Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25629/94

by H.F. K.-F.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 16 January 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 December 1993

by H.F. K.-F. against Germany and registered on 9 November 1994 under

file No. 25629/94;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 27 April 1995 and the observations in reply submitted by

the applicant and received on 22 June 1995;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

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

in Karlsruhe.

A. Particular circumstances of the case

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.

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 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.

At 9.45 p.m., following initial inquiries with Mrs. S. and her

family as well as with the applicant and his family at their address

in Ulmen, the applicant and his wife were arrested on suspicion of

fraud. The police officers 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. The details of the charges

against them and of the circumstances of their arrest were recorded in

a police report completed on 5 July 1991 at 0h45.

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

had been conducted against him by the Hanau Public Prosecutor's Office

(Staatsanwaltschaft).

The applicant was questioned in the morning of 5 July 1991

(between 8.30 and 9.40 a.m.). Mrs. S. was heard at 9.05 a.m.

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

Public Prosecutor at the Hanau Public Prosecutor's Office informed the

Cochem Police about the proceedings conducted against the applicant in

Hanau and stated that there was no intention to request an arrest

warrant against the applicant.

At 10.30, the applicant and his wife were released and brought

back to Ulmen.

In September 1992 the Koblenz Public Prosecutor's Office

(Staatsanwaltschaft) 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.

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.

On 2 January 1992 the Koblenz Public Prosecutor's Office

discontinued investigations against the Police Officers L., W., K., R.

who had been involved in their arrest, and also two public prosecutors.

The Office considered that, having regard to the charges raised by the

landlord Mrs. S. and the situation found by the Police Officers in

Ulmen in the evening of 4 July 1992, there was a reasonable suspicion

of fraud and a risk of their absconding.

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 question whether there had

been a need to detain them until the next morning could be left open

as there had been no intention to deprive them unlawfully of their

liberty.

Subsequently the applicant complained to the Public Prosecutor's

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

a fifth Police Officer of the Cochem Police Station.

On 28 December 1992 the Public Prosecutor's Office also

discontinued these investigation proceedings for insult, unlawful

deprivation of liberty and coercion.

On 30 November 1993 the Koblenz Court of Appeal dismissed the

applicant's request for a judicial decision ordering the prosecution

of this Police Officer. 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 the Police

Officer concerned had been aware that the applicant's detention had

exceeded the permissible period of 12 hours.

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

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.

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.

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.

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 and it may not

exceed a total period of 12 hours (S. 163 c).

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.

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.

S. 98 of the Code of Criminal Procedure concerns the seizure of

objects in the course of criminal proceedings. In its paragraph 1 it

stipulates the principle that a seizure is effected on the basis of a

seizure warrant issued by a judge. According to its paragraph 2, any

officer having seized an object without a seizure order should, within

three days, arrange for confirmation by a judge of the seizure

concerned, in the event that the persons concerned by the seizure were

not present at the relevant time or that they objected to the seizure.

Moreover, the person concerned can request a decision by a judge at any

time.

S. 23 para. 1 of the Introductory Act to the Courts Organisation

Act (Einführungsgesetz zum Gerichtsverfassungsgesetz) provides for a

review by the courts of ordinary jurisdiction (ordentliche Gerichte)

of the lawfulness of orders, decrees or other measures taken by

judicial authorities (Justizbehörden) in order to determine individual

matters in the areas of civil law including commercial law, civil

procedure, jurisdiction in non-contentious matters and the criminal

justice system. S. 28 para. 1 of the Introductory Act provides inter

alia that, to the extent that the measure concerned was unlawful and

prejudiced the complainant, the court shall set the measure aside; or

if the measure had been withdrawn or otherwise terminated, it shall,

upon request, render a declaratory decision that the measure concerned

was unlawful, if the complainant can justify an interest in such a

decision.

COMPLAINTS

The applicant complains that he was unlawfully arrested, detained

and questioned at the Police Station because of a minor tenancy debt.

He also alleges that he was insulted and intimidated in the

course of his arrest and detention and that some objects in his

possession upon the arrest were taken by police officers and not

returned. He further submits that the police prevented him from

entering his apartment when he returned to Ulmen and that he was forced

to leave his apartment in Ulmen and the region of Ulmen.

He invokes Articles 3, 5, 8 of the Convention, Article 1 of

Protocol No. 1 and Articles 1 and 2 of Protocol No. 4.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 December 1993 and registered

on 9 November 1994.

On 22 February 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on 27 April

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

1995.THE LAW

1. The applicant complains that his arrest in the evening of

4 July 1991 and detention until the morning of 5 July 1991 constituted

an unlawful deprivation of liberty.

