FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28183/06 by Andreas HINDERBERGER against Germany

The European Court of Human Rights (Fifth Section), sitting on 30 March 2010 as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger , Karel Jungwiert , Rait Maruste , Mark Villiger , Isabelle Berro-Lefèvre , Zdravka Kalaydjieva , judges, and Claudia Westerdiek, Section Reg istrar ,

Having regard to the above application lodged on 11 July 2006,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Andreas Hinderberger , is a German national who was born in 1977 and lives in Berlin . He was represented before the Court by A. Feller, a lawyer practising in Hannover .

A. The circumstances of the case

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

The applicant was serving a prison sentence in Amberg Prison. On 3 July 2002 he was transferred to another prison in Bielefeld for the purpose of arranging a visit ( Besuchszusammenführung ). From 10 to 12 July 2002 he was detained as a transit detainee ( Durchgangsgefangener ) in Hannover Prison for a period of 23 hours. During this transit detention he shared a prison cell measuring 16 square metres with four other prisoners. The cell was equipped with five beds, five chairs, two tables and two wardrobes. An in-cell sink and toilet were screened from view but not otherwise separated. The prisoners were allowed to leave the cell for one hour per day for exercise ( Hofgang ). The cell was locked during the night.

At a request lodged by the applicant on 11 July 2002 the Hannover Regional Court ( Landgericht ) found in a decision of 16 September 2002 that the conditions of the applicant ’ s transit detention in Hannover Prison had been unlawful since five prisoners sharing a cell of 16 square metres that was locked at night and equipped with a toilet only visually separated was in breach of the requirement for the humane accommodation of prisoners.

The applicant subsequently instituted official liability proceedings against the Land of Lower Saxony ( Land Niedersachsen ) before the Hannover Regional Court and requested adequate financial compensation for non-pecuniary damage of at least 200 euros. By a judgment of 15 July 2003 the Hannover Regional Court confirmed that the applicant ’ s conditions of detention had been in breach of the requirement for the humane treatment of prisoners. It held that a prison cell designed for accommodating several prisoners had to be equipped with a separate plumbing unit with its own ventilation system, failing which prisoners had to have access to washing facilities or toilets outside the cell, day and night. Sanitary facilities in a prison cell that were only visually separated infringed the prisoners ’ right to humane treatment.

The Regional Court further found that in the instant case the relevant authorities were responsible for a breach of their official duties under Articles 839 and 847 of the Civil Code ( Bürgerliches Gesetzbuch ) , as well as Article 34 of the Basic Law in conjunction with the pertaining provisions of the Penal Code ( Strafvollzugsgesetz ). They should have recognised that the conditions of detention did not comply with the requirements for humane accommodation. While noting the difficulties the Land was facing at that time in respect of the large number of detainees and the limited space for their accommodation, the court found that these did not justify the restriction of the prisoners ’ rights as had previously been established by the case-law of the Federal Constitutional Court ( Bundesverfassungsgericht ). The Regional Court further held that the violation of the applicant ’ s right to human dignity in itself constituted a serious interference with his personal rights ( Persönlichkeitsrecht ) that could not be remedied other than by financial compensation for non-pecuniary damage and awarded the applicant the compensation he had requested.

Following an appeal lodged by the Land of Lower Saxony , the Celle Court of Appeal quashed, by a judgment of 2 December 2003, the judgment of the Hannover Regional Court and dismissed the applicant ’ s claim for financial compensation for non-pecuniary damage. The Court of Appeal confirmed that the applicant ’ s conditions of detention had contravened the requirement for the humane treatment of prisoners and that the relevant authorities had breached their official duties in this respect. However, it found that, in view of the particular circumstances of the case, financial compensation for non-pecuniary damage was not required for reasons of equity or for granting the applicant sufficient legal redress. In accordance with the domestic courts ’ case-law on Article 847 of the Civil Code in the version applicable at the time and which also applied to the case at hand, it stated that financial compensation for non-pecuniary damage could be refused in the event of minor bodily harm that was not significantly detrimental and did not cause permanent damage to the victim.

