65, 10
December 2002; and Kafkaris v. Cyprus [GC], no. 21906/04,
§ 117, ECHR 2008 ...). However, with the passage of time,
the link between the initial conviction and a further deprivation of
liberty gradually becomes less strong (compare Van Droogenbroeck,
cited above, § 40, and Eriksen, cited above, § 78).
The causal link required by sub-paragraph (a) might eventually be
broken if a position were reached in which a decision not to release
or to re-detain was based on grounds that were inconsistent with the
objectives of the initial decision (by a sentencing court) or on an
assessment that was unreasonable in terms of those objectives. In
those circumstances, a detention that was lawful at the outset would
be transformed into a deprivation of liberty that was arbitrary and,
hence, incompatible with Article 5 (compare Van Droogenbroeck,
cited above, § 40; Eriksen, cited above, § 78; and
Weeks, cited above, § 49).”
- In
taking their decision not to release or to redetain a person and in
assessing the sufficiency of the grounds on which that decision was
based, the national authorities have a certain discretion since they
are better placed than the international judge to evaluate the
evidence in a particular case (see Weeks, cited above, §
50 with further references).
- The
Court has had to determine whether there was a sufficient causal
connection between an initial conviction and a further deprivation of
liberty in the following cases in particular. In the case of Weeks
(cited above, §§ 42-51), the applicant, then aged
seventeen, was sentenced to life imprisonment in 1966 for armed
robbery as the sentencing court wanted to subject him to a security
measure in the interests of public safety, having regard to his
dangerousness. He was released in 1976, but recalled to prison in
1977 as a result of, inter alia, a series of incidents
involving minor violence whilst being drunk and the use of an air
pistol. The Court found that the applicant’s redetention could
not be regarded as arbitrary or unreasonable in terms of the
objectives of the sentence imposed and thus complied with Article 5 §
1 (a).
- In
the case of Stafford (cited above, §§ 81-83), the
applicant had been given a mandatory life sentence for murder in
1967, the punishment element of which he had served in 1979. Having
served a sentence for fraud (conviction in 1994) until 1997, the
applicant continued to be detained under the mandatory life sentence
imposed for the murder because there was a risk that he might commit
further non-violent offences. The Court found that there was no
sufficient causal connection, as required by sub paragraph (a)
of Article 5 § 1, between the applicant’s original
sentence for murder and his detention on the basis of the possible
commission of other non-violent offences some thirty years after that
conviction.
- In
the case of Waite (cited above, §§ 64-69), the
applicant was sentenced to detention at Her Majesty’s pleasure
for murder, committed in 1981 against a background of substance
abuse. Having been released in 1994 on life licence, he was recalled
to prison in 1997 following, in particular, his arrest for drug
possession and his admission that his drugs habit was beyond control.
The Court accepted that there was a sufficient causal connection
between the original conviction for murder and the recall to prison
for the purposes of Article 5 § 1 (a).
(ii) “Lawful” detention “in
accordance with a procedure prescribed by law”
- Any
deprivation of liberty must, in addition to falling within one of the
exceptions set out in sub-paragraphs (a) to (f) of Article 5 §
1, be “lawful”. Where the “lawfulness” of
detention is in issue, including the question whether “a
procedure prescribed by law” has been followed, the Convention
refers essentially to national law and lays down the obligation to
conform to the substantive and procedural rules thereof (see, among
many other authorities, Erkalo v. the Netherlands, 2 September
1998, § 52, Reports 1998 VI; Baranowski v.
Poland, no. 28358/95, § 50, ECHR 2000 III; and
Saadi, cited above, § 67).
- Compliance
with national law is not, however, sufficient: Article 5 § 1
requires in addition that any deprivation of liberty should be in
keeping with the purpose of protecting the individual from
arbitrariness (see, among many other authorities, Winterwerp,
cited above, §§ 37, 45; Erkalo, cited above, §§
52, 56; Saadi, cited above, § 67; and Mooren v.
Germany [GC], no. 11364/03, § 72, 9 July 2009).
(b) Application of these principles to the
present case
(i) Grounds for deprivation of liberty
- The
Court will determine, in the light of the foregoing principles,
whether the applicant, during the preventive detention at issue, was
deprived of his liberty in accordance with one of the sub-paragraphs
(a) to (f) of Article 5 § 1.
- The
detention at issue was justified under sub-paragraph (a) of Article 5
§ 1 if it occurred “after conviction”, in other
words if there was a sufficient causal connection between the
applicant’s criminal conviction by the sentencing court and his
deprivation of liberty in preventive detention since June 2007. The
Court notes that the applicant was convicted, for the purposes of
Article 5 § 1 (a), by the Cologne Regional Court in June 1972.
That court found him guilty, in particular, on seven counts of joint
aggravated (armed) bank robbery and ordered his preventive detention
in addition to a prison sentence (see paragraphs 8-10 above).
- The
Court notes the applicant’s argument that there was an
insufficient causal connection between a conviction and his detention
because his deprivation of liberty was exclusively preventive.
However, the Court would refer, in this connection, to its findings
in its recent judgment of 17 December 2009 in the case of M. v.
