Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 25629/94

H.F. K-F.

against

Germany

REPORT OF THE COMMISSION

(adopted on 10 September 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-37) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-31). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law

(paras. 32-37). . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

(paras. 38-67) . . . . . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 38). . . . . . . . . . . . . . . . . . . . .6

B. Point at issue

(para. 39). . . . . . . . . . . . . . . . . . . . .6

C. As regards Article 5 para. 1 of the Convention

(paras. 40-66). . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 67). . . . . . . . . . . . . . . . . . . . 10

DISSENTING OPINION OF MRS. LIDDY AND MM. PELLONPÄÄ,

BUSUTTIL, ROZAKIS, BRATZA, RESS . . . . . . . . . . . . . . 11

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 13

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a German national, born in 1936 and resident in

Karlsruhe.

3. The application is directed against the Federal Republic of

Germany. The respondent Government were represented by their Agent

Mr. J. Meyer-Ladewig, Ministerialdirigent, of the Federal Ministry of

Justice.

4. The admissible complaint concerns the applicant's arrest and his

subsequent detention at the Cochem-Zell Police Station. The applicant

invokes Article 5 of the Convention.

B. The proceedings

5. The application was introduced on 14 December 1993 and registered

on 9 november 1994.

6. On 22 February 1995 the Commission (First Chamber) decided,

pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give

notice of the application to the respondent Government and to invite

the parties to submit written observations on its admissibility and

merits.

7. The Government's observations were submitted on 27 April 1995.

The applicant's submissions in reply were received on 22 June 1995.

8. On 16 January 1996 the Commission declared admissible the

applicant's complaint under Article 5 para. 1 of the Convention. It

declared inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent

to the parties on 29 January 1996 and they were invited to submit such

further information or observations on the merits as they wished.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

12. The text of this Report was adopted on 10 September 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. In May 1991 the applicant and his wife rented a holiday apartment

in Ulmen where they lived as from 24 May 1991. They paid the rent in

respect of their stay in May.

17. On 4 July 1991, at 7.50 p.m, the Cochem-Zell Police Station

(Schutzpolizeiinspektion) was informed by Mrs. S. that her tenants, the

applicant and his wife, had caused a car accident and that they had

rented the apartment with the intention of not complying with their

tenancy obligations and were about to abscond without having paid

outstanding rent and telephone costs.

18. Upon their arrival at Ulmen, the police officers, having

consulted the competent public prosecutor (Staatsanwalt), inquired

about the further address of the applicant and his family in Bad Soden,

which turned out to be a mere postal address. The Bad Soden police

further notified that the applicant had already been subject to

criminal proceedings on the suspicion of fraud.

19. At 9.45 p.m., following the initial inquiries, Police Officer

Laux arrested the applicant and his wife on the suspicion of fraud.

The Police Officer assumed a risk of their absconding, as it appeared

that they had attempted to leave by car. They were brought to the

Cochem-Zell Police Station for verification of their personal data,

where they arrived at 11.00 p.m. A police report of 11.30 p.m.

referred to a strong suspicion of rent fraud and a danger of their

absconding. The examination of the applicant and his wife was

concluded on 5 July 1991 at 0.45 a.m.

20. During the night, further inquiries were conducted as to the

applicant's different addresses and information was received that the

applicant had been involved in other criminal proceedings on suspicion

of fraud and that preliminary investigations on the suspicion of fraud

were conducted against him by the Hanau Public Prosecutor's Office

(Staatsanwaltschaft).

21. In the morning of 5 July 1991 (between 8.30 and 9.40 a.m.),

Police Officer Blang again questioned the applicant and his wife.

Mrs. S. was heard at 9.05 a.m.

22. In a telephone conversation at about 9.25 a.m., the competent

Public Prosecutor at the Hanau Public Prosecutor's Office informed

Police Officer Berg of the Cochem Police about the criminal proceedings

conducted against the applicant in Hanau. He stated that there was no

intention to request an arrest warrant against the applicant.

23. At 10.30, the applicant and his wife were released. They were

brought back to Ulmen.

24. In September 1992 the Koblenz Public Prosecutor's Office

discontinued the investigations against the applicant and his wife,

noting in particular that they had paid most of the outstanding sums

in mid July 1991.

25. In October 1991 the applicant and his wife requested the Koblenz

Public Prosecutor's Office to prosecute the police officers and public

prosecutors involved in the events of 4 and 5 July 1991 on charges of

unlawful deprivation of liberty, attempted coercion and insult.

