Communicated on 12 May 2014

FIFTH SECTION

Application no. 80442/12 Cecile LECOMTE against Germany lodged on 9 December 2012

STATEMENT OF FACTS

The applicant, Ms Cécile Lecomte , is a French national, who was born in 1981 and lives in Lüneburg . She is represented before the Court by Ms U. Donat , a lawyer practising in Hamburg .

A. The circumstances of the case

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

1. The applicant ’ s arrest, the order for her detention and its termination

The applicant is an anti-nuclear and environmental activist. She has repeatedly used her climbing skills to call public attention to her protest.

On 6 November 2008 around 11 a.m. the applicant and three further persons belonging to the Robin Wood organisation, an environmental protection group, climbed on the arch of a railway bridge, over the tracks. The group fixed banners expressing protest against the transport, by train, of radioactive waste from La Hague, France, to the interim storage facility in Gorleben, scheduled from 7 to 9 November 2011. The members of the group refused to have themselves roped down by the police, who had dissolved their assembly. They were finally roped down by Federal Police ’ s mountain rescue team. The police then arrested only the applicant at 14.40 p.m. while the other three participants remained at liberty. They further seized the banners and the climbing equipment.

(a) The detention order issued by the Lüneburg District Court

On 6 November 2008 at 17.30 p.m. the Lüneburg District Court, having heard the applicant and the Lüneburg police, ordered the applicant ’ s detention for preventive purposes under section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act ( Niedersächsisches Gesetz über die öffentliche Sicherheit und Ordnung , see Relevant domestic law below). That detention was to last until the arrival of the “castor” [1] containers in Dannenberg train station and until 10 November 2008, 24.00 p.m. at the most.

The District Court found that the applicant, who has been represented by counsel throughout the proceedings before the domestic courts, and three further persons had let themselves down on a rope on a railway bridge. They had unrolled banners protesting against the castor transport. A commuter train had to be stopped because its passage would have put the protesters at risk.

The District Court considered that the applicant ’ s detention was indispensable in order to prevent the imminent commission of a regulatory offence of considerable importance to the general public , as required by section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act .

The District Court found that there was a risk that the applicant would block the forthcoming transport of the castor containers scheduled from 7 to 9 November 2011 by a climbing action. Thereby, she would commit regulatory offences under the Railway Construction and Operation Act ( Eisenbahn-Bau- und Betriebsordnung ) and the Assembly Act ( Versammlungsgesetz ) which would be dangerous to the public.

That risk was also imminent in the applicant ’ s case. Not only had the applicant just carried out a climbing action. Referring to ten sets of proceedings which had been pending before the courts in the past years, the District Court noted that the applicant was known for expressing political protest, including protest against the transport of castor containers, by climbing actions and for being ready to breach the law in that context. In a newspaper article dating from 29 October 2008 the applicant had explained that she was ready to protest politically against the forthcoming transport of castor containers and even to put up with a short deprivation of liberty therefor. On 4 November 2008 the applicant had fixed a banner on the awning of the Göttingen train station. In view of the risk emanating from the notoriously intractable applicant, it was unnecessary to wait for the castor transport to reach Lüneburg before taking her into detention.

The District Court further considered that there were no milder measures which were equally effective to avert the risk at issue. In particular, it was neither sufficient to make a banning order on the applicant nor to seize her climbing equipment. As had recently been confirmed by the Lüneburg Regional Court in different proceedings and as transpired from the recent newspaper article, it had to be expected that the applicant would pursue her illegal climbing actions despite a banning order or the seizure of her climbing equipment, which she could easily have replaced with the help of the well-organised group of protesters against the castor transports.

(b) The confirmation of the detention order by the Lüneburg Regional Court

On 7 November 2008 the Lüneburg Regional Court, having heard the applicant in person, dismissed the applicant ’ s appeal against the District Court ’ s decision.

The Regional Court confirmed that the applicant ’ s detention had been lawful under section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act . It stressed that the applicant had repeatedly undertaken measures obstructing the transport of castor containers in the past, for instance by roping herself down over the tracks on 5 July 2007 and 16 January 2008. Having regard to these incidents and that of 6 November 2008 it had to be expected that the applicant would commit a regulatory offence of considerable importance to the general public , such as a sit-in on, roping down over or fettering herself to the tracks. Due to her climbing action of 6 November 2008 two commuter trains had to be stopped. There were no milder means than the applicant ’ s detention to avert the risk of such a regulatory offence. In particular, having regard to her persistent refusal to have herself roped down off the bridge on 6 November 2008, it could not be expected that she would respect less intrusive measures such as a banning order.

