FIFTH SECTION

DECISION

Application no. 59546/12 Ismet KARABULUT against Germany

The European Court of Human Rights (Fifth Section), sitting on 21 November 2017 as a Committee composed of:

Erik Møse, President, Angelika Nußberger, Yonko Grozev, judges, and Anne-Marie Dougin, Acti n g Deputy Section Registrar ,

Having regard to the above application lodged on 14 September 2012,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Ismet Karabulut, is a Turkish national, who was born in 1945 and lives in Münster. He was represented before the Court by Ms M. Oerder, a lawyer practising in Mönchengladbach. The German Government (“the Government”) were represented by one of their Agents, Mr H.-J. Behrens, Ministerialrat , of the Federal Ministry of Justice and Consumer Protection.

2. Relying on Article 8, taken alone and in conjunction with Article 14 of the Convention, the applicant alleged that, as a remand prisoner, he had had no right to receive parcels containing food, beverages or tobacco, unlike convicted prisoners. He also claimed that he had had no effective remedy before the domestic authorities, as required by Article 13 of the Convention, for his complaints in that regard.

3. On 26 April 2016 these complaints were communicated to the Government and the remainder of the application declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4. The Turkish 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), indicated that they did not wish to exercise that right.

A. Background to the case

5. On 25 February 2010 the applicant was detained on remand on a warrant for his arrest issued by the Mönchengladbach District Court two days earlier, based on strong suspicions that he had been trafficking drugs on a large scale jointly with others and a risk that he might abscond.

6. On 15 July 2011 the Mönchengladbach Regional Court convicted him of drug trafficking on a large scale and of aiding and abetting drug trafficking on a large scale. It sentenced him to seven years ’ imprisonment, ordering the continuation of his detention.

7. The applicant lodged an appeal on points of law against his conviction and an appeal against the detention order.

8. The Regional Court did not allow the appeal relating to the detention order and referred it to the Düsseldorf Court of Appeal, which quashed the order and ordered the applicant ’ s release on 9 August 2011. It held that there were still strong suspicions that the applicant had committed the offences in question, as his appeal on points of law against his conviction was still pending, as well as a risk that he might abscond. However, the Regional Court had not conducted the proceedings with the necessary diligence, in violation of the requirement to expedite proceedings where an accused is detained on remand, thus rendering the applicant ’ s continued detention (see paragraph 13 below) disproportionate. He was released the same day.

9. On 31 May 2012 the Düsseldorf Court of Appeal dismissed the applicant ’ s appeal on points of law against his conviction.

B. Constitutional complaint at issue

10. On 28 February 2011 the applicant lodged a constitutional complaint, alleging that the provisions of the North Rhine-Westphalia Execution of Detention on Remand Act, wh ich had entered into force on 1 March 2010, infringed his rights. He argued, inter alia , that the newly introduced blanket ban on remand prisoners receiving any parcels containing food, beverages or tobacco (see paragraph 14 below), without any possibility of taking into account the circumstances of an individual case or exercising discretion or granting exceptions, constituted a disproportionate interference with his right to general freedom of action ( allgemeine Handlungsfreiheit ), as protected by Article 2 § 1 of the Basic Law, and his right to respect for family life. He also claimed that remand prisoners were discriminated against in comparison to convicted prisoners, who were allowed to receive up to three parcels containing food, beverages or tobacco a year. He emphasised that detention on remand did not necessarily last for a short period of time only, as was evident from his case.

11. As regards the admissibility of his constitutional complaint, the applicant submitted that, as a remand prisoner, he was directly and personally affected by the relevan t provisions of the North Rhine ‑ Westphalia Execution of Detention on Remand Act. A notice had been put up in the visiting area of the institution in which he was detained containing information about legislative reform and the prohibition on receiving parcels containing food, beverages or tobacco from 1 March 2010 onwards. It also said that the possibility of receiving Christmas, Easter or annual parcels had been discontinued without replacement. No additional measures, neither legal nor factual, were required from the authorities to implement that provision. He and his wife, who had visited him in the penal institution, had made several enquiries with the staff in that regard and had been told that there were no exceptions to the ban on such parcels for remand prisoners. He was not required to have recourse to the specialist courts ( Fachgerichte ) prior to lodging the constitutional complaint because, as regards the provision at issue, such proceedings would not help to clarify questions of fact or of law, which was the purpose of the principle of subsidiarity of constitutional complaints (see paragraph 23 below).

