Lexploria

The European Commission of Human Rights sitting in private on

5 May 1986, the following members being present:

MM C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

M.A. TRIANTAFYLLIDES

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs G.H. THUNE

Sir Basil HALL

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 (Art. 25);

Having regard to the application introduced on 3 August 1984 by

T.C. against the Federal Republic of Germany and registered on

29 October 1984 under file No. 11215/84;

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 applicant is a German citizen born in 1959 and living in Fürth.

He is represented by Mr Küfner and others, lawyers practising in

Nuremberg.

It follows from the applicant's statements and the documents submitted

by him that on the evening of 5 March 1981 a demonstration of young

people took place in Nuremberg following a meeting in a so-called

communication centre. In the course of this demonstration cars and

other properties were damaged. The demonstrators later returned to

the communication centre which was then surrounded by the police. In

the morning of 6 March 1981 all persons present in the centre were

arrested. They were suspected of having participated in the violent

actions.

Among the persons arrested was the applicant who declared, when he was

interrogated by the police after his arrest, that he had followed the

demonstrators only in order to take some photos of the events. He had

been an observer and not a demonstrator.

In the evening of 6 March 1981 the applicant was brought before the

investigating judge M. The judge issued a warrant of arrest against

the applicant stating that there were sufficient reasons to suspect

the applicant of having participated in violent acts committed by a

crowd of people resulting in damage to property. He had participated

in a gathering of about two hundred people marching through the

streets and damaging cars and shop windows. The judge considered that

the applicant was likely to abscond in order to avoid punishment and

that there was danger of collusion as the applicant belonged to or

sympathised with squatters.

On 12 March 1981 the investigating judge examined the question of

whether or not detention on remand was justified and interrogated the

applicant (Haftprüfungsverfahren). Subsequent to this hearing he

ordered the applicant's release. The applicant was released on the

following day.

On 16 June 1981 the proceedings against the applicant were

discontinued for lack of sufficient evidence.

On 24 August 1981, at the applicant's request the Nuremberg District

Court (Amtsgericht) ordered that the applicant should be compensated

for his detention on remand.

On 19 February 1982 the Public Prosecution (General- staatsanwalt)

awarded compensation in the amount of DM 722.65 and refused to

acknowledge the applicant's claims in excess of this sum.

The applicant therefore brought an action for damages with the

Nuremberg Regional Court (Landgericht) claiming an additional sum of

DM 1,155.74. He alleged that he was wrongly detained on remand; that

on his arrest he was not given the possibility to contact a lawyer and

to make statements in regard to the charges levelled against him.

Further he argued that judge M who issued the warrant of arrest

against him, had under the internal court rules concerning the

distribution of cases (Geschäftsverteilungsplan) not been competent to

act as investigating judge. The applicant informed the Regional Court

that he also raised these complaints before the Bavarian

Constitutional Court. He argued that his claims were well-founded

both under Section 7 (1) of the Act on Compensation for Prosecution

Measures (StrEG) and under Art 34 of the Basic Law (GG) in connection

with Section 839 of the Civil Code (BGB) for misconduct in office.

On 12 August 1982 the Regional Court ordered the defendant State

Bavaria to pay further compensation in the amount of DM 100.

Both parties lodged an appeal (Berufung).

On 9 March 1984 the Bavarian Constitutional Court (Verfassungs-

gerichtshof) rejected the applicant's constitutional complaint stating

inter alia that there was nothing to show that judge M had arbitrarily

assumed his competence to issue a warrant of arrest in the applicant's

case. Nor was it arbitrary that the judge used standardised forms in

some 140 cases to justify the warrants of arrest without dealing with

the declarations made by the applicant at his interrogation by the

police.

On 28 May 1984 a group of three judges of the Federal Constitutional

Court (Bundesverfassungsgericht) rejected a constitutional complaint

against the warrant of arrest and the Bavarian Constitutional Court's

decision. The decision states that the applicant's complaints under

Articles 2 (2), 103 (1) and 104 (1) and (3), first sentence, of the

Basic Law (GG) are unsubstantiated and therefore inadmissible.

On 30 May 1984 the applicant accepted a friendly settlement in the

civil proceedings pending before the Nuremberg Court of Appeal

(Oberlandesgericht) concerning his claim for damages. According to

this settlement the defendant State Bavaria accepted to pay

DM 1,055.74 and all costs of the proceedings. The applicant submits

that the finding and reasons contained in the Bavarian Constitutional

Court's decision caused the State of Bavaria to accept a friendly

settlement.

COMPLAINTS

The applicant maintains his complaints raised before the German

constitutional courts, namely that he was arbitrarily arrested and

detained on remand, and that he was not given adequate opportunity to

defend himself after his arrest. In view of the Commission's decision

rejecting Application No. 9997/82 he does not maintain the complaint

that judge M was not competent to act as investigating judge.

He invokes Articles 5 and 6 of the Convention (Art. 5, art. 6).

THE LAW

1. The applicant alleges that his rights under Articles 5 and 6

of the Convention (Art. 5, art. 6) were violated by his arrest and

detention on remand from 6 to 13 March 1981.

One of the conditions for the admissibility of an application under

Article 25 of the Convention (Art. 25) is that the applicant may claim

to be a victim of an action or omission, by a High Contracting Party,

which in his view violates his rights under the Convention. In the

present case the applicant complained of his arrest and detention both

to the Bavarian Constitutional Court and subsequently to the Federal

Constitutional Court as well as to the civil courts dealing with his

claim for compensation. In the civil proceedings the applicant

expressly relied on the argument that his arrest and subsequent

detention were the result of a misconduct in office

(Amtspflichtverletzung). However, in the civil proceedings the

applicant accepted, subsequent to the decisions rejecting his

constitutional complaints, a friendly settlement. This contractual

arrangement settled his claims for compensation with regard to the

alleged arbitrary arrest and detention. The defendant State not only

accepted to pay the full amount of compensation claimed by the

applicant but also the entire costs of the civil proceedings. The

applicant has himself pointed out that this settlement had been

influenced by the findings and reasons stated in the decision of the

Bavarian Constitutional Court.

The applicant has thus, by using domestic remedies available to him,

namely an action for damages before the civil courts, received and

accepted compensation for the alleged violation and has therefore

renounced to the further use of local remedies, ie to have his appeal

in the civil proceedings decided by the competent court. This appeal

was, inter alia, based on alleged misconduct in office and thus in

substance raised the same issues as the applicant's constitutional

complaints.

In these circumstances the Commission concludes that the applicant can

no longer claim to be a victim of the alleged violations and his

application is therefore manifestly ill-founded within the meaning of

Article 27 para. 2 of the Convention (Art. 27-2) (see Decs.

Nos. 5577-5583/72, 15.12.75, D.R. 4, 4 <87>; No. 8865/80, 10.7.81,

D.R. 25, 252).

2. Even assuming that the friendly settlement reached before the

Court of Appeal did not cover the applicant's complaint under

Article 5 para. 1 of the Convention (Art. 5-1), 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 of the Convention (Art. 26), 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 substantiate his

complaints concerning alleged violations of Articles 2 (2) and 104 GG

(protecting the liberty of the person) in his constitutional appeal to

the Federal Constitutional Court which consequently rejected the

appeal as being to this extent inadmissible. In these circumstances

he cannot 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 his

application would in this respect have to be rejected under

Article 27 para. 3 of the Convention (Art. 27-3).

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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