In view of the short duration of the applicant ’ s transit detention and the fact that there was nothing to establish that he had endured significant or long-term physical or mental suffering, the interference with the applicant ’ s rights had not reached a severity that required the award of financial compensation for the purpose of preventing similar violations or granting just satisfaction. Since the Regional Court had found a violation of the applicant ’ s right under Article 1 § 1 of the Basic Law, there was no danger of similar infringements of his rights occurring in the future.

Furthermore, it had to be taken into account that the prison ’ s transit detention division had been chronically overcrowded during the respective period and a short-term improvement of the situation had not been envisaged owing to financial restrictions. In order to respect the applicant ’ s rights under the specific circumstances, the prison authorities would have had to interfere with the rights of other prisoners or would have had to reject his transfer to another prison. This had been organised in his own interest, namely for the purpose of arranging a visit. While these considerations could not justify the breach of the applicant ’ s rights, they nevertheless indicated that the degree of the authorities ’ fault and the motives for their actions could not be considered to have been of a serious nature.

On 4 November 2004 the Federal Court of Justice dismissed the applicant ’ s appeal. It upheld the Court of Appeal ’ s finding that under the particular circumstances of the instant case, pecuniary compensation had not been necessary for granting the applicant adequate legal redress. It pointed out that there was no automatic link between the finding of a violation of Article 1 § 1 of the Basic Law and the granting of financial compensation. In accordance with the established case-law of the Federal Constitutional Court a prisoner had the right to have the lawfulness of his detention conditions reviewed by the courts irrespective of their duration. The finding of a violation by the domestic courts did not, however, require financial compensation in each case. Depending on the severity and scope of the violation of the right to human dignity in the individual case as well as on the motives and the degree of fault of the acting authorities, sufficient redress could be provided by other means than financial compensation for non-pecuniary damage.

Referring to the Court ’ s case-law, the Federal Court of Justice pointed out that within the scope of the Convention it was also recognised that for inhuman or degrading treatment to trigger a right to financial compensation under Articles 3 and 41 of the Convention, it had to reach a minimum level of severity. The assessment of this minimum level was dependent on the circumstances of the individual case such as the duration of the treatment, its physical or psychological effects or the sex, age or state of health of the victim. Furthermore, it had also been established in the Court ’ s case-law that a judgment finding a violation might in itself constitute sufficient just satisfaction for non-pecuniary damage suffered by a victim.

By written submissions dated 24 December 2004 the applicant lodged a constitutional complaint against the decisions of the Court of Appeal and the Federal Court of Justice arguing, in particular, that without appropriate financial compensation he was being deprived of sufficient redress and satisfaction for the violation of his rights guaranteed by Article 1 § 1 of the Basic Law and Articles 3 and 5 of the Convention. The protection of human dignity was absolute and could not be subject to a weighting of other interests or legal values. The mere finding of a violation did not have a deterrent effect on the Land and was not an incentive to change the detention conditions in its prisons or prevent a recurrence of similar violations. An infringement of the right to human dignity constituted a serious violation irrespective of the gravity of the interference and thus always required financial compensation.

By a decision of 27 December 2005 (file No. 1 BvR 1359/05) the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint and dismissed his request for legal aid. The Federal Constitutional Court found that even departing from the Court of Appeal ’ s finding that the conditions of the applicant ’ s detention had violated his right to human dignity, the Federal Court of Justice ’ s finding that there was no automatic link between the finding of a violation of Article 1 § 1 of the Basic Law and the granting of financial compensation under Article 839 of the Civil Code taken in conjunction with Article 34 of the Basic Law did not give rise to any concerns under constitutional law. Article 34 did not require the granting of a particular kind of compensation but only regulated the relevant authorities ’ liability for a breach of their official duties. Just satisfaction could be afforded by financial compensation, restitution in kind or other remedial action depending on the specific circumstances of the case. These considerations also applied in the event of a violation of Article 1 § 1 of the Basic Law by state authorities. The Court of Appeal ’ s conclusion – as upheld by the Federal Court of Justice – that the applicant had been granted sufficient redress by the Regional Court ’ s finding that the conditions of his detention had constituted a violation of Article 1 § 1 of the Basic Law did thus not raise any concern from a constitutional law perspective. While it was true that, under Article 1 § 1 of the Basic Law, a violation of human dignity could not be justified by weighing it against other constitutional concerns, this did not concern the possibility of taking into account the severity of the violation in the determination of the kind and amount of compensation to be awarded to the victim.

