Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14289/88

by E.E.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 14 March 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 28 July 1988

by E.E. against the Federal Republic of Germany and registered

on 20 October 1988 under file No. 14289/88;

Having regard to the report provided for in Rule 40 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 1925, is a German national. When

lodging his application he was detained at Straubing Prison. Before

the Commission the applicant is represented by Mr. C. Rückel, a lawyer

practising in Munich.

The applicant's previous application No. 3606/68 concerning

his conviction for murder and sentence to life imprisonment by the

Nuremberg Regional Court (Landgericht) on 24 October 1966 was declared

inadmissible on 16 May 1969.

On 6 June 1984 the Regensburg Regional Court dismissed the

applicant's request for suspension of the remainder of his sentence of

life imprisonment. The Court found that the execution of his sentence

could not be suspended on probation under S. 57 (a) of the Penal Code

(Strafgesetzbuch).

S. 57 (a) of the Penal Code, which refers partly to S. 57

para. 1 of the Penal Code, provides that the competent court suspends

a sentence of life imprisonment after 15 years have been served if the

heinous nature of the crime (besondere Schwere der Schuld) does not

require further execution of the sentence, if it can reasonably be put

to a test whether the applicant will not commit any offences outside

prison, and if he agrees.

The Regional Court found that, although the applicant had

committed a particularly heinous crime, further execution of his

sentence would, in principle, no longer be necessary. However, having

regard to a psychiatric expert opinion of January 1983, the Court

considered that the applicant had no sense of reality and could not

yet live without control outside prison.

On 13 January 1988 the Regensburg Regional Court dismissed the

applicant's second request that his sentence of life imprisonment be

suspended on probation.

In its very detailed decision, the Court, having heard

the applicant and having had regard to reports of the Straubing Prison

dated December 1981, June 1982, July 1986 and December 1987, and to

two medical expert opinions of January 1983 and October 1986, found

that he could not be released on probation. The composition of the

chamber having changed, the Court considered in particular that the

murder which the applicant had committed was particularly heinous and

demanded the execution of his sentence of life imprisonment. Further,

the Court found that there was still a risk that the applicant would

commit further serious crimes or even murder if at liberty. He was

still showing serious deficiencies in his social behaviour which

outweighed the positive circumstances, in particular the relationship

with his fiancée who would be prepared to take care of him.

In these and the following proceedings the applicant was

represented by counsel.

On 9 March 1988 the Nuremberg Court of Appeal (Oberlandes-

gericht) dismissed the applicant's appeal (Beschwerde).

On 25 May 1988 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 in particular

that the decision of the Regional Court and of the Court of Appeal

were based on detailed reasoning and did not appear arbitrary.

COMPLAINTS

1. The applicant complains that the decisions of the Regensburg

Regional Court of 13 January 1988 and the Nuremberg Court of Appeal of

9 March 1988 refusing his release from prison are arbitrary and amount

to inhuman and degrading treatment within the meaning of Article 3 of

the Convention. He submits in particular that these court decisions

contradict in their reasoning the earlier decision of the Regional

Court of 1984 as to the particularly heinous nature of the crime.

Furthermore, the Courts incorrectly assessed the evidence as to the

question of his probable conduct outside prison.

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

Convention that the Regensburg Regional Court and the Nuremberg Court

of Appeal, in their decisions of January and March 1988, did not

correctly consider the issue of his release on probation under S. 57

(a) of the Penal Code; and that thus his detention after conviction is

no longer lawful.

THE LAW

1. The applicant complains that the decisions of the Regensburg

Regional Court and the Nuremberg Court of Appeal of 1988 refusing the

suspension of his sentence of life imprisonment constituted a

violation of Article 3 (Art. 3) of the Convention, which reads:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

The Commission recalls that a sentence to life imprisonment

does not as such constitute a breach of Article 3 (Art. 3) of the Convention

(cf. No. 7994/77, Dec. 6.5.78, D.R. 14 p. 238).

In the present case, the Commission observes that, following a

judgment of the Federal Constitutional Court of 21 June 1977 (cf.

EuGRZ 1977 p. 267), the German Penal Code has been amended and now

provides the prisoner with a legal possibility of obtaining

conditional release in court proceedings after having served at least

15 years of his sentence of life imprisonment. This legal provision

also applied to the applicant.

As regards the contested decisions of the Regensburg Regional

Court and the Nuremberg Court of Appeal dismissing the applicant's

requests for release, the Commission recalls that treatment will be

considered inhuman only if this treatment reaches a certain stage of

gravity, causing considerable mental or physical suffering (Eur. Court

H.R., judgment in the case of Ireland v. the United Kingdom of 18

January 1978, Series A no. 25, p. 65, para. 162).

Furthermore, as regards the criteria concerning the notion of

"degrading treatmant", the treatment itself will not be degrading

unless the person concerned has undergone humiliation or debasement

attaining a minimum level of severity. That level has to be assessed

with regard to the circumstances of the case (see the above-mentioned

judgment, pp. 65 et seq., paras. 162, 167 and 179-81).

In the present case, the Commission, having examined in the

light of the above case-law the applicant's complaint that the

refusal of his release was arbitrary, finds that in the circumstances

of this case, the detailed reasons given by the German courts do not

disclose any appearance of a violation of Article 3 (Art. 3) of the Convention.

It follows that this aspect of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) 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. 57 (a) of the Penal Code to

have his sentence of life imprisonment 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 Nuremberg Regional Court on 24 October 1966 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. This the applicant does not deny.

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, pp. 21 et

seq., paras. 38 - 53).

In the present case, the Commission notes that the German courts, in

detailed decisions, refused the applicant's release under S.57 (a) in

connection with S. 57 para. 1 of the Penal Code, on the two grounds that first

the heinous nature of the murder which he had committed required the further

execution of his sentence, and second that there was a risk that he would

commit criminal offences outside prison. The Commission finds that

these court decisions were taken in accordance with the procedure prescribed by

German law. The refusal of the applicant's release on probation was based on

grounds which refer to and depend upon his conviction in 1966, especially as

regards the heinous nature of the murder committed by him. The Commission does

not find it arbitrary that the Regensburg Regional Court, in its second

decision of 13 January 1988, the composition of the chamber having changed,

deviated from its first decision of 1984 as to the question whether or not the

heinous nature of the crime required further execution of the applicant's

sentence of life imprisonment.

Consequently, 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

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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E.E. v. THE FEDERAL REPUBLIC OF GERMANY

E.E. v. THE FEDERAL REPUBLIC OF GERMANY

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