(c) The termination of the detention by the Lüneburg District Court

On 9 November 2008 at 17.25 p.m. the Lüneburg District Court quashed the order of 6 November 2008 for the applicant ’ s detention for preventive purposes and ordered the applicant ’ s immediate release.

The District Court found that, having regard to the applicant ’ s deteriorating state of health, there was no longer a risk that the applicant would commi t a criminal or regulatory offence of considerable importance to the general public , as required by section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act , in the context of the transport of castor containers to Gorleben. Moreover, her continued detention was no longer proportionate in these circumstances. The District Court noted that medical doctor C., who had visited the applicant in detention on the latter ’ s request, had confirmed that the applicant suffered from serious rheumatism which necessitated her to move continuously and was in a poor mental condition. Her detention in Braunschweig, with little possibility to move, had already led to her joints having stiffened. The doctor had explained that she was not in a position to assess the applicant ’ s fitness for detention, but that it appeared excluded that the applicant would be capable to carry out a climbing action in the days to come.

The applicant was released on the same day at 18.32 p.m.

2. The proceedings for review of the lawfulness of the applicant ’ s detention and of the conditions thereof

(a) The proceedings before the Lüneburg District Court

On 15 July 2009 the Lüneburg District Court dismissed the applicant ’ s action dated 8 November 2008 under section 19 § 2 of the Lower Saxony Public Security and Order Act (see Relevant domestic law below) against the Lüneburg police for a finding that both the order for her detention and the conditions of its execution had been unlawful.

As regards the lawfulness of the applicant ’ s detention the District Court, endorsing the findings of fact made by the Regional Court in its decision of 7 November 2008 as well as its reasoning (see above), confirmed that the detention had complied with section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act .

As regards the execution of the detention order against the applicant, the District Court considered that the manner in which the detention had been enforced had been lawful and had complied, in particular, with the provisions of the Police Custody Regulations ( Polizeigewahrsamsordnung , see Relevant domestic law below ).

The District Court noted that the detention order was executed in the detention wing of the Lüneburg Police Station until 7 November 2008 and subsequently in the detention wing of the Braunschweig Police Station.

Having regard to the applicant ’ s complaint that her detention cells did not have windows, but only ventilation slots, the District Court considered that the equipment of the detention cell had complied with no. 15 of the Police Custody Regulations ( see Relevant domestic law below ) and that there had been enough light. The recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) were irrelevant here.

Moreover, there had not been a breach of the right to sufficient night ’ s rest provided by no. 12 of the Police Custody Regulations ( see Relevant domestic law below ). In Lüneburg, some noise made by a ventilator may have made it more difficult for the applicant to fall asleep, but the police was not obliged to be considerate of individual sensitivities. The fact that the light had remained switched on all night in Braunschweig was a consequence of the applicant ’ s own behaviour. She had insisted spending the night on the cell ’ s cupboard the height of which was 1.90 metres. The light was therefore necessary for her own protection as it could not be guaranteed otherwise that a possible fall off the cupboard would have been noticed immediately. The applicant could ask herself whether she would have preferred having been fettered for her protection instead.

The District Court further considered that the applicant had failed to substantiate that her state of health in detention had deteriorated in a manner so as to render her detention disproportionate already prior to the District Court ’ s decision of 9 November 2008 ordering her release. There had not been a written and impartial medical report proving the applicant ’ s allegation in that respect. The doctor who had visited the applicant in detention and had persuaded the then competent District Court judge to order her release had probably been a sympathiser.

The District Court did not expressly address the applicant ’ s complaints that she had not had any possibilities to occupy herself , such as a telephone, radio or television, in her cell, which had been equipped with a bed, an empty desk, a chair and an open cupboard. There had neither been any games nor a possibility to do sport nor any contact to other detainees . Only on 8 November 2011 she had received a pen and paper .

(b) The proceedings before the Lüneburg Regional Court

On 28 October 2009 the Lüneburg Regional Court dismissed the applicant ’ s appeal against the District Court ’ s decision of 15 July 2009.

As to the legality of the applicant ’ s detention, the Regional Court, endorsing the findings in its decision of 7 November 2008, confirmed that the applicant ’ s detention as such had complied with section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act . In particular, at the time of her arrest, the applicant had already committed a regulatory offence as she had refused to leave the bridge immediately following the dissolution of the assembly on it by the police. Having regard to the climbing equipment she had brought along and to the information available on the applicant, which confirmed that she had repeatedly used climbing actions as a means of protesting against nuclear energy, there was a risk that she would again rope herself down and trespass on the tracks. The risks emanating from and for the train traffic for public security outweighed the applicant ’ s right to freedom of expression, which included protesting by unusual means. The duration of the applicant ’ s detention had also been proportionate; in particular, a duty on the applicant to report to the police at regular intervals would not have been effective.

