FIFTH SECTION

DECISION

Application no . 76871/12 Harald -Dieter ENGWER against Germany

The European Court of Human Rights (Fifth Section), sitting on 25 March 2014 as a Committee composed of:

Ganna Yudkivska , President, Angelika Nußberger , André Potocki , judges , and Stephen Phillips, Deputy Section Registrar ,

Having regard to the above application lodged on 26 November 2012,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Mr Harald -Dieter Engwer , is a German national, who was born in 1967 and is currently detained in Berlin- Tegel Prison. When lodging his application, he was represented before the Court by Mr S.K. Schneider, a lawyer practising in Wittenberg. The latter informed the Court by a letter dated 30 October 2013 that he did not represent the applicant any longer in the present proceedings.

The German Government (“the Government”) were represented by two of their Agents, Mr H.-J. Behrens and Ms K. Behr, of the Federal Ministry of Justice.

In his application, the applicant complained under Article 5 § 1 and Article 7 § 1 of the Convention that the retrospective order for his preventive detention under Article 66b §§ 1 and 2 of the Criminal Code, made by the Potsdam Regional Court on 28 October 2010 and confirmed by the Federal Court of Justice on 21 June 2011 and by the Federal Constitutional Court on 15 July 2012, had violated his right to liberty and the prohibition on retrospective punishment.

The application was communicated to the Government, who submitted their observations on the admissibility and merits in German on 24 September 2013 and the English translation on 28 October 2013. In these observations, the Government confirmed the information provided previously by the applicant ’ s counsel that on 19 April 2013, the Berlin Regional Court had declared the applicant ’ s retrospective preventive detention terminated and had ordered the applicant ’ s release once its decision had become final. According to the information available to the Court, the decision has not (yet) become final as the proceedings are still pending before the Berlin Court of Appeal following the prosecution ’ s appeal against the Berlin Regional Court ’ s decision.

The Government ’ s observations were forwarded to the applicant ’ s counsel, who was invited to submit observations on behalf of the applicant until 7 November 2013. In his letter of 30 October 2013 informing the Court that he did not represent the applicant any longer, the applicant ’ s counsel indicated that the applicant was still in Berlin Tegel Prison. By letter of 5 November 2013, sent to the applicant in person at his Berlin Tegel Prison address, the Court ’ s Registry informed the applicant of his lawyer ’ s withdrawal from the case. It further notified the applicant of the imminent expiry of the time-limit for submission of his observations and of the possibility to ask for an extension thereof and asked the applicant to designate a new representative until 26 November 2013 by reference to the terms of Rule 36 § 2 of the Rules of Court. No reply was received to the Registry ’ s letter.

By letter dated 10 December 2013, sent by registered post to the applicant, the applicant was asked another time to designate a representative, until 2 January 2014 at the latest. Furthermore, he was notified that the period allowed for submission of his observations had expired on 7 November 2013. The applicant ’ s attention was drawn to the fact that the Court could conclude that he was no longer interested in pursuing the application and decide to strike it out of its list of cases if he did not reply.

The confirmation of receipt of the Court ’ s letter at Berlin Tegel Prison (signed presumably by a member of the prison staff) was received at the Court on 19 December 2013. However, no response to the Court ’ s letter has been received.

THE LAW

The Court reiterates that, according to its practice, failure to comply with the requirement of proper legal representation, as defined in Rule 36 §§ 2 and 4, may result in the discontinuation of the proceedings (compare, inter alia , Grimaylo v. Ukraine ( dec. ), no. 69364/01, 7 February 2006; and R.W. v. the Netherlands ( dec. ), no. 37281/05, 14 September 2010).

The Court notes that the applicant was asked by the Court twice, on 5 November 2013 and on 10 December 2013, to designate a representative in the proceedings before the Court. There is nothing to indicate that the applicant did not receive the Court ’ s letters in Berlin Tegel Prison, the last letter, in particular, having been sent by registered mail and having been received at that prison. The applicant did not reply to any of the Court ’ s letters. The Court, therefore, does not see any reason to deviate from its practice of considering that it is no longer justified to continue the examination of an application in case of the applicant ’ s failure to designate an advocate (Article 37 § 1 (c) of the Convention; see Grimaylo , ibid. ; and R.W. v. the Netherlands , ibid. ).

The Court further reiterates that an applicant ’ s failure to submit written observations on the admissibility and merits of the case or other information or documents requested by the Court may warrant the conclusion that he or she does not intend to pursue the application (see, inter alia , Kazimov v. Russia ( dec. ), no. 17645/04, 9 March 2006; Oberländer v. Germany ( dec. ), no. 9643/04, 7 December 2010; and Gvozden v. Slovenia ( dec. ), no. 36344/12, 17 December 2013).

Having regard to the applicant ’ s failure to submit observations in reply to the Government ’ s observations – or indeed any reply to the Court ’ s letters – in the circumstances described above, the Court considers that the applicant must be regarded as no longer wishing to pursue his application within the meaning of Article 37 § 1 (a) of the Convention.

Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. It observes, in particular, that the relevant standards for the compliance of preventive detention under th e Criminal Code with Articles 5 § 1 and 7 § 1 of the Convention have been clarified in a number of recent judgments of the Court (see, in particular, M. v. Germany , no. 19359/04, ECHR 2009; B v. Germany , no. 61272/09, 19 April 2012; and Glien v. Germany , no. 7345/12, 28 November 2013 (not yet final)).

Accordingly, the Court considers that the present application should be struck out of its list of cases.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Step hen Phillips Ganna Yudkivska Deputy Registrar President