12. On 7 March 2012 a panel of three judges of the Federal Constitutional Court refused to accept the applicant ’ s constitutional complaint for adjudication without providing reasons (no. 2 BvR 454/11). The decision was served on the applicant on 14 March 2012.

C. Relevant domestic law and practice

1. Scope of detention on remand

13. Under domestic law, a person is detained on remand, rather than after conviction, until his or her conviction becomes final, including during appeal proceedings.

2. Situation of remand prisoners and convicted prisoners in North Rhine-Westphalia concerning parcels

14. As part of the 2006 reform of the federal system ( Föderalismusreform ), the competency to regulate the execution of detention on remand was transferred to the Länder . On 27 October 2009 North Rhine-Westphalia adopted the North Rhine-Westphalia Execution of Detention on Remand Act ( Gesetz zur Regelung des Vollzugs der Untersuchungshaft in Nordrhein-Westfalen ) , which entered into force on 1 March 2010. Section 23 provided that remand prisoners could receive parcels, except if they contained food, beverages or tobacco ( Nahrungs- und Genussmittel ) or any contents that could jeopardise security or order in the penal institution. Prior to the entry into force of the Act, remand prisoners had been allowed to receive up to three parcels containing food, beverages or tobacco a year.

15. At the material time, convicted prisoners were allowed to receive up to three parcels containing food, beverages or tobacco a year. Following an amendment to the North Rhine-Westphalia Execution of Sentences Act ( Gesetz zur Regelung des Vollzuges d er Freiheitsstrafe in Nordrhein ‑ Westfalen ) in 2015, they are no longer allowed to receive such parcels.

16. On 19 January 2016 a ministerial instruction ( Rundverfügung des Justizministeriums, no. 4510 – IV.40, über den Paketverkehr der Gefangenen und der in der Sicherungsverwahrung Untergebrachten in den Justizvollzugsanstalten des Landes, Paket-RV ) was issued, which maintained that prisoners were not allowed to receive parcels containing food, beverages or tobacco if the parcels were addressed to specific prisoners. However, such parcels would be allowed if they were sent by social and charitable institutions and would not be handed over to specific prisoners.

3. Case-law of the Federal Constitutional Court concerning restrictions on the right to receive parcels during detention

17. The case-law of the Federal Constitutional Court provides that it is possible to restrict the right of remand prisoners to receive parcels. In one case, the court accepted the argument that an unrestricted right to receive parcels would overwhelm penal institutions, as every parcel would have to be examined by staff in the presence of the detainee to check whether its contents would endanger the purpose of the detention on remand or the security of the penal institution (Fed eral Constitutional Court, nos. 2 BvR 786/11 and 2 BvR 832/71, § 32, decision of 14 March 1973). However, a general ban on parcels is only allowed if it is impossible to adequately avert a real danger to the public interest to prevent remand prisoners absconding, tampering with evidence or reoffending through individual measures (ibid.). The court did not rule on where the boundaries were to be drawn concerning the administrative cost, time, and effort that could reasonably be demanded of the penal institutions (ibid., § 33).

18. On 22 January 2008 the Federal Constitutional Court refused to accept a constitutional complaint for adjudication which was directed against a provision of the Bavaria Execution of Sentences Act ( Bayerisches Strafvollzugsgesetz ), which prohibited convicted prisoners from receiving parcels containing food, beverages or tobacco (Federal Constitutional Court, no. 2 BvR 66/08, 22 January 2008). It provided reasons and considered that the constitutional complaint was inadmissible. The applicant had not been directly affected by the provision in question, which was why he had had to turn to the specialist courts prior to lodging a constitutional complaint against the legislative act itself (ibid., §§ 3 and 7). He could have turned to the penal institution and requested permission to receive such parcels and lodged an appeal before the competent courts against a decision refusing such permission (ibid., § 7). In such proceedings he could have elaborated on his needs and concerns about the constitutionality of the provision at issue (ibid.). The applicant had neither advanced any reasons why he could not reasonably turn to the specialist courts first, nor were such reasons apparent (ibid.).