26. On 2 January 1992 the Koblenz Public Prosecutor's Office

discontinued investigations against the Police Officer Laux and three

other Police Officers, who had been involved in the arrest, and also

two public prosecutors. The Office considered that, having regard to

the charges raised by Mrs. S. and the situation found by the Police

Officers in Ulmen in the evening of 4 July 1991, there had been a

reasonable suspicion of fraud and a risk of their absconding.

27. On 21 May 1992 the Koblenz Court of Appeal (Oberlandesgericht),

upon the applicant's request for a court decision ordering the

prosecution of the four Police Officers, confirmed the decision of

2 January 1992. The Court found that there was no suspicion that the

Police Officers had committed unlawful deprivation of liberty and

coercion. The Court agreed with the reasoning of the Prosecutor's

Office as regards the suspicion of fraud and also considered that,

according to the police inquiries, the family's places of residence

were unclear, and, moreover, proceedings on several fraud charges were

already pending against the applicant. The Court finally stated that

it was not required to decide whether or not their continued detention

until the next morning had been necessary as at least the mens rea

could not be proven with the required certainty to justify the

conviction of the Police Officers for unlawful deprivation of liberty.

28. Subsequently the applicant complained to the Public Prosecutor's

Office that no formal decision had been taken upon his charges against

Police Officer Blang of the Cochem-Zell Police Station.

29. On 28 December 1992 the Public Prosecutor's Office also

discontinued these investigation proceedings for insult, unlawful

deprivation of liberty and coercion.

30. On 30 November 1993 the Koblenz Court of Appeal dismissed the

applicant's request for a judicial decision ordering the prosecution

of Police Officer Blang. Referring to its earlier decision, the Court

repeated that the applicant's detention had been necessary in view of

the suspicion of fraud and in order to check his personal data,

pursuant to S. 127 para. 1, S. 163 b of the Code of Criminal Procedure

(Strafprozeßordnung). There were no indications that Police Officer

Blang had been aware that the applicant's detention had already

exceeded the permissible period.

31. On 15 March 1994 the Federal Constitutional Court refused to

admit the applicant's constitutional complaint against the Court of

Appeal's decision of 30 November 1993.

B. Relevant domestic law

32. S. 112 to 131 of the German Code of Criminal Procedure

(Strafprozeßordnung) concern the arrest and detention of a person on

reasonable suspicion of having committed a criminal offence.

33. According to S. 112, detention on remand is ordered against a

suspect when there is a strong suspicion that he or she has committed

a criminal offence and if there is a reason for his or her detention

such as absconding, the danger of absconding or the risk of collusion.

34. S. 127 para. 1 provides for a provisional arrest if the offender

is apprehended in the act and if there is a risk of absconding or if

his personal data cannot immediately be established. This provision

also states that the establishment of the personal data by the police

or the Public Prosecutor's Office is governed by S. 163 b para. 1.

35. S. 163 b para. 1 provides that the police or the Public

Prosecutor's Office may take the necessary measures to establish the

identity of a person suspected of a criminal offence including his

arrest if necessary. Detention pursuant to S. 163 b may not exceed the

time necessary to establish the person's personal data (S. 163 c

para. 1), and it may not exceed a maximum period of 12 hours (S. 163 c

para. 3).

36. According to S. 127 para. 2, in case of immediate danger (Gefahr

im Verzug), the Public Prosecutor's Office or police officers may order

the provisional arrest of a person if the conditions for an arrest

warrant or confinement order are met.

37. S. 128 provides that the person who is arrested must, if not

released, be promptly brought before a judge at the district court

where the person was arrested, at latest during the day following his

arrest.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

38. The Commission has declared admissible the applicant's complaint

about his arrest and his subsequent detention at the Cochem-Zell Police

Station.

B. Point at issue

39. Accordingly, the point at issue is whether there has been a

violation of Article 5 para. 1 (Art. 5-1) of the Convention.

C. As regards Article 5 para. 1 (Art. 5-1) of the Convention

40. The applicant relies on Article 5 para. 1 (Art. 5-1) of the

Convention which, so far as relevant, provides 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:

...

c. the lawful arrest or detention of a person effected

for the purpose of bringing him before the competent legal

authority on reasonable suspicion of having committed an offence

or when it is reasonably considered necessary to prevent his

committing an offence or fleeing after having done so;

..."

