Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16117/90

by N.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 2 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission,

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 December 1989

by N. against the Federal Republic of Germany and registered

on 1 February 1990 under file No. 16117/90;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

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 1920, is a German national. When

lodging his application he was detained at S. Prison. Before

the Commission he is represented by Ms. M. Kunisch, a lawyer

practising in Munich.

On 28 February 1967 the Munich I Regional Court (Landgericht)

convicted the applicant of murder and sentenced him to life

imprisonment.

On 6 April 1983 the Regensburg Regional Court suspended the

remainder of the applicant's sentence on probation. The period of

probation amounted to five years. For this period the applicant was

given a probation officer (Bewährungshelfer). Furthermore, he was

ordered to take residence in a particular residential home, not to

leave his place of residence without prior consent of his probation

officer, and to comply with the regulations of the above residential

home.

On 7 March 1984 the Regensburg Regional Court revoked the

suspension of the applicant's sentence to life imprisonment. The

Regional Court found in particular that since the end of May 1983 the

applicant had been drinking alcohol, and had stayed in summer 1983 and

in winter 1984 in a hospital for treatment of his alcohol addiction.

He then refused any further therapy. The management of the

residential home refused to keep him on the ground that he had

threatened to run amuck. He also threatened and molested other

persons, when he was drunk. The Regional Court assumed that the

positive prognosis for the applicant's future behaviour outside prison

at the time of the decision to suspend the remainder of his sentence

had been proven to be wrong. The Regional Court referred to the

applicant's alcohol addiction and the serious and continuous

violations of the home regulations. It noted that the applicant could

not live on his own. Having regard to his conduct after release, no

other residential home would be prepared to accommodate him. In these

proceedings the applicant was represented by counsel.

Subsequently the applicant repeatedly requested that his

sentence be again suspended on probation, but to no avail.

On 26 April 1989 the Regensburg Regional Court dismissed the

applicant's request of January 1989 that his sentence be suspended.

The Regional Court, referring in particular to a report of the prison,

noted that the applicant had no social ties outside prison, and that

his alcohol problems had not been solved, as no place for an alcohol

therapy could be found. The attempts of the applicant's counsel to

find such a place had also failed. Still in June 1988 an institution

for such therapy, which the applicant had consulted on the initiative

of his counsel, had refused him on the ground that he had no reasonable

view of his illness. For these reasons, the Regional Court, referring

to S. 57a para. 1 of the Penal Code (Strafgesetzbuch), considered

that for the time being it could not be put to a test whether the

applicant committed further criminal offences outside prison. In

these and the following proceedings the applicant was represented by

counsel.

On 31 May 1989 the Nuremberg Court of Appeal (Oberlandes-

gericht) dismissed the applicant's appeal (Beschwerde). The Court of

Appeal considered in particular that if there were, as in the present

case, the slightest risk that the sentenced person committed a further

serious crime in connection with his alcohol addiction, his sentence

could not be suspended. As regards the applicant the existence of

such a risk had to be assumed all the more so, as in the course of the

previous suspension of his sentence he had again drunk alcohol.

On 27 November 1989 the Federal Constitutional Court (Bundes-

verfassungsgericht) refused to admit the applicant's constitutional

complaint (Verfassungsbeschwerde) on the ground that it offered no

prospect of success. The Constitutional Court found that the inferior

court had shown in detail that the applicant continued to be dangerous

due to his alcohol addiction. However, in future the competent courts

would have to consider the applicant's right to resocialisation, i.e.

his right to have at least a chance to be at liberty again. Having

regard to the applicant's age and the increasing weight to be given to

his right to liberty, the courts would have to apply stricter

standards as to the establishment of the relevant facts, in particular

in respect of the applicant's alcoholism. The appointment of an

experienced expert or a therapy in hospital, as proposed by the

applicant's counsel, might then suggest themselves.

COMPLAINTS

1. The applicant complains under Article 5 para. 1 of the

Convention about the Regensburg Regional Court's decision of 7 March

1984 revoking the suspension of his sentence to life imprisonment, and

also of the proceedings concerned. He considers that since that date

he has been unlawfully detained.

2. The applicant also complains under Article 5 para. 1 of the

Convention of the Regensburg Regional Court's decision of 26 April

1989 not to suspend the remainder of his sentence to life imprisonment

under S. 57a of the Penal Code.

THE LAW

1. The applicant complains under Article 5 para. 1 (Art. 5-1) of

the Convention about the Regensburg Regional Court's decision of 7

March 1984 by which the suspension of his sentence to life

imprisonment was revoked.

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

In the present case the applicant failed to show that he

lodged an appeal with the Court of Appeal under the relevant provision

of the German Code of Criminal Procedure, or that he filed a

constitutional complaint with the Federal Constitutional Court in this

respect. He cannot, therefore, be considered to have exhausted the

remedies available to him under German law. Moreover, an examination

of the case does not disclose the existence of any special

circumstances which might have absolved the applicant, according to

the generally recognised rules of international law, from exhausting

the domestic remedies at his disposal.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and this part of

his application must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

2. The applicant also complains under Article 5 para. 1 (a)

(Art. 5-1-a) of the Convention that the Regensburg Regional Court and

the Nuremberg Court of Appeal incorrectly examined his request under

S. 57a of the Penal Code to have his life sentence suspended on

probation.

Article 5 para. 1 (Art. 5-1) of the Convention, in so far as

relevant, reads:

"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 Commission observes that the applicant was convicted of

murder by the Munich I Regional Court on 28 February 1967 and

sentenced to life imprisonment, and has, therefore, been lawfully

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

the Convention.

The Commission recalls that the rights and freedoms

safeguarded by the Convention do not include a right to have a penalty

imposed by a court in criminal proceedings suspended on probation (cf.

No. 7648/76, Dec. 6.12.77, D.R. 11 p. 175). However, the Convention

organs have examined subsequent decisions relating to detention, in

particular decisions to revoke a conditional suspension of a sentence

of life imprisonment under Article 5 para. 1 (a) (Art. 5-1-a) of the Convention

(cf. Eur. Court H.R., Weeks judgment of 2 March 1987, Series A

No. 114, p. 21 et seq., paras. 38-53; No. 14289/88, Dec. 14.3.89).

In the present case, the Commission notes that the German

courts, in detailed decisions, refused the applicant's conditional

release under S. 57a in connection with S. 57 para. 1 of the Penal

Code, on the ground that there was still a risk that he would commit

criminal offences outside prison, in particular due to his alcoholism.

The Commission finds that these decisions were taken in

accordance with the procedure prescribed by German law. The applicant,

who mainly challenges the decision of 7 March 1984, does not give any

indication that the decisions of 1989 were arbitrary. In particular

he does not deny the facts underlying these decisions.

The Commission concludes that, in the circumstances of the

present case, there is no appearance of a violation of Article 5 para. 1

(Art. 5-1) of the Convention.

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 unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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N. v. GERMANY

N. v. GERMANY

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