Germany (cited above). In that judgment, it found that preventive
detention ordered by a sentencing court under the German Criminal
Code was covered by sub-paragraph (a) of Article 5 § 1 as having
occurred “after conviction” in so far as it had not been
extended beyond the statutory maximum period applicable at the time
of the applicant’s offence and conviction (ibid., §§
96 and 97-105; see also Grosskopf v. Germany, no. 24478/03, §§
46-47, 21 October 2010).
- The
Court sees no reason to depart from its findings in the M. v. Germany
judgment (cited above). It notes that the applicant in the present
case was not detained, at the relevant time, for a period beyond the
statutory maximum period applicable at the time of his offence and
conviction. It therefore considers that the preventive detention of
the applicant under the Criminal Code could, in principle, have been
based on his “conviction”, for the purposes of Article 5
§ 1 (a), by the Cologne Regional Court in June 1972.
- It
remains to be determined whether the applicant’s preventive
detention during the period at issue occurred “after”
conviction – that is, whether there remained a sufficient
causal connection between his conviction and the deprivation of
liberty at issue. The Court notes at the outset that the causal
connection between the applicant’s conviction and his
preventive detention was not broken because of the initial
provisional suspensions of the preventive detention order on 17
December 1980 and on 2 March 1994 (see paragraphs 11 and 14 above),
as those suspensions had been revoked on 26 October 1984 and on 20
December 1999 respectively (see paragraphs 12 and 15 above).
- The
Court further has to determine whether the requisite causal link
might have been broken because the courts’ decisions not to
release the applicant were based on grounds which were inconsistent
with the objectives of the decision by the sentencing court when
ordering preventive detention or based on an assessment that was
unreasonable in terms of those objectives (see paragraph 77 above).
- The
Court observes, first, that the sentencing Cologne Regional Court
ordered the applicant’s preventive detention in 1972 in view of
his conviction for seven bank robberies, committed jointly with
others with the help of guns. In the proceedings at issue, the courts
responsible for the execution of sentences ordered, in 2007 and 2008,
the further execution of the preventive detention order made in 1972
because they considered that it was still likely that the applicant,
who had not changed his attitude, would commit serious non-violent
property offences such as fraud if released (see paragraphs 25, 31,
33 and 37 above).
- Having
regard to the grounds given for the further execution of the
applicant’s preventive detention, the Court observes that it
was uncontested that the applicant, in view of his age and his state
of health, was liable to commit only non-violent property offences
such as fraud (see paragraphs 25, 31 and 37 above). The Court
considers that there is a marked difference between such offences and
violent offences such as armed robberies, following which the
applicant’s preventive detention had initially been ordered by
the sentencing court.
- However,
in determining whether the grounds given by the courts in the
proceedings at issue were consistent with the objectives of the
decision by the sentencing court when ordering preventive detention,
the Court must not only have regard to the offences in relation to
which the preventive detention order was imposed. Having regard to
its previous case-law on the issue (see, in particular, paragraphs
79-81 above), it must also take into account the reasons given by the
sentencing court for imposing the sanction at issue – that is,
preventive detention for the offences committed.
- The
Court notes in this connection that the sentencing Cologne Regional
Court found that since the age of twenty, the applicant had committed
different types of increasingly serious property offences, including
fraud, embezzlement, theft and burglary – that is, non-violent
offences. It was decisive for the Cologne Regional Court in making a
preventive detention order that the applicant financed his costly
lifestyle through crime and had caused substantial material damage by
his acts (see paragraph 10 above). The seriousness of the applicant’s
offences, according to the Regional Court’s findings, did not
therefore stem from the fact that he had committed his most recent
offences with the use of force, but from the considerable damage
caused to the property of others.
- Having
regard to this reasoning, the Court is therefore satisfied that the
grounds given by the courts responsible for the execution of
sentences for not releasing the applicant – as he risked
committing serious acts of fraud – were consistent with the
objectives of the sentencing court’s judgment, namely to
prevent him from committing further serious (violent or non-violent)
property offences.
- In
determining whether the decision to continue the execution of the
preventive detention order was unreasonable in terms of that
objective, the Court observes that more than thirty-five years passed
between the order for the applicant’s preventive detention and
its continued execution. It is clear that with such a long passage of
time alone, the link between the initial conviction and a deprivation
of liberty became less strong. However, that lapse of time does not
in itself render the applicant’s preventive detention
unreasonable.
- The
Court notes in that connection that the applicant did not only serve
a long prison sentence for joint aggravated robbery imposed by the
Cologne Regional Court’s 1972 judgment. The execution of the
order for his preventive detention had in fact been suspended and
probation had been granted twice, in 1980 and 1994. Those
suspensions, however, had to be revoked in 1984 and 1999 respectively
following the applicant’s fresh convictions, in particular, for
fraud in 1997 (see paragraphs 11-15 above). The long lapse of time
between the order for the applicant’s preventive detention and
its execution therefore resulted from the fact that the applicant
served several prison sentences imposed for further offences
committed afterwards and had proven unable to seize the opportunities
for probation offered to him.