41. The applicant complains that he was unlawfully arrested in the

evening of 4 July 1991, and detained until the morning of 5 July 1991,

at the Cochem-Zell Police Station. He considers that a minor tenancy

debt had been at issue which could not be regarded as fraud. Moreover,

he had not attempted to abscond. In any event, he should have been

released after his identity had been established, and his continued

detention had not been justified.

42. The Government submit that, at the time of the applicant's

arrest, there was a strong suspicion that the applicant had attempted

fraud to the disadvantage of his landlord and that he was about to

abscond, together with his family. Moreover, the applicant's place of

residence could not be established in Ulmen.

43. The Government further explain that the applicant's arrest and

detention were based on SS. 127 and 163 b of the Code of Criminal

Procedure. Even if his apprehension had first solely been effected for

the purposes of S. 163 b of the Code of Criminal Procedure, there had

also been the suspicion against the applicant that he had committed a

criminal offence and that there was a risk of his absconding. The

results of the police investigations regarding the applicant's address

and the other criminal proceedings pending against him strengthened

this suspicion. Only after the telephone conversation with the

competent Hanau Public Prosecutor's Office in the morning of

5 July 1991 to the effect that no arrest warrant against the applicant

would be requested, were the conditions for his detention, for reasons

of proportionality, no longer fulfilled. Finally, according to the

Government, the period of the applicant's detention had to be seen not

only under S. 163 c para. 3 of the Code of Criminal Procedure but in

the wider context of S. 127 paras. 1 and 2 and S. 128 of the Code of

Criminal Procedure.

44. The Government therefore maintain that the applicant's detention

was justified under Article 5 para. 1 (c) (Art. 5-1-c) of the

Convention.

45. Article 5 para. 1 (c) (Art. 5-1-c) permits the lawful arrest and

detention of a person effected for the purpose of bringing him before

the competent legal authority on reasonable suspicion of having

committed an offence.

46. The Commission notes that the applicant was arrested on charges

of fraud brought against him by his landlady Mrs. S. Thus, the Cochem-

Zell Police Station had been informed by Mrs. S. that her tenants, the

applicant and his wife, had caused a car accident and had rented the

apartment with the intention of not complying with their tenancy

obligations and were about to abscond without having paid outstanding

rent and telephone costs. When arresting the applicant at 9.45 p.m.,

following initial inquiries, the police officers assumed a risk of the

applicant's absconding, as it appeared that the applicant and his

family had attempted to leave by car. The applicant was subsequently

brought to the Cochem-Zell Police Station for verification of his

personal data and further questioning. The Public Prosecutor's Office

and the Koblenz Court of Appeal, in the context of the criminal

proceedings against various officials involved in the applicant's

arrest, confirmed that there had been a reasonable suspicion that the

applicant had committed an attempt of fraud and that there was a risk

of his absconding.

47. Accordingly, the arrest and subsequent detention of the applicant

were based on a reasonable suspicion of commission of an offence within

the meaning of Article 5 para. 1 (c) (Art. 5-1-c).

48. As to the purpose of the applicant's arrest and detention, namely

to bring the person concerned before the competent legal authority, the

Commission recalls that the existence of such a purpose must be

considered independently of its achievement and subparagraph (c) of

Article 5 para. 1 (Art. 5-1-c) does not presuppose that the police

should have obtained sufficient evidence to bring charges (cf. Eur.

Court HR., Brogan and Others v. the United Kingdom judgment of

29 November 1988, Series A no. 145-B, p. 29, para. 53). In the present

case, there is no reason to believe that the police investigation was

not in good faith or that the applicant's arrest and detention, having

been effected after consultation with a public prosecutor, was not

intended to further that investigation by way of establishing the

applicant's personal data and inquiring into the charges against him.

Thus, the applicant was again questioned in the morning of 5 July 1991

and so was his landlady. Had it been possible to confirm the suspicion

of attempted rent fraud, the applicant would have been, as can be

assumed, brought before the competent legal authority.

49. The applicant's arrest and detention must therefore be taken to

have been effected for the purpose specified in Article 5 para. 1 (c)

(Art. 5-1-c). In these circumstances, the Commission finds that the

applicant's arrest and detention in principle fall within the ambit of

Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.

50. The next issue to be determined is whether the applicant's arrest

and detention was "lawful", including whether it complied with "a

procedure prescribed by law".

