FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 20579/04 by Wolfgang BEIER against Germany

The European Court of Human Rights (Fifth Section), sitting on 22 January 2008 as a Chamber composed of:

Peer Lorenzen , President, Snejana Botoucharova , Karel Jungwiert , Rait Maruste , Javier Borrego Borrego , Renate Jaeger , Mark Villiger , judges, and Claudia W esterdiek , Section Registrar ,

Having regard to the above application lodged on 26 May 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Wolfgang Beier , is a German national who was born in 1956 and lives in Straubing .

A. The circumstances of the case

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

1. Background to the case

The applicant was convicted of murder and has been serving a life sentence in Straubing Maximum Security Prison since 8 February 2002. The highest level of security applies at the prison, as it houses solely inmates serving long-term or life-imprisonment sentences or those in subsequent preventive detention. Radios are permitted in the prison facility in question.

2. The proceedings

On 27 October 2003 the applicant applied for permission to have a CD player and audio CDs and a play station and its necessary accessories.

On 3 November 2003 the Straubing Prison Authority rejected his application in accordance with section 70 § 2 of the Prison Act, arguing that granting it would have jeopardised security and order in the prison.

The applicant applied for judicial review.

The Prison Authority submitted to the court that, given the maximum-security regime of the prison and the significant number of inmates who had been involved with drugs, every object that was handed over to an inmate had to be thoroughly checked for hidden drugs or facilities that could enable a breakout. The electronic facilities which the applicant applied for had multiple cavities and owing to their high complexity could have been modified to carry illegal or impermissible information. Moreover, every audio CD would have had to be checked for possible hidden electronic data. Therefore, maintaining security and order in the prison would have necessitated time-consuming checks by specially qualified prison staff. Having regard to the possibility of multiple similar requests, allowing prisoners to have the devices in question would have necessitated substantial additional work and would possibly have required a raise in the number of staff. Therefore, the necessary security measures to be taken would have been disproportionate to the applicant ’ s interests at stake.

The applicant submitted that the possession of a CD player and a play station would not have posed a real threat to security. To this end he referred at large to the decisions of the Celle Court of Appeal of 25 January 1994 and the Dresden Court of Appeal of 16 September 1999, which found that a play station did not pose a relevant threat to prison order. The applicant also referred to the Federal Constitutional Court ’ s decision of 9 November 2001. He relied, in particular, on the principle of equality. None of these decisions directly concerned the applicant (see relevant domestic law and practice below).

On 8 January 2003 the Regensburg Regional Court upheld the Prison Authority ’ s decision, endorsing the arguments given by it and noting that the case-law cited by the applicant did not provide for a decision in his favour.

On 11 February 2004 the Nuremberg Court of Appeal rejected the applicant ’ s appeal on points of law ( Rechtsbeschwerde ) as inadmissible. It found that neither the development of law nor the necessity of uniform case-law demanded the examination of its merits. The decisions of the Straubing Prison Authority and the Regensburg Regional Court were based on sufficient grounds, namely, the special circumstances of the prison concerned, and thereby complied with the law.

On 29 April 2004 the Federal Constitutional Court (2 BvR 505/04) refused to examine his constitutional complaint without further reasons.

B. Relevant domestic law and practice

1. The Prison Act

Section 70 §§ 1 and 2 of the law on the execution of prison sentences and measures of rehabilitation and prevention involving deprivation of liberty – the Prison Act – provides:

“(1) Every inmate is allowed to possess books or other objects to a reasonable extent for educational or leisure purposes.

(2) This does not apply if the possession, the surrender or the use of the object would [...]

2. jeopardise [...] the security or order of the prison facility.”

2. Case-law of domestic courts

The Celle Court of Appeal in its decision of 25 January 1994 (1 Ws 324/93) and the Dresden Court of Appeal in its decision of 16 September 1999 (2 Ws 637/98) found that a play station did not pose a relevant threat to security and order of the prison and was therefore permitted according to section 70 § 1 of the Prison Act. These decisions did not deal with the security level of the prison facilities in question.