- The
Court further notes that at the time the courts ordered the continued
execution of the preventive detention order, the applicant was
already of an advanced age (seventy-four). He was found to be
suffering from prostate cancer and heart disease, both being
stabilised by medication, from a kidney disorder and a severe walking
disability. In view of these factors, the question arises whether the
domestic courts could reasonably consider the applicant still to pose
a threat to the public.
- The
Court observes, however, that the domestic courts thoroughly examined
that question, having regard to the applicant’s state of health
and age. In particular, they consulted the prison doctor on the
applicant’s condition. The doctor confirmed the illnesses the
applicant had claimed to be suffering from, but contested that the
applicant was mortally ill (see paragraph 24 above). In coming to
their conclusion that the applicant could, at the relevant time, not
yet be considered physically incapable of committing further acts of
fraud, the domestic courts took into account, in particular, the fact
that his most recent acts of fraud had not necessitated particular
physical fitness (see paragraphs 25, 31 and 38 above). The applicant
had indeed committed his last offence in 1996 (see paragraph 15
above), when he was already of a relatively advanced age
(sixty-four).
- Having
regard to the foregoing and noting also that the applicant has been
released in the meantime, the Court is satisfied that the decision to
continue the execution of the order for the applicant’s
preventive detention could still be considered reasonable in terms of
its objective at the relevant time.
- Therefore,
there remained a sufficient causal connection between the applicant’s
criminal conviction in 1972 and his continued preventive detention
for the purposes of sub-paragraph (a) of Article 5 § 1.
(ii) “Lawful” detention “in
accordance with a procedure prescribed by law”
- The
Court must further determine whether the applicant’s preventive
detention was “lawful” and “in accordance with a
procedure prescribed by law” as required by Article 5 § 1.
- The
Court is satisfied that the domestic courts ordered the applicant’s
continued preventive detention in compliance with the procedural and
substantive rules of national law as such. It takes note, in this
connection, of the reversal of the Federal Constitutional Court’s
position concerning preventive detention in its leading judgment of 4
May 2011 (see paragraphs 52-54 above). In the judgment in question
the Federal Constitutional Court considered, inter alia, that
Article 66 of the Criminal Code, in its version in force since 27
December 2003, did not comply with the right to liberty of the
persons concerned. The Court notes, however, that the applicant’s
preventive detention at issue in the present case was ordered and
executed on the basis of a previous version of Article 66 of the
Criminal Code (Article 42e of the Criminal Code and Article 20a of
the Criminal Code, in their versions in force before 1 April 1970,
and Article 42e of the Criminal Code, in its version in force after 1
April 1970 – see paragraphs 10 and 43-45 above).
- In
any event, Article 66 of the Criminal Code in its version in force
since 27 December 2003 was not declared void with retrospective
effect, but remained applicable and thus formed a valid legal basis
under domestic law, in particular for the time preceding the Federal
Constitutional Court’s judgment. Therefore, the lawfulness of
the applicant’s preventive detention for the purposes of
Article 5 § 1 is not called into question on this ground.
- Detention
must, however, also be in conformity with the purpose of Article 5 §
1, which is to prevent persons from being deprived of their liberty
in an arbitrary fashion (see paragraph 83 above). The Court notes in
this connection that the continuation of the applicant’s
preventive detention was ordered in the proceedings at issue because
his attitude towards his property offences had not changed and he was
therefore still dangerous to the public. The domestic courts noted,
however, that this negative prognosis could partly have been caused
by the misconduct of the Aachen Prison management. The latter had
failed to grant the applicant measures relaxing the conditions of his
detention, which would have been important in order to assess his
personality and to encourage a change in his attitude (see paragraph
32 above).
- The
Court considers that an issue arises as to whether detention is
lawful – including whether no element of arbitrariness is
present – in cases in which a person is detained only because
he or she is considered dangerous to the public, but where that
person, at the same time, is deprived of the necessary opportunity to
demonstrate that he or she has changed his or her attitude and no
longer poses a threat to the public.
- The
Court notes, however, that the domestic courts did not base their
assessment that there was still a high risk that the applicant would
commit serious acts of fraud if released on his failure to
demonstrate a change in his attitude during relaxations in the
conditions of his detention (see, in particular, paragraphs 32 and 37
above). The domestic courts noted, in particular, that there had not
been any positive development at all on the applicant’s part
indicating that his dangerousness had diminished (see, in particular,
paragraphs 22-23, 29-30 and 37 above). Moreover, the Federal
Constitutional Court stressed that the prior relaxation of the
conditions of the applicant’s detention was not indispensable
for the suspension on probation of the order for his preventive
detention, in particular if such relaxations had been refused
unlawfully (see paragraph 37 above). The Court further takes note of
the fact that the applicant was subsequently granted leave under
escort on a regular basis on the domestic courts’ orders (see
paragraphs 39-40 above).
- Having
regard to the foregoing, the Court is satisfied that the applicant’s
preventive detention in the period at issue in the present case was
“lawful” for the purposes of Article 5 § 1.
- There
has accordingly been no violation of Article 5 § 1 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 5 § 1 of the Convention.
Done in English, and notified in writing on 19 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