51. The Commission recalls that the Convention here refers back

essentially to national law and lays down the obligation to conform to

the substantive and procedural rules thereof, but it requires in

addition that any deprivation of liberty should be consistent with the

purpose of Article 5 (Art. 5) , namely to protect individuals from

arbitrariness (cf. Eur. Court HR., Winterwerp v. the Netherlands

judgment of 24 October 1979, Series A no. 33, p. 17, para. 39, and p.

18, para. 40; Quinn v. France judgment of 22 March 1995, Series A no.

311, pp. 18-19, para. 47).

52. The applicant's arrest and detention were effected on the basis

of S. 127 and S. 163 b of the German Code of Criminal Procedure which

allow for the arrest and provisional detention of a person apprehended

in committing a criminal offence, if there is a risk of absconding, for

the purpose of establishing his personal data. The Commission, having

regard to the material before it, finds that the deprivation of the

applicant's liberty were based on these provisions (cf., mutatis

mutandis, Mc Veigh, O'Neill, Evans v. the United Kingdom, Comm. Report

18.3.81, D.R. 25 pp. 37-43, paras. 168-196).

53. The Commission observes that the Koblenz Court of Appeal, in its

decision of 30 November 1993 regarding Police Officer Blang, addressed

the procedural defect regarding the length of the applicant's

detention.

54. The Commission notes that the applicant was arrested on

4 July 1991 at 9.45 p.m. at Ulmen and then brought to the Cochem-Zell

Police Office, where he arrived at 11 p.m. In the course of the night,

investigations were conducted in particular as to his place of

residence. The police authorities also received information about

other investigation proceedings pending against the applicant, who was

questioned again in the early morning of 5 July 1991, between 8.30 and

9.40 a.m. The applicant was released on 5 July 1991 at 10.30 a.m. and

brought back to Ulmen.

55. The Koblenz Court of Appeal, in the said decision, considered

that the applicant's detention had exceeded the 12-hours'-period under

S. 163 c of the Code of Criminal Procedure.

56. The Government maintain that the applicant's detention was not

solely warranted for the purposes of establishing his identity,

pursuant to SS. 163 b of the Code of Criminal Procedure. Rather,

following the information about the suspicion of other fraud offenses

committed by the applicant, which could have possibly justified an

arrest warrant, the applicant's detention was permitted under S. 127

paras. 1 and 2. However, in such cases, S. 128 of the Code of Criminal

Procedure provided that the detainee had to be brought before the

competent judge at the latest on the day following his arrest. The

applicant had been released before the expiry of this time-limit.

57. According to the applicant, following the telephone conversation

with the Hanau Public Prosecutor's Office at 9.25 a.m., is was clear

that no request for an arrest warrant would be filed.

58. The Commission, having regard to the circumstances of the

applicant's arrest and the course of the further investigations pending

his detention, is not persuaded by the Government's argument which is

at variance with the findings of the Koblenz Court of Appeal as to the

legal basis of the applicant's arrest and detention. In particular, the

Government have not shown that the strict prerequisites for an arrest

and detention under S. 127 para. 2 of the Code of Criminal Procedure

had been met.

59. However, the Commission considers that in a case of deprivation

of liberty, some delay in the release of a detainee may be

understandable (cf. Eur. Court HR., Quinn judgment, loc. cit., p. 17,

para. 42), and would not necessarily entail a breach of the right to

liberty within the meaning of Article 5 para. 1 (Art. 5-1) of the

Convention. In this respect, the Commission is of the opinion that

practical reasons may justify a modest delay in releasing a detainee.

60. In the present case, the delay in the applicant's release

following his lawful detention lasted from 9.45 until 10.30 a.m. In

accordance with his wish, the applicant was then driven back by the

police from Cochem to Ulmen.

61. The Commission notes that the police measures regarding the

applicant's case in the morning of 5 July 1991, namely the applicant's

questioning, the questioning of Mrs. S. and the telephone conversation

with the Hanau Public Prosecutor's Office had all ended before

9.45 a.m., when the permissible period under S. 163 c of the Code of

Criminal Procedure expired.

62. The findings of the Koblenz Court of Appeal, in its decision of

30 November 1993, suggest that the Police Officer in charge had not

been aware that the applicant's detention had already exceeded the

permissible period. The Koblenz Court of Appeal therefore refused to

order the criminal prosecution of the Police Officer concerned.

63. The Commission recalls that, under the Convention system, it is

in principle not the task of the Convention organs to substitute their

own assessment of the facts for that of the domestic courts, and, as

a general rule, it is for these courts to assess the evidence before

them (Eur. Court HR., Klaas v. Germany judgment of 22 September 1993,

Series A no. 269, p. 17, para. 29).