The Federal Constitutional Court decided on 9 November 2001 (2 BvR 609/01) that the refusal to allow a prison inmate to have a play station did not infringe any of that person ’ s constitutional rights. The Prison Authority ’ s decision was, in particular, not contrary to the principle of equality. Referring to the above decisions of the Celle and Dresden Courts of Appeal it found that every request concerning electronic devices in prison had to be decided on its own merits according to the circumstances of the particular case and the conditions of the prison facility concerned.

COMPLAINTS

The applicant complained under Article 8 of the Convention that the impugned decisions violated his right to respect for his private life. He submitted that the assessment of the security risks inherent in the concerned electronic devices had been erroneous and had not necessitated security controls of a sufficiently high level to warrant the restrictions on his rights.

Relying on Article 14 in conjunction with Article 8, the applicant referred to the divergent case-law of other courts of appeal and submitted that the principle of equality had been violated.

The applicant complained under Article 6 of the Convention that the Court of Appeal ’ s decision had been arbitrary .

THE LAW

1. The applicant complained about the prohibition on possessing a CD player and a play station in a maximum-security prison. He relied on Article 8 of the Convention, the relevant part of which provides:

“1. Everyone has the right to respect for his private [...] li fe [...].

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society [...] for the prevention of disorder or crime [...].”

The Court recalls that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. Any restrictions on these other rights require to be justified, although such justification may well be found in the considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment (see, mutatis mutandis, Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 69 , ECHR 2005 ‑ ...)

Article 8 may be regarded as affording protection in respect of detention conditions. However, normal restrictions and limitations consequent on prison life and discipline during lawful detention are not matters which would constitute a violation of Article 8 either because they are considered not to constitute an interference with the detainee ’ s private and family life or because any such interference would be justified (see D.G. v. Ireland , no. 39474/98, § 105 , ECHR 2002 ‑ III ).

Even assuming that in the present case the prohibition of possessing the electronic devices concerned interfered with the applicant ’ s right to respect for his private life, the Court finds that it was justified under Article 8 § 2 of the Convention. The impugned decisions had a legal basis in section 70 § 2 no. 2 of the Prison Act, the application of which was clearly foreseeable. The mere fact that similar cases had been decided differently owing to the particular circumstances of other individual cases did not render the instant application of the law unforeseeable or erroneous. The impugned decisions pursued the legitimate aim of preventing disorder or crime. The domestic authorities ’ assessment that a CD player and a play station posed a general threat to the security and order of the maximum-security prison, as these devices could be modified to carry hidden electronic data or substances such as drugs or materials to facilitate a breakout is convincing.

The Court recognises that the applicant, a long-term prisoner, had a certain interest in possessing the recreational facilities he applied for. In this connection it should be recalled that detention subsequent to criminal conviction is aimed at, inter alia , the social rehabilitation of the detainee.

However, having regard to the maximum-security regime of the prison, the nature of the offences which the inmates had committed and the long-term nature of their imprisonment, the Court finds that the prison authorities, as confirmed by the domestic courts, advanced pertinent reasons when referring to the necessity of thorough checks with regard to every object which could have posed a threat to security and order or increase the risk of drug smuggling. With respect to the highly complex nature of such devices every check would be time-consuming and would necessitate technical expertise that members of prison staff do not normally possess. Moreover, the data contained in each music CD and game software package would have to be searched for impermissible information, be it material inciting to violence, pornographic game content or prohibited communication with persons outside the prison concerning criminal activities. The Court considers that these reasons in respect of the maximum-security prison in question outweighed the applicant ’ s interest in additional recreational activities. Accordingly, there is no appearance of a breach of Article 8.

Having regard to the above considerations, the Court does not find it necessary to carry out a separate examination in relation to Article 14 in conjunction with Article 8.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 § 3 and 4 of the Convention.

2. The Court recalls that Article 6 § 1 of the Convention does not apply to proceedings relating to the execution of a criminal sentence, as criminal charges are not determined in such proceedings. The applicant ’ s complaints about the proceedings before the Court of Appeal which concerned the permissibility of certain electronic devices in prison are thus incompatible ratione materiae and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Cou rt unanimously

Declares the application inadmissible.

Claudia W esterdiek P eer L orenzen Registrar

President