4. Case-law of other domestic courts concerning restrictions on parcels containing food, beverages or tobacco in detention

19. In decision Vollz (Ws) 26/09 of 1 July 2010 the Saarland Court of Appeal considered the blanket ban on receiving parcels containing food, beverages or tobacco for juveniles detained after a final conviction under section 56 of the Saarland Execution of Juvenile Sentences Act ( Saarländisches Jugendstrafvollzugsgesetz ) to be in accordance with the Basic Law. In that case, the applicant, who had asked the prison authorities to grant him the right to receive such parcels three times a year and had subsequently challenged their refusal to do so before the competent specialist courts, had, inter alia , complained of discriminatory treatment because remand prisoners were, at that time, allowed to receive such parcels. The court found that the presumption of innocence applied to remand prisoners, which allowed for more severe restrictions in relation to persons detained after a final conviction (ibid., § 36).

5. Remedies against measures concerning the execution of detention on remand

20. A remand prisoner may apply to the court for a decision against a decision or measure taken by an authority concerning execution of remand or where the authority has not taken a decision within three weeks of a request being made (Article 119 a of the Code of Criminal Procedure). Article 304 of the Code provides that decisions made in accordance with Article 119 a are amenable to appeal.

6. Admissibility of constitutional complaints against legislative acts

21. Section 90(1) of the Federal Constitutional Court Act ( Bundesverfassungsgerichtsgesetz ) in conjunction with Article 93 § 1 no. 4a of the Basic Law provide that any person claiming a violation of his or her fundamental rights through an act or omission in the exercise of public authority, including legislation, may lodge a constitutional complaint with the Federal Constitutional Court. A constitutional complaint directed against a legislative act has to be lodged within one year of its entry into force (section 93(3) of the Federal Constitutional Court Act).

22. For a constitutional complaint to be admissible, the applicant must be personally, currently and directly affected ( persönlich, gegenwärtig und unmittelbar betroffen ) by the act or omission in question. Where a constitutional complaint is directed against a legislative act, the act must, without any individual measure of implementation, interfere with the rights of the person concerned (see Fed eral Constitutional Court, nos. 1 BvR 1384/85 and 1 BvR 30/86, § 16, decision of 25 February 1986). That will be the case where the provision directly interferes with the constitutional rights of the person concerned (see Federal Constitutional Court, no. 1 BvR 1249/83 and others, § 17, decision of 12 December 1984).

23. Where it is possible to have recourse to the specialist courts to address the violation, the constitutional complaint may only be lodged after all remedies have been exhausted (section 90(2) of the Federal Constitutional Court Act). According to the settled case-law of the Federal Constitutional Court, the principle of subsidiarity also applies to constitutional complaints challenging provisions of law (see Federal Constitutional Court, no. 1 B vR 1509/83, § 17, decision of 2 December 1986). Where the person affected by the provision at issue could reasonably obtain redress by bringing the matter before the specialist courts, a constitutional complaint lodged directly against a provision of law is inadmissible (ibid.). The purpose of that requirement is to ensure that the Federal Constitutional Court does not take far-reaching decisions without the facts and law being established (see Fed eral Constitutional Court, nos. 1 BvR 777/85 and others, § 58, decision of 11 October 1988). That not only applies where the provision is open to interpretation or provides for a margin of appreciation, but also when it does not leave such a margin (ibid.). There is no requirement to turn to the specialist courts where the provision at issue forces the person concerned to make arrangements which he or she can no longer correct at a later stage, where the specialist courts are unable to resolve the constitutional law matter at issue or where bringing the matter to a specialist court would clearly have no prospects of success (ibid., with further references). Furthermore, where having recourse to the specialist courts would result in severe and irreparable harm for the applicant, the Federal Constitutional Court may, in exceptional circumstances, render a decision on a constitutional complaint prior to the remedies before the specialist courts being exhausted (see Federal Constitutional Court, nos. 1 BvR 632/80 and others, § 44, decision of 3 November 1981).

7. Review of the constitutionality of a legislative act in connection with a specific case (konkrete Normenkontrolle)

24. Article 100 § 1 of the Basic Law provides that, if a specialist court tasked with examining a case concludes that a law on whose validity its decision depends violates the Basic Law, the proceedings are to be stayed, and a decision on the constitutionality of the provision is to be obtained from the Federal Constitutional Court.