B. Relevant domestic law

Article 1 § 1 of the Basic Law stipulates that human dignity shall be inviolable and that to respect and protect it shall be the duty of all state authorities.

Under Article 34 of the Basic Law, taken in conjunction with Article 839 of the Civil Code , an individual has the right to be compensated by the State for any damage arising from a breach of official duty committed by a public servant. Under Section 847 § 1 of the Civil Code (in its version in force until 31 July 2002 and applicable to damage caused before that date) adequate financial compensation for non-pecuniary damage can only be claimed in the case of injury to the body or health, or in the case of deprivation of liberty.

COMPLAINTS

The applicant complained under Article 3 of the Convention that the conditions of his detention in Hannover Prison had been in breach of the prohibition of inhuman or degrading treatment.

He further alleged that, since it had been clear to the prison authorities from the outset that it was not possible to accommodate him in conditions that respected his human dignity, the detention itself had been unlawful and in breach of Article 5 of the Convention.

He also complained that the domestic courts ’ refusal to award him financial compensation in this respect perpetuated the violation of Articles 3 and 5 of the Convention and infringed his right to compensation and just satisfaction under Articles 5 § 5 and 41 of the Convention. Only financial compensation could provide sufficient redress for such a violation and have a sufficiently dissuasive effect on the domestic authorities so as to prevent similar violations occurring in the future.

The applicant lastly alleged that the dismissal of his request for legal aid by the Federal Constitutional Court for lack of prospects of success had been arbitrary and in breach of his right to access to a court provided by Article 6 § 1 of the Convention.

THE LAW

1. The complaints regarding a violation of Article 3 of the Convention

The applicant complained that the conditions of his transit detention in Hannover Prison amounted to inhuman and degrading treatment prohibited by Article 3 of the Convention. He referred in particular to the overcrowding and inadequate sanitary facilities in his cell.

He further alleged that the appellate courts ’ decisions refusing to award him financial compensation in this respect perpetuated the alleged violation of Article 3, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court notes that in the instant case the domestic courts found on the basis of the facts as established by the Hannover Regional Court that the conditions of the applicant ’ s accommodation during his 23-hour transit detention had infringed his right to human dignity under Article 1 § 1 of the Basic Law. In its judgment of 4 November 2004, the Federal Court of Justice indicated, however, that the violation of the applicant ’ s right to human dignity did not reach the threshold of inhuman or degrading treatment under Article 3 of the Convention.

In any event, the Court has to make its own assessment as to whether the treatment of the applicant during his transit detention can be said to have attained the minimum level of severity to bring it within the scope of Article 3. It recalls that the assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim ( see ValaÅ¡inas v. Lithuania , no. 44558/98, § 101, ECHR 2001 ‑ VIII ) . Furthermore, in considering whether a treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. Even the absence of such a purpose cannot conclusively rule out a finding of a violation of Article 3 (see Peers v. Greece , no. 28524/95, §§ 67-68, 74, ECHR 2001-III).

As regards persons held in detention, the Court has consistently held that under Article 3 of the Convention the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see KudÅ‚a v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI). It is incumbent on the State to organise its penitentiary system in such a way that ensures respect for the dignity of detainees, regardless of financial or logistical difficulties (see Mamedova v. Russia , no. 7064/05, § 63, 1 June 2006 ) . When assessing conditions of detention, account has to be taken of the cumulative effects of those conditions and the duration of the detention (see Dobrev v. Bulgaria , no. 55389/00, § 123; Dougoz v. Greece , no. 40907/98, § 46, ECHR 2001 ‑ II; and Kehayov v. Bulgaria , no. 41035/98, § 64 ).