The Regional Court further confirmed that the conditions of the applicant ’ s detention, albeit onerous for the applicant, had complied with the applicable legal provisions and had not been so unacceptable as to render the execution of her detention unlawful.

As regards the applicant ’ s detention during the first night in the detention cell in the Lüneburg Police Station, the Regional Court found that the cell had been uncomfortable, but had complied with no. 15.1 of the Police Custody Regulations in the version then in force ( see Relevant domestic law below ). In that police station there were no detention cells suitable for a deprivation of liberty lasting several days. Despite this, the police had convincingly explained that transporting the applicant to and back from Braunschweig for the hearing the following day would have restricted her even more in her liberty of movement. Furthermore, she had not complained to the police about the noise at night emanating from a ventilator.

Moreover, the Lüneburg police had taken care of the applicant ’ s well ‑ being after her hearing before the Regional Court (7 November 2008, 14.10 p.m. until 14.50 p.m.) while they waited for the Regional Court ’ s decision until approximately 21.00 p.m. with the applicant in an office in the Lüneburg Police Station in that they had taken her outside three times.

As regards the applicant ’ s subsequent detention in the Braunschweig Police Station, the Regional Court noted that the applicant arrived at that station on 8 November 2008 at 2.10 a.m. after a police doctor had confirmed her fitness for detention despite the breathing difficulties she had informed the police of. The Regional Court further confirmed the District Court ’ s finding that the pictures of fettered persons in the corridor of the detention wing – which included a photo of a hog-tied person – may have been tasteless. However, it has neither been shown that the pictures had been put up to intimidate prisoners nor that the applicant had been intimidated in a considerable manner by them. Moreover, the court considered that it had been lawful for the police to leave the light switched on during the night. It noted that the applicant had climbed on a cupboard measuring 1.90 metres and had failed to descend on the police ’ s request. By choosing not to descend her by force and by leaving the light on instead the police had respected as much as possible the applicant ’ s right to liberty.

As regards the applicant ’ s right to stays outside during her detention in Braunschweig, the Regional Court, endorsing the findings of the District Court in this respect, found that the right provided by no. 10 of the Police Custody Regulations ( see Relevant domestic law below ) to be allowed to stay outside for 45 minutes per day in so far as the staffing and infrastructural situation permitted had not been breached. The court noted that on 8 November 2008 the applicant had been outside on the premises of the Braunschweig Police Station from 14.20 until 15.02 p.m. Fettering the applicant to a female police officer during that time had been necessary in order to prevent the applicant from absconding. The applicant, an excellent climber, had previously shown that she was not ready to comply with the police ’ s orders and there had not been a closed courtyard as in prison. The applicant had not, therefore, been “taken for a walk like an animal” on the parking. On 9 November 2008 the applicant had been outside from 12.22 until 12.35 p.m. She had not been fettered and had been allowed to climb on a tree. She had not objected to returning to the detention wing afterwards. She had also been able to move within her cell in order to alleviate ailments resulting from her rheumatism.

As regards the applicant ’ s right to receive visits in detention, the Regional Court observed that under no. 11 of the Police Custody Regulations ( see Relevant domestic law below ), such visits were permitted in so far as they did not endanger the purpose of the detention and were authorised by the police. The said provision had to be read in conjunction with section 20 § 4 of the Lower Saxony Public Security and Order Act ( see Relevant domestic law below ). The Regional Court noted that the Braunschweig Police had received some 200 telephone calls of sympathisers of the applicant, some of whom had insulted the police, which had considerably disturbed the execution of the applicant ’ s detention. It had not been unlawful in these circumstances for the police not to grant visits by persons who had presented themselves at the police station without having lodged a request for a visit. In any event, the applicant had been visited by three persons while in detention, in addition to the two visits by doctor C., who had prescribed her necessary medication and had brought a couple of magazines. Her right to receive visits had not been unlawfully restricted in these circumstances.

The Regional Court ’ s decision was served on the applicant ’ s counsel on 6 November 2009.