8. The Federal Constitutional Court ’ s procedure to decide whether or not to accept a constitutional complaint for adjudication (Annahmeverfahren)

25. Sections 93a and 93b of the Federal Constitutional Court Act allow the court to refuse to accept constitutional complaints for adjudication which are not of fundamental constitutional significance and the acceptance of which is not necessary to enforce the applicant ’ s rights under the Basic Law. Under section 93d(1) of the Act, the court is not required to give reasons for its decision not to accept a constitutional complaint for adjudication.

26. Even where the Federal Constitutional Court gives reasons for its decision not to accept a constitutional complaint for adjudication, the decision is not binding ( Bindungswirkung ) on other cases, as they do not contain an adjudication of the admissibility and merits of the constitutional complaint (see Federal Constitutional Court, nos. 1 BvL 18/93 and others, § 63, decision of 24 January 1995).

COMPLAINTS

27. Relying on Article 8, taken alone and in conjunction with Article 14 of the Convention, the applicant alleged that, as a remand prisoner, he had had no right to receive parcels containing food, beverages or tobacco, unlike convicted prisoners. He also claimed that he had had no effective remedy before the domestic authorities, as required by Article 13 of the Convention, for his complaints in that regard.

THE LAW

28. The Government contested the admissibility of the application on the grounds that the applicant could not claim to be “victim” within the meaning of Article 34 of the Convention and that he had not exhausted domestic remedies as required by Article 35 § 1 of the Convention.

A. The applicant ’ s victim status

29. In the Government ’ s view, the applicant, in the absence of an individual measure of implementation, from either the prison authorities or a court, had not been directly affected by section 23 of the North Rhine ‑ Westphalia Execution of Detention on Remand Act. For him to have been directly affected by the provision, a parcel containing food, beverages or tobacco would have had to have been sent to him and stopped by the prison authorities, neither of which had occurred. Moreover, the applicant had not formally turned to the management of the detention facility to seek a decision on a matter directly involving him.

30. They submitted that the applicant should not be seen as a “potential victim” within the meaning of the Court ’ s case-law either. The provision at issue had not required him to modify his conduct to avoid prosecution, in contrast to the applicant in the case of S.A.S. v. France ([GC], no. 43835/11, § 57, ECHR 2014 (extracts)). Nor had the application of the provision in question resulted from an event beyond the applicant ’ s control, unlike in the case of Burden v. the United Kingdom ([GC], no. 13378/05, § 35, ECHR 2008), or negatively affected him by its mere existence, as in the cases of Marckx v. Belgium (13 June 1979, Series A no. 31) and Johnston and Others v. Ireland (18 December 1986, Series A no. 112). In those cases, the challenged provisions had also had a more profound effect and the applicants had been unable to bring about an individual measure of implementation in a reasonable manner. The present case concerned a hypothetical interference with the applicant ’ s rights at a later point in time. The fact that he had been a remand prisoner, as a result of which the North Rhine-Westphalia Execution of Detention on Remand Act had applied to him, did not make him a “potential victim”. Otherwise, any remand prisoner could challenge any provisions of the Act that provided for restrictive measures. They concluded that the present application constituted an actio popularis which was not provided for under the Convention.

31. The applicant submitted that he had be en directly affected by section 23 of the North Rhine-Westphalia Execution of Detention on Remand Act, as the provision had applied to him while he had been detained on remand. No individual measure of implementation had been necessary because the provision did not provide for any exceptions. Any decision by the prison authorities or a specialist court would have only confirmed that he was prohibited from receiving parcels containing food, beverages or tobacco. He was a “direct” rather than “potential” victim because he had been prevented from receiving such parcels by the provision itself. The number of persons affected by a provision could not determine whether or not they were to be seen as “victims”. Rather, it was decisive whether the persons concerned had wished to receive parcels containing food, beverages or tobacco and that such parcels would have been sent to the remand prisoners if the prohibition had not come into force. He and his wife had made several enquiries to the staff of the penal institution and had been told that there were no exceptions to the ban on such parcels for remand prisoners. As a result, she had refrained from sending the applicant such a parcel. Lastly, the conclusion to be drawn from the Government ’ s arguments would render it impossible to challenge a law in an application to the Court, in contravention of the Court ’ s case-law.

