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CASE OF OSTENDORF v. GERMANYCONCURRING OPINION OF JUDGES LEMMENS AND JÄDERBLOM

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Document date: March 7, 2013

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CASE OF OSTENDORF v. GERMANYCONCURRING OPINION OF JUDGES LEMMENS AND JÄDERBLOM

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Document date: March 7, