Published on 4 July 2022

THIRD SECTION

Applications nos. 10100/16 and 29507/21 Rolf Dieter SCHWARZ against Germany lodged on 11 February 2016 and 28 May 2021 respectively communicated on 13 June 2022

SUBJECT MATTER OF THE CASE

The applications concern the arrest and detention of the applicant, a German national, in Thailand.

On 8 February 2010 the Düsseldorf District Court issued a warrant for the applicant’s arrest. On 22 March 2010 several co-accused were arrested. The authorities failed to arrest the applicant, who was registered at an address in Germany, but who was mostly staying in Thailand on the basis of consecutive tourist visas since early 2009. The applicant learned about the arrest warrant against him in March 2010. No request for the applicant’s extradition was made towards the Thai authorities.

On 25 May 2010 the German embassy in Bangkok, upon the public prosecutor’s request, prepared a decision ordering the withdrawal of the applicant’s passport on the ground that he sought to evade prosecution in Germany. On 27 May 2010 the Germany embassy informed the Thai authorities of that decision, the underlying circumstances, the arrest warrant and the ongoing search for the applicant via Interpol. The embassy transmitted the request of the German prosecution authorities for the Thai authorities’ assistance in searching and arresting the applicant and pledged that Germany would reimburse the costs which the Thai authorities would incur in connection with the search and arrest and that Germany would bear the costs for the applicant’s deportation.

On 2 June 2010 the Thai police arrested the applicant and brought him to the Immigration Detention Centre in Bangkok, where consular officers of the German embassy notified the decision to withdraw his passport to the applicant and confiscated it. The withdrawal of his passport rendered the applicant’s visa invalid and his further presence in Thailand unlawful. The applicant was kept in the detention centre until 10 June 2010, when the Thai authorities brought the applicant to the airport and handed him over to German officials. The applicant boarded a plane to Germany, where he was detained on arrival.

On 9 December 2010 the Düsseldorf Regional Court convicted the applicant as an accessory to withholding of salaries and tax evasion. In setting his sentence, the Regional Court considered that the applicant had been detained in Thailand as a result of the withdrawal of his passport, assumed that the applicant’s allegations about the poor detention conditions in Thailand were true and credited the time he had spent in detention in Thailand at a one-to-three ratio.

The proceedings leading to the present applications were split into three separate sets of proceedings at the domestic level. The domestic courts found that different measures taken by the German authorities and challenged by the applicant had been lawful, including, in particular, the decision to withdraw his passport, informing the Thai authorities of that decision and asking them for their assistance in searching and arresting the applicant, the circumstances of the applicant’s arrest, the notification of the decision to withdraw his passport and its confiscation. The domestic courts considered, inter alia , that the applicant’s detention in Thailand had been ordered by the Thai authorities and was not attributable to Germany and that the conditions of his detention there had not fallen short of international minimum standards.

The applicant claims that Germany was responsible for his detention in Thailand, in poor conditions, and alleges a breach of Articles 3 and 5 §§ 1 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the facts of which the applicant complains under Article 5 § 1 of the Convention, notably his arrest and detention in Thailand, occur within the jurisdiction of Germany and engage Germany’s responsibility under the Convention in respect of this complaint (see, in particular, Vasiliciuc v. the Republic of Moldova , no. 15944/11, §§ 21-25, 2 May 2017; Stephens v. Malta (no. 1) , no. 11956/07, §§ 50-54, 21 April 2009; Öcalan v. Turkey [GC], no. 46221/99, § 91, ECHR 2005-IV). In the event that they did, were his arrest and detention in breach of that provision (see, in particular, Öcalan , §§ 86-90 and 92-99, and Vasiliciuc , §§ 37-41, both cited above)?

2. In so far as the applicant complains under Article 3 of the Convention about the conditions of his detention in Thailand, did the facts occur within the jurisdiction of Germany and engage Germany’s responsibility under the Convention in respect of this complaint? In the event that they did, can the applicant still claim to be a “victim” within the meaning of Article 34 of the Convention in respect of the alleged violation, given that the Düsseldorf Regional Court on 9 December 2010, when setting the applicant’s sentence, credited the time which the applicant had spent in detention in Thailand at a one-to-three ratio (see, in particular, Dîrjan and Ștefan v. Romania (dec.), nos. 14224/15 and 50977/15, §§ 22-34, 15 April 2020)? In particular, has the Regional Court acknowledged, either expressly or in substance, the alleged breach of the Convention? In the event that Germany’s responsibility was engaged and that the applicant can still claim to be a “victim” in respect of this complaint, did the material conditions of his detention in Thailand from 2 June 2010 to 10 June 2010, in particular the personal space available in the cell, the sanitary conditions and the alleged absence of a bed, amount to inhuman or degrading treatment, also in view of the duration of the detention (see, in particular, Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 159 ‑ 177 and 196, 15 December 2016; Georgia v. Russia (I) [GC], no. 13255/07, §§ 192-205, ECHR 2014 (extracts); M.S.S. v. Belgium and Greece [GC], no. 30696/09, §§ 223-34, ECHR 2011)?