(c) The proceedings before the Federal Constitutional Court

By submissions dated 1 December 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court against the decision of the Lüneburg District Court of 6 November 2008, confirmed on appeal by the Lüneburg Regional Court on 7 November 2008, and against the decision of the Lüneburg District Court of 15 July 2009, confirmed on appeal by the Lüneburg Regional Court on 28 October 2009. She argued, in particular, that her right to liberty, the principle of proportionality and her right to freedom of assembly and of expression had been violated by her long illegal detention in unreasonable conditions in order to prevent insignificant regulatory offences. Her complaint was registered under file no. 2 BvR 2794/09.

On 18 August 2010 the Federal Constitutional Court informed the applicant that her constitutional complaint of 1 December 2009 against the decisions of the Lüneburg District Court of 15 July 2009, confirmed on appeal by the Lüneburg Regional Court on 28 October 2009, in so far as the decisions concerned the conditions of her detention, had been registered under file no. 2 BvR 1779/10.

On 24 August 2010 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint against the above-mentioned four decisions in so far as these decisions had concerned the lawfulness of the applicant ’ s detention, without giving reasons (file no. 2 BvR 2794/09). The decision was served on the applicant ’ s counsel on 21 September 2010.

On 30 May 2012 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint against the decision of the Lüneburg District Court dated 15 July 2009, confirmed on appeal by the Lüneburg Regional Court on 28 October 2009, without giving reasons (file no. 2 BvR 1779/10). The decision was served on the applicant ’ s counsel on 18 June 2012.

B. Relevant domestic law

1. Provisions of the Lower Saxony Public Security and Order Act

Under section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act , on custody, the administrative authorities and the police may take a person into custody if this is indispensable in order to prevent the imminent commission or continuation of a criminal or regulatory offence of considerable importance to the general public.

Section 19 § 2 of the Lower Saxony Public Security and Order Act , on judicial review, provides that the detained person may request, even after the termination of the detention, a review of the lawfulness of the detention within one month. The request shall be lodged with the District Court in whose district the person was taken into custody (see section 19 §§ 2 and 3). The District Court ’ s decision is subject to appeal to the Regional Court.

Pursuant to section 20 § 4 of the Lower Saxony Public Security and Order Act , on the treatment of detained persons, the detained person may only be imposed restrictions which are necessary to attain the purpose of the deprivation of liberty or for the maintenance of order in custody.

2. Provisions of the Police Custody Regulations

The relevant provisions of the Police Custody Regulations, in the version in force at the time of the applicant ’ s detention, were issued by the Lower Saxony Ministry for the Interior on 2 July 2001 and were applicable until 31 December 2008. They contained rules on the execution of police custody.

No. 10 of the Police Custody Regulations, on stays outside, provided that persons who were taken into custody for more than 24 hours should be given the opportunity to stay outside for 45 minutes per day in so far as the staffing and infrastructural situation permitted so.

Under no. 11.1 of the Police Custody Regulations, on visits, detained persons could receive visits in so far as the purpose or execution of the detention order was not endangered thereby. Visits, other than those by lawyers, had to be authorised by the competent police authority.

No. 12 of the Police Custody Regulations, on night ’ s rest, provided that persons taken into custody had a right to sufficient night ’ s sleep, from 9 p.m. until 6 a.m., in so far as the operational events permitted so.

Pursuant to no. 15.1 of the Police Custody Regulations, detention cells had to be equipped with a fixed bed, a mattress, one to two blankets and an interphone or bell. Under no. 15.3 of the said Regulations, the cells had to be sufficiently tempered, illuminated and aired.

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention that her detention for preventive purposes violated her right to liberty . It was not justified under any of the sub-paragraphs (a) to (f) of Article 5 § 1 and was disproportionate.

As her unlawful detention served the purpose of preventing her from expressing her views on the transport of castor containers in demonstrations or by climbing actions, her rights under Article 10 and Article 11 of the Convention were equally disregarded.

Furthermore, in the applicant ’ s submission, the conditions of her detention in police custody, which were humiliating and worse than those for convicted offenders and which caused her to become handicapped at a rate of thirty per cent as a result of a post-traumatic stress disorder, were in breach of Article 3 of the Convention.

QUESTIONS TO THE PARTIES

1. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention in all respects ?

2. Was the applicant deprived of her liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty fall within any of the sub-paragraph s (a) to (f) of this provision? And was her detention “lawful” within the meaning of Article 5 § 1 ?

3 . Has there been an interference with the applicant ’ s freedom of expression within the meaning of Article 10 § 1 of the Convention and / or with the applicant ’ s freedom of peaceful assembly within the meaning of Article 11 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2 and / or Article 11 § 2?

4 . Ha ve the applicant ’ s conditions of detention as a whole been in breach of Article 3 of the Convention?

[1] Cask for the storage and transport of radioactive material.