Turning to the circumstances of the present case, the Court notes that there is nothing to establish that the applicant ’ s treatment during his transit detention was inte nded to degrade or humiliate him. The transit detention occurred within the scope of his transfer to another prison for the purpose of arranging a visit in the applicant ’ s interest. However, the Court considers that certain aspects of the conditions of his transit detention might nevertheless raise concerns under Article 3 of the Convention.

As had been established by the national courts, the applicant was detained in a cell measuring 16 square metres including sanitary facilities that was occupied by five detainees and locked during the night. The toilet and sink were screened from view but not fully separated from the rest of the cell.

The Court reiterates that in certain cases it has found that the lack of personal space afforded to detainees was so extreme as to justify, in its own right, a finding of a violation of Article 3 of the Convention. In those cases applicants usually had less than 3 square metres of personal space (see, for example, Kantyrev v. Russia , no. 37213/02, § § 50-51; Andrey Frolov v. Russia , no. 205/02, §§ 47-49 ; Kadiķis v. Latvia (no. 2) , no. 62393/00, § 52; and Melnik v. Ukraine , no. 72286/01, § 102).

I n cases where the overcrowding was not so severe as to raise in itself an issue under Article 3 of the Convention, the Court noted other aspects of physical conditions of detention as being relevant for its assessment of compliance with that provision. Such elements included, in particular, the possibility of using the toilet in private and compliance with basic sanitary requirements. Thus, even in cases where a larger prison cell was at issue – measuring around 3 or 4 square metres per inmate – the Court found a violation of Article 3 since the space factor was coupled with the established lack of ventilation and lighting (see, for example, Vlasov v. Russia , no. 78146/01, § 84; and Trepashkin v. Russia , no. 36898/03, § 94, 19 July 2007 ).

The Court notes that in the instant case the space available in the cell was around 3.2 square metres per inmate and that the cell was equipped with five beds, five chairs, two tables and two wardrobes. Referring to the above-cited case-law, it finds that the space afforded to the applicant was not so restricted as to justify in its own right a finding of a violation of Article 3 of the Convention . The Court would nevertheless point out in this context that the Committee of the Prevention of Torture of the Council of Europe has repeatedly recommended a minimum standard of 4 square metres of living space per prisoner (see, for instance, Visit Report Lithuania, CPT/Inf (2009) 22, § 35).

The Court further observes that the limited space available in the multi-occupancy cell may have been rendered more problematic by the fact that the in-cell toilet area was only screened from view and was not fully partitioned from the living area. The cell was locked during the night and it appears that – at least during this period – detainees could not use external sanitary facilities. However, noting that there is nothing to establish that the conditions of the applicant ’ s detention had a specific impact on his physical or mental health and, in particular, having regard to the relatively short duration of 23 hours of the applicant ’ s transit detention, the Court finds that the contested treatment did not attain the minimum level of severity to fall within the scope of Article 3 of the Convention (see, mutat i s mutandis , Valašinas cited above § 112 ) .

In view of this conclusion, the Court does not consider it necessary to determine whether the finding of a violation of Article 1 § 1 of the Basic Law by the domestic courts constituted in its own right sufficient just satisfaction for the applicant.

The Court therefore holds that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The remainder of the applicant ’ s complaints

Relying on Article 5 of the Convention the applicant further complained that since it had been clear to the prison authorities from the outset that the conditions of his detention would be in breach of his right to human dignity as provided for by Article 1 § 1 of the Basic Law, the detention itself had been unlawful in breach of Article 5 of the Convention. He invoked that the domestic courts ’ refusal to award him financial compensation infringed his right to compensation and just satisfaction under Articles 5 § 5 and 41 of the Convention.

The applicant lastly complained that the Federal Constitutional Court ’ s dismissal of his request for legal aid on the ground that his constitutional complaint lacked prospects of success had been arbitrary and infringed his right to access to a court under Article 6 § 1 of the Convention.

However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the applicant ’ s complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these re asons, the Court by a majority

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President