THE FACTS

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

as follows:

The applicant is a German citizen born in 1929 and at present detained

in prison at B., Federal Republic of Germany.

On .. December 1968 the Regional Court (Landgericht) of F. convicted

the applicant of fraud in recidivism and sentenced him to five years'

imprisonment; by judgment of .. October 1966 the same court convicted

the applicant for fraud in 16 other cases to another five years'

imprisonment. In both judgments the Court also decided that the

applicant should be detained in preventive detention

(Sicherungsverwahrung) after having served his sentence. On .. June

1967, however, it had been decided to give the applicant a collective

penalty (Gesamtstrafe) of eight years' imprisonment instead of the

above two separate penalties, followed by preventive detention. This

decision has become res judicata (rechtskräftig).

On .. September 1968 the applicant requested the Regional Court at F.

to decide that the execution of the above sentence was unlawful and

that he should be released according to the provisions of Article 458

of the German Code of Criminal Procedure (Strafprozessordnung). The

applicant submitted that Articles 20a, 42e and 264 of the German

Criminal Code (Strafgesetzbuch), which form the basis of his

conviction, violated the provision of the German Basic Law

(Grundgesetz), the European Convention on Human Rights and the general

principles of international law. Article 20a of the Criminal Code

provides special rules for penalties for habitual criminals, Article

42e regulates the preventive detention for dangerous habitual criminals

and Article 264 gives the details as to the crime of fraud in

recidivism.

By decision of .. October 1968 the Regional Court at F. dismissed the

applicant's request. The Court held that the applicant's complaints

were inadmissible, since the lawfulness of a final judgment which is

the basis of the execution of the sentence cannot be examined in

proceedings concerning the execution of the sentence. The Court further

pointed out that the Federal Court (Bundesgerichtshof), by judgment of

July 1962, had declared that Article. 20a of the Criminal Code was not

at a variance with the Basic Law, and that the Federal Constitutional

Court (Bundesverfassungsgericht) had also found that Article 42e of the

above Code did not violate the Basic Law. The Court also expressed its

opinion that Article 264 was not unconstitutional and consequently

valid.

On the applicant's immediate appeal (sofortige Beschwerde), the Court

of Appeal (Oberlandesgericht) at F., on .. December 1968, confirmed the

Regional Court's decision.

The applicant then lodged a constitutional appeal

(Verfassungebeschwerde) with the Federal Constitutional Court. He

alleged that Articles 20a and 42e of the Criminal Code violated

Articles 2, 3, 103 and 104 of the German Basic Law, since they were

added to the Criminal Code under the Nazi regime and, consequently,

could not be considered as being "law" within the meaning of the German

law. He also indicated that, according to Article 5 of the Convention,

no one can be detained in prison unless such deprivation of the

personal liberty was provided for by law. Since the above Articles of

the Criminal Code were not enacted as "laws" in a democratic and

parliamentary sense, such as provided under the Basic Law, they could

not also be considered as being laws in the meaning of Article 5 of the

Convention.

By decision (Beschluss) of .. July 1969, the Federal Constitutional

Court dismissed the applicant's appeal as being inadmissible. The Court

held that the present appeal was made in the course of proceedings

concerning the execution of a judgment which was given by a court and

which has achieved the force of res judicata. Consequently, the

Constitutional Court could not deal with any alleged violation of the

Basic Law as regards this judgment as such. Only if the applicant could

show that the authorities which executed the judgement had committed

new violations of the Basic Law could the Constitutional Court examine

the appeal. This Court further indicated that the applicant should have

made his objections against his conviction on the basis of Articles 20a

and 42e of the Criminal Code in an appeal against the original judgment

of the Court concerned.

The applicant now complains that Articles 1, 5, 13, 14, 17 and 18 of

the Convention were violated in his case. The applicant alleges in this

respect that Articles 20a and 42e of the German Criminal Code

characteristically represented the Nazi ideology towards personal

liberty. Moreover, since these Articles have never been enacted by a

parliament, hence they have no democratic origin, they cannot be

considered as being "law" within the meaning of Article 5 of the

Convention. He also alleges that these Articles are not binding law

under the German Basic Law, but are applied by the German courts only

on a customary basis and cannot, consequently, serve as a valid basis

for his detention in prison.