32. The Court reiterates that, in order to be able to lodge a petition in pursuance of Article 34 of the Convention, a person must be able to claim “to be the victim of a violation ... of the rig hts set forth in the Convention ...” (see Burden , cited above, § 33). In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (ibid.). The Convention does not, therefore, envisage the bringing of an actio popularis for the interpretation of the rights set out therein or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention (ibid.). It is, however, open to a person to contend that a law violates his rights, in the absence of an individual measure of implementation, if he is required either to modify his conduct or risks being prosecuted or if he is a member of a class of people who risk being directly affected by the legislation (ibid., § 34, with further references; see also Michaud v. France , no. 12323/11, §§ 51-53, ECHR 2012 ).

33. The Court notes that section 23 of the North Rhine-Westphalia Execution of Detention on Remand Act which entered into force on 1 March 2010, did not require the applicant to modify his conduct to avoid the risk of being prosecuted or disciplinary sanctions. Yet, the provision applied to all persons detained on remand in North Rhine-Westphalia, including the applicant, who was d etained on remand there from 25 February 2010 until 9 August 2011. The prohibition on remand prisoners receiving parcels containing food, beverages or tobacco was not subject to any further conditions and the provision did not provide for any exceptions or allow for any discretion on the part of the prison authorities. A notice had been put in the visiting area of the institution in which the applicant had been detained, containing information about legislative reform, the prohibition on receiving parcels containing food, beverages or tobacco from 1 March 2010 onwards. It had also said that the possibility of receiving Christmas, Easter or annual parcels had been discontinued without replacement.

34. Even though the applicant claimed that he and his wife had made several enquiries to the staff of the penal institution and had been told that there were no exceptions to the ban on such parcels for remand prisoners, it is not disputed that the applicant ’ s wife had never tried to send a parcel containing food, beverages or tobacco to the applicant. The Court considers that the applicant and his wife could, by sending such a parcel, have tried, without much difficulty, whether the prison authorities would indeed stop the parcel. Against this background, the Court considers it doubtful whether the applicant was directly affected by the legislation in question and can claim to be a “victim” of the alleged violations within the meaning of Article 34 of the Convention. However, it considers that this question can be left open for the reasons set out below (see paragraphs 35 to 43 below).

B. Exhaustion of domestic remedies

35. The Government submitted that the applicant had failed to exhaust domestic remedies. 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 and that that requirement was not fulfilled in the case of an inadmissible constitutional complaint ( Haase v. Germany , no. 11057/02, §§ 62-64, ECHR 2004 ‑ III (extracts)). While the Federal Constitutional Court had not provided reasons for its decision not to accept the applicant ’ s constitutional complaint for adjudication, it was evident that it had done so because the complaint had been inadmissible. Not only had the applicant, in the absence of an individual measure of implementation, not been directly affected by the legislative provision in question, contrary to the requirement of section 90(1) of the Federal Constitutional Court Act, but he had also not exhausted remedies, as required by section 90(2) (see paragraph 23 above).

36. In line with the principle of subsidiarity, a constitutional complaint against a legislative provision was, according to the Government, inadmissible if the applicant could reasonably have pursued a remedy before the specialist courts, including where the impugned law did not provide for a margin of appreciation (see paragraph 23 above). It was for that reason that the Federal Constitutional Court had refused to accept a constitutional complaint for adjudication which had been directed against a provision of the Bavaria Execution of Sentences Act, which prohibited convicted prisoners from receiving parcels containing food, beverages or tobacco (see paragraph 18 above). The applicant in the present case could have requested permission from the prison authorities to receive such a parcel and, if they had denied that request in line with the wording of the provision in question, he could have subsequently requested a decision by the competent court in accordance with Article 119a of the Code of Criminal Procedure and, if need be, lodged an appeal against that decision (see paragraph 20 above). The specialist courts would have had to assess whether the prohibition contained in section 23 of the North Rhine-Westphalia Execution of Detention on Remand Act had to be interpreted in a restrictive manner so as to ensure respect for the applicant ’ s rights under the Basic Law and the Convention, or whether t hey had to refer the matter to the Federal Constitutional Court under Article 100 § 1 of the Basic Law (see paragraph 24 above). The applicant could have subsequently lodged a constitutional complaint against the decisions of the specialist courts.

