FIFTH SECTION

DECISION

Application no. 51742/15 Bojan POPLAZ against Germany

The European Court of Human Rights (Fifth Section), sitting on 20 March 2018 as a Committee composed of:

Erik Møse , President, Síofra O ’ Leary, Carlo Ranzoni , judges , and Milan Blaško , Deputy Section Registrar ,

Having regard to the above application lodged on 12 October 2015,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Bojan Poplaz , is a national of Germany and Slovenia, who was born in 1960 and is detained in the Aachen penal institution. He was represented before the Court by Mr Budde , a lawyer practising in Dortmund. The German Government (“the Government”) were represented by one of their Agents, Mr H.-J. Behrens, of the Federal Ministry of Justice and Consumer Protection.

2. The application concerns the applicant ’ s right to respect for his correspondence during his detention in the Hagen penal institution following his criminal conviction.

3. On 9 March 2016 the application was communicated to the Government.

4. The Slovenian Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), did not indicate that they wished to exercise that right.

A. The circumstances of the case

5. On an unspecified date, the applicant was convicted of blackmail and use of force or threats against life or limb and sentenced to eight years and six months ’ imprisonment. Starting from 8 April 2014 he was detained in the Hagen penal institution, North-Rhine Westphalia ’ s central admission institution where persons convicted of criminal offences are placed temporarily before being transferred to other penal institutions for the purpose of serving their sentence.

6. During his detention in the Hagen penal institution, the applicant wrote letters in Slovenian to his relatives living in Slovenia. The management of the penal institution stopped these letters and returned them to the applicant, also handing him a copy of the management ’ s order that prisoners of German nationality were required to write their outgoing correspondence in German and that any outgoing correspondence written in another language would be stopped and returned to them.

7. By a letter received by the Hagen Regional Court on 6 May 2014 the applicant requested that court to rule on the matter and to allow him to write in Slovenian to his relatives in Slovenia as well as to his lawyer and the court seized with the proceedings for the forced public auction of his property there.

8. On 3 July 2014 the Hagen Regional Court rejected the applicant ’ s request, finding that it was inadmissible in so far as it related to letters to his lawyer in Slovenia and the court in Slovenia concerning proceedings for the forced public auction of his property there, as the applicant had not substantiated that the Hagen prison authorities had stopped any letter written by the applicant in Slovenian to these recipients. The Regional Court considered the applicant ’ s request ill-founded in so far as it concerned letters to his relatives. The monitoring of his written correspondence had been in accordance with Section 29 § 3 of the Execution of Sentences Act and the interception of his letters to his relat ives in accordance with Section 31 § 1 no. 6 of the same Act. Both measures had been proportionate given the circumstances of the case, notably the specific nature of the Hagen penal institution as the central admission institution with a high fluctuation in prisoners, the applicant ’ s conduct and the fact that he was fluent in German.

9. On the day of the Regional Court ’ s decision, the applicant was transferred to the Aachen penal institution, where he continues to be detained. In that institution, he is allowed to write his outgoing correspondence in Slovenian.

10. On 5 August 2014 the applicant lodged an appeal against the Regional Court ’ s decision. On 18 September 2014 the Hamm Court of Appeal dismissed that appeal as inadmissible. It considered that the applicant had, in the meantime, been transferred to another prison and was thus no longer affected by the measure of the Hagen penal institution concerning the interception of his letters. The matter had been resolved prior to the lodging of the appeal.

11. On 16 October 2014 the applicant submitted a written statement to the Court of Appeal, alleging several errors in the decision of 18 September 2014. The Court of Appeal qualified that statement as an objection ( Gegenvorstellung ) and rejected it on 21 October 2014, the written decision being delivered on 28 October 2014.

12. On 27 November 2014 the applicant lodged a constitutional complaint with the Federal Constitutional Court. On 4 May 2015 the Federal Constitutional Court declined to accept the constitutional complaint for adjudication, without providing reasons (no. 2 BvR 3021/14).

B. Relevant domestic law and practice

13. Section 93 § 1 of the Federal Constitutional Court Act provides that a constitutional complaint has to be lodged within one month starting from the service or informal notification of the complete decision which is alleged to have violated fundamental rights . As a rule, all available remedies must have been exhausted before a constitutional complaint is lodged (Section 90 § 2, first sentence, of the Act). An objection ( Gegenvorstellung ) is not a remedy that has to be exhausted prior to the lodging of a constitutional complaint, hence the one-month time-limit will not start running again with the lodging of, or decision on, the objection (Federal Constitutional Court, no. 1 BvR 848/07, decision of 25 November 2008). Under Section 93d § 1 of the Act, the Federal Constitutional Court is not required to give reasons for its decision not to accept a constitutional complaint for adjudication.