64. The Commission considers, that, in the course of the proceedings

before it, no material has been produced which could call into question

the assessment of facts by the Koblenz Court of Appeal.

65. The Commission, having regard to all circumstances, finds no

cogent elements to show that the rather short delay of 45 minutes in

releasing the applicant deprived him of his liberty in an arbitrary

manner, contrary to the object and purpose of Article 5 para. 1

(Art. 5-1) of the Convention.

66. Accordingly, the applicant's arrest and detention between the

evening of 4 July and morning of 5 July 1991, including the period

between 9.45 and 10.30 a.m., were not incompatible with Article 5

para. 1 (c) (Art. 5-1-c) of the Convention.

CONCLUSION

67. The Commission concludes, by 7 votes to 6, that in the present

case there has been no violation of Article 5 para. 1 (Art. 5-1) of the

Convention.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

(Or. English)

DISSENTING OPINION OF MRS. LIDDY AND MM. PELLONPÄÄ,

BUSUTTIL, ROZAKIS, BRATZA, RESS.

To our regret, we cannot follow the reasoning or conclusion of

the majority of the Commission in this case. We recognise that the

period of delay in effecting the applicant's release was short.

However, having regard to the fundamental importance of the right to

liberty in a democratic society grounded on the rule of law, a

scrupulous supervision by the organs of the Convention is called for

wherever there is a deprivation of liberty. We cannot accept that a

short period of detention which is unlawful as a matter of domestic law

can be disregarded either on the grounds that it falls within a certain

margin of appreciation afforded to member States or by the application

of some "de minimis" principle. The maxim "de minimis non curat

praetor" is not part of the legal framework of the Convention and

certainly has no place in the context of the unlawful deprivation of

liberty. To delay the release of a person at a police station for even

a brief period beyond that permitted by domestic law, in circumstances

where there exist no compelling practical or technical reasons for the

delay, raises in our view an issue under Article 5 of the Convention.

On the material before us, we see no reason for the delay in the

applicant's release following his questioning in the morning of

5 July 1991, the questioning of Mrs. S. and the telephone conversation

with the Hanau Public Prosecutor's Office, all of which had ended

before 9.45 a.m., when the period permitted by S. 163 c of the Code of

Criminal Procedure expired. In this regard, we note that the Koblenz

Court of Appeal, in its first decision of 21 May 1992, raised the

question whether the applicant's continued detention until the next

morning had been necessary at all.

It is true that in certain circumstances, some delay in the

release of a detainee may be understandable (cf. Eur. Court HR., Quinn

judgment, loc. cit., p. 17, para. 42), as, for example, where such

delay results from the practical exigencies of the functioning of the

courts (Quinn v. France, Comm. Report 22.10.93, para. 41, Eur. Court

HR., Series A no. 311, pp. 23 et seq.). However, the respondent

Government have not advanced any plausible explanation as to why the

applicant could not have been released at 9.45 a.m. at the latest, but

had to be kept until 10.30 a.m. We note that, under the relevant

provisions of the Code of Criminal Procedure, the applicant's release

did not require any formal decision or the completion of any particular

formalities (a contrario, Quinn judgment, loc. cit.). Further, there

is nothing to suggest any tacit agreement on the part of the applicant

to remain in the police station until arrangements could be made to

drive him back from Cochem to Ulmen. Accordingly, the delay in

effecting his release cannot be attributed to the applicant himself.

The majority of the Commission seek to justify the prolonged

detention of the applicant by reference to the court decisions refusing

to order the prosecution of the officers concerned and refer to the

finding of the Koblenz Court of Appeal that there was nothing to

indicate that Police Officer Blang had been aware that the permissible

period of detention had been exceeded. In concluding that there has

been a violation of Article 5 of the Convention, we do not call into

question these decisions of the national authorities. However, the

question whether there was criminal liability as a matter of domestic

law is quite distinct from the question whether the detention complied

with the requirement of lawfulness in the Convention. Article 5

concerns the lawfulness of the detention and not the question whether

persons responsible for the unlawful detention are criminally liable.

In these circumstances, we consider that the applicant's

continued detention on 5 July 1991 between 9.45 and 10.30 a.m. was not

"lawful" and not "in accordance with a procedure prescribed by law"

within the meaning of Article 5 para. 1 (c) of the Convention.

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H.F. K-F v. GERMANY

H.F. K-F v. GERMANY

LEXI