37. The applicant submitted that he had exhausted domestic remedies, as required by Article 35 § 1 of the Convention, by lodging his constitutional complaint against section 23 of the North Rhine-Westphalia Execution of Detention on Remand Act within the relevant one-year time-limit (see paragraph 21 above). It was mere speculation that the decision of the Federal Constitutional Court not to accept his constitutional complaint for adjudication had been based on inadmissibility, as the court had not provided any reasons for its decision. Nor could any conclusions to that end be drawn from the court ’ s decision in relation to the Bavaria Execution of Sentences Act, which applied to convicted prisoners, whereas persons detained on remand were to be presumed innocent. Lastly, having recourse to the specialist courts first would have been pointless, given the clear wording of the provision in question, and would only have led to a delay in the protection of his rights. If the specialist courts had considered the provision to be incompatible with the Basic Law, they would have had to refer the matter to Federal Constitutional Court in accordance with Article 100 § 1 of the Basic Law, which was the only court competent to rule on the constitutionality of a legislative act. Referrals under Article 100 § 1 of the Basic Law were very rare in practice, with a total of eight referrals between 2011 and 2015.

38. 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. Whereas 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).

39. The applicant lodged a constitutional complaint with the Federal Constitutional Court to challenge the constitutionality of section 23 of the North Rhine-Westphalia Execution of Detention on Remand Act (see paragraphs 10 and 11 above). 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 (cited above, § 63), 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 25 above) and reiterates that it does not infringe Article 6 § 1 of the Convention if national superior courts, such as the Federal Constitutional Court, refuse to accept a complaint by simply referring to the legal provisions allowing for that procedure if the questions raised by the complaint are not of fundamental importance (see Wildgruber v. Germany (dec.), no. 32817/02, 16 October 2006).

41. The Government submitted that the applicant ’ s constitutional complaint was inadmissible for two reasons, that is, because he had not been directly affected by the provision in question, contrary to the requirement of section 90(1) of the Federal Constitutional Court Act, and because he had not exhausted remedies, as required by section 90(2). With regard to the latter aspect, the Government submitted that the Federal Constitutional Court ’ s decision not to accept a constitutional complaint against a provision of the Bavaria Execution of Sentences Act, which prohibited convicted prisoners from receiving parcels containing food, beverages or tobacco, for adjudication was due to its inadmissibility. While that decision was a decision to refuse to accept the constitutional complaint for adjudication (see paragraph 18 above), which is not binding on other cases (see paragraph 26 above), the Court takes note of the long-standing case-law of the Federal Constitutional Court that, in line with the principle of subsidiarity, a constitutional complaint against a legislative provision is inadmissible if the applicant could reasonably have pursued a remedy before the specialist courts, including where the impugned law did not provide for a margin of appreciation (see paragraph 23 above).

42. In line with the case-law of the Federal Constitutional Court, the applicant would thus, prior to lodging a constitutional complaint, have been required to request permission from the prison authorities to receive a parcel containing food, beverages or tobacco, and, if they had denied that request in line with the wording of the provision in question, he could have subsequently requested a decision by the competent court in accordance with Article 119a of the Code of Criminal Procedure and, if need be, lodged an appeal against that decision (see paragraph 20 above). The specialist courts would have had to assess whether the prohibition contained in section 23 of the North Rhine-Westphalia Execution of Detention on Remand Act had to be interpreted in a restrictive manner so as to ensure respect for the applicant ’ s rights under the Basic Law and the Convention – which the Court considers a possible outcome in light of the circumstances of the case, in particular where the duration of the remand detention exceeded a certain duration –, or whether it had to refer the matter to the Federal Constitutional Court under Article 100 § 1 of the Basic Law (see paragraph 24 above). Only after pursuing remedi es before the specialist courts could the applicant have lodged an admissible constitutional complaint against the decisions of the specialist courts.

43. In light of the foregoing, the Court considers that the inadmissibility of the applicant ’ s constitutional complaint is evident and that, consequently, the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. 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 14 December 2017 .

Anne-Marie Dougin Erik Møse              Acting Deputy Registrar President