COMPLAINTS

14. The applicant complained under Article 8 of the Convention that the interception of his letters written in Slovenian to his relatives, his lawyer and a court in Slovenia, while he was detained in the Hagen penal institution, breached his right to respect for his correspondence. Relying on Article 14 taken in conjunction with Article 8 of the Convention, he alleged that he was discriminated against in comparison to prisoners who did not have German nationality and who were allowed to write their outgoing correspondence in languages other than German. Finally, he complained that he did not have an effective domestic remedy, as required by Article 13 of the Convention, for these complaints as the Hamm Court of Appeal had dismissed his appeal as inadmissible.

THE LAW

15. The Government contested the admissibility of the application on the ground that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. They emphasised that Article 35 § 1 of the Convention required that complaints be made to the competent domestic courts in compliance with the formal requirements and time-limits laid down in domestic law. That requirement was not fulfilled in the case of an inadmissible constitutional complaint. It was evident that the applicant ’ s constitutional complaint was inadmissible because he had not complied with the one-month time-limit for lodging a constitutional complaint, starting from the service or notification of the decision.

16. They acknowledged that it had not been established when exactly the Court of Appeal ’ s decision of 18 September 2014, against which the constitutional complaint was directed, had been served on the applicant. However, the applicant made reference to that decision in his objection received by the Court of Appeal on 16 October 2014 and must thus have received the earlier decision at the latest on that day. Consequently, the one ‑ month time-limit for lodging a constitutional complaint expired, according to the provisions of domestic law, at the latest on 17 November 2014. The applicant ’ s constitutional complaint of 27 November 2014 was therefore not lodged within that time-limit.

17. The applicant did not contest the Government ’ s submission in substance, but pointed out that the Court of Appeal ’ s decision on his objection had been delivered on 28 October 2014. He had, thus, lodged his constitutional complaint within the one-month time-limit foreseen by domestic law.

18. The Court reiterates that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. While Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it does not merely require that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally also requires that the complaints intended to be brought subsequently before the Court should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law ( Gäfgen v. Germany [GC], no. 22978/05, § 142, ECHR 2010).

19. The applicant lodged a constitutional complaint with the Federal Constitutional Court on 27 November 2014. That court decided not to accept the complaint for adjudication, without providing reasons (see paragraph 12 above). The situation thus differs from that in the case of Haase v. Germany (no. 11057/02, § 63, ECHR 2004 III (extracts)), where the Federal Constitutional Court had explicitly stated that the constitutional complaint had been inadmissible. However, the Court notes that under domestic law the Federal Constitutional Court was not required to provide reasons for its decision not to accept a constitutional complaint for adjudication (see paragraph 13 above).

20. Where the Federal Constitutional Court does not provide reasons for its refusal to accept a constitutional complaint for adjudication, the Court cannot speculate about the reason for such decision. Nonetheless, where the inadmissibility of the constitutional complaint was evident from the case ‑ file, the Court has concluded that the applicant had failed to exhaust domestic remedies (see Colak and Others v. Germany ( dec. ), nos. 77144/01 and 35493/05, 11 December 2007; Karabulut v. Germany ( dec. ), no. 59546/12, § 40, 21 November 2017).

21. The Court observes, first, that the applicant must have received the Court of Appeal ’ s decision of 18 September 2014 on his appeal at the very latest on 16 October 2014, as he referred to the decision in his submission to the Court of Appeal of that day (see paragraph 11 above). The applicant did not contest this. The one-month time-limit foreseen in domestic law to lodge a constitutional complaint against this decision (see paragraph 13 above) had thus expired, according to the provisions of domestic law, at the latest on 17 November 2014.

22. The Court observes, second, that the applicant, instead, submitted that the Court of Appeal ’ s decision on his objection had been delivered on 28 October 2014 and that he had, thus, lodged his constitutional complaint within the one-month time-limit foreseen in domestic law. However, domestic law provides that an objection is not a remedy that has to be exhausted prior to the lodging of a constitutional complaint and that, hence, the one-month time-limit will not start running again with the lodging of, or decision on, the objection (see paragraph 13 above).

23. In the light of the foregoing, the Court considers that the inadmissibility of the applicant ’ s constitutional complaint due to a failure to comply with the time-limit laid down in domestic law is evident and that, consequently, the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

24. The application must therefore be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 April 2018 .

Milan BlaÅ¡ko Erik Møse              Deputy Registrar President