The applicant's submissions in this respect raise an issue under

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;

..."

a. The Government consider that the applicant failed to exhaust, as

required under Article 26 (Art. 26) of the Convention, the remedies

available to him under German law.

The Government submit in particular that, as regards the question

whether his arrest should have taken place, the applicant could have

turned to the Investigating Judge at the District Court (Amtsgericht),

relying on an analogous or interpretative application of S. 98 para. 2

of the Code of Criminal Procedure.

Moreover, the Government maintain that the applicant could have

applied to the competent Court of Appeal under S. 23 para. 1 of the

Introductory Act to the Courts Organisation Act. The continuing

interest in having the question of the lawfulness of his detention

determined in the context of these remedies could, in accordance with

the relevant case-law of the Federal Constitutional Court, be justified

in cases of a danger of repetition, arbitrariness or discriminatory

effects calling for rehabilitation. The Government state that they are

not able to make a definite prognosis as to whether, in the context of

the above two possibilities, the applicant could have obtained a

subsequent determination of the unlawfulness of the measures taken

against him. However, they consider that these remedies do not from

the outset appear void of prospects of success. Moreover, these

remedies were no alternatives or equivalents to the proceedings pursued

by the applicant in order to enforce criminal proceedings against the

police officers and the public prosecutors. In this context, the

Government observe that the Convention does not grant a right to

enforce criminal proceedings against third persons.

The applicant objects to the Government's views.

According to Article 26 (Art. 26) of the Convention, the

Commission may only deal with the matter after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law, and within a period of six months from the date on

which the final decision was taken.

In the present case, the applicant attempted to enforce criminal

proceedings against the officials involved in his arrest and detention.

The question arises whether the request of criminal prosecution

measures against the public officials involved in his arrest and

detention, and the ensuing request for a court decision ordering their

prosecution, constitutes, in respect of the applicant's complaint of

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

effective remedy under German law which suffices for the purposes of

Article 26 (Art. 26).

The Commission recalls that the rule of exhaustion of domestic

remedies dispenses the States from answering before an international

body for their acts before they have had an opportunity to put matters

right through their own legal system. However, international law, to

which Article 26 (art. 26) makes express reference, demands solely

recourse to such remedies as are both available to the persons

concerned and sufficient to provide for redress (cf. Eur. Court H.R.,

De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12,

p. 29, para. 50, and p. 33, para. 60).

The Commission finds that, following the criminal charges brought

by the applicant against in particular the police officers involved in

his arrest and his ensuing detention, the German prosecuting

authorities and the Court of Appeal had to consider the question of the

lawfulness of the police measures concerned in order to determine

whether there was a suspicion that the police officers had committed

the criminal offence of unlawful deprivation of liberty. In the

proceedings for a court decision ordering the prosecution, the Court

of Appeal, in its decisions of 21 May 1992 and 30 November 1993,

examined in detail whether the conditions under German law for

arresting the applicant on a suspicion of fraud had been met. The

Court of Appeal, in its decision of 30 November 1993, also considered

that the applicant's detention had exceeded the permissible period of

12 hours, pursuant to the relevant provision of the Code of Criminal

Procedure.

The Commission, assuming that the applicant could have in

principle availed himself of further remedies as indicated by the

Government, considers that the proceedings for the enforcement of

public prosecution pursued by him constituted, having regard to the

Court of Appeal's decisions, an effective and sufficient remedy under

German law with regard to the complaint of unlawful deprivation of

liberty which he now raises before the Commission under Article 5

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

The condition under Article 26 (Art. 26) of the Convention that

domestic remedies must be exhausted has, therefore, been met.

b. The Government further maintain that the applicant's detention

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

Convention.

The Government submit in particular 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.

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 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.

The applicant submits that there had been no reasonable suspicion

against him of having committed a criminal offence, as the mere fact

of outstanding rent 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.

The Commission considers that this issue raises questions of fact

and law which can only be determined by an examination of the merits.

It follows that this complaint cannot be declared inadmissible as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

2. The Commission, after considering the remainder of the

applicant's submissions, finds that, even assuming compliance with

Article 26 (Art. 26), there is no appearance of a violation of his

rights under Articles 3 and 8 (Art. 3, 8) of the Convention, Article

1 of Protocol No. 1 and Articles 1 and 2 of Protocol No. 4

(P1-1, P4-1, P4-2). It follows that this part of the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE the applicant's complaint about his arrest

and his subsequent detention at the Cochem-Zell Police Station,

without prejudging the merits;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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H.F. K.-F. v. GERMANY

H.F. K.-F. v. GERMANY

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