THE LAW

Whereas the applicant submits that his preventive detention

(Sicherungsverwahrung) under Articles 20a and 42e of the German Penal

Code violated Article 5 (1) (Art. 5-1) of the Convention which permits

detention of a person only in certain circumstances and "in accordance

with a procedure prescribed by law"; that the above Articles of the

Penal Code were the sole legal basis of his detention; that these

Articles cannot be considered as being "law" within the meaning of

Article 5 (Art. 5) since, having been enacted under the Nazi regime on

24 November 1933, they characteristically represent the Nazi ideology

in regard to personal liberty; further, that these provisions, having

never been enacted by a parliament, had not democratic origin and were

not binding law under the German Basic Law (Grundgesetz); but were

applied by the German courts only by way of custom; whereas, for these

reasons, the applicant complains that no valid basis existed for his

detention in prison;

Whereas the Commission accepts that Articles 20a and 42e of the German

Penal Code had been introduced into the German Penal Code by a law of

24 November 1933 and therefore under the Nazi Government; that these

amendments of the Penal Code were not approved by Parliament but were

made under special legislative conditions, namely on the basis of the

Special Powers Act 1933 (Ermächtigungsgesetz);

Whereas the Commission notes that, as regards the legal status

generally of such laws as come into force prior to the entry into force

of the Basic Law, Article 123 (1) thereof provides as follows: "Law

from the period prior to the meeting of the Federal Parliament remains

in force, insofar as it is not incompatible with the Basic Law" ("Recht

aus der Zeit vor dem Zusammentritt des Bundestages gilt fort, soweit

es dem Grundgesetz nicht widerspricht"); that, consequently, all law,

which was enacted during the period of Nazi Government and which is not

incompatible with the Basic Law, remains in force and is valid today;

Whereas, with regard to the question whether preventive detention was

incompatible with the Basic Law, the German Federal Constitutional

Court held (BVerfGE 2, 118): "Article 104 (1) of the Basic Law provides

that any restriction of personal liberty has to have a legal basis.

This basis is in the present case Article 42e of the Penal Code ...";

that this Court thus held that Article 42e of the Basic Law was not

incompatible with the Basic Law and it follows that the provisions

concerning preventive detention, as were added to the German Penal Code

under the Nazi Government, are considered to be still in force and not

abrogated by the Basic Law;

Whereas, moreover, this jurisprudence regarding the validity of

restrictions of personal liberty affected under Nazi laws, which do not

involve violations of the German Basic Law, was similarly applied by

many German courts in different situations (see Court of Appeal of

Cologne , NJW 1962, p. 1216; Court of Appeal of Bavaria, NJW 1962, p.

453; Court of Appeal of Berlin, NJW 1963, p. 2135);

Whereas, the Court of Appeal of F. in its decision on the applicant's

appeal given on .. December 1968, found that: "Insofar as the convicted

alleges that the provisions of Articles 20a, 42e of the Penal Code have

been introduced by the law of 24 November 1933, that, consequently,

they were not enacted through the process of a democratic parliamentary

legislature, and that, therefore, they would not be formal law within

the meaning of Article 104 (1) of the Basic Law;

Whereas, thereby, he attacks the lawfulness of the judicial decision

... No objections exist as regards the lawfulness of the applicant's

conviction and the application of Articles 20a and 42e of the Penal

Code. The Penal Code has been again promulgated, including these

Articles in their present wording, on 25 August 1953. Thereby, the

legislature has included these provisions within its legislative

intention; this has the result that their validity cannot any longer

be questioned on the ground of their introduction by law of 24 November

1933. The legislative aim of Articles 20a and 42e of the Penal Code

was, moreover, already included in the draft Penal Code of 1925 and

1927."

Whereas the Commission, noting the reasons given by the German courts,

is satisfied that Articles 20a and 42e of the German Penal Code are

valid law under the Basic Law since these provisions were not

incompatible with the Basic Law and since, in any event, the Federal

legislature, when again promulgating the Penal Code in 1953, had

included the above provisions in the new version;

Whereas, consequently, the Commission finds that the applicant was kept

in preventive detention in accordance with the provisions of Article

5 (1) (a) (Art. 5-1-a) of the Convention, since it was a "lawful

detention of a person after conviction by a competent court" within the

meaning of the said Article; whereas, in this respect, the Commission

also refers to its constant jurisprudence (see inter alia decision on

the admissibility of Application No. 99/55, Yearbook, Vol. 1, p. 160);

Whereas the application is manifestly ill-founded and must be rejected

in accordance with Article 27, paragraph (2) (Art. 27-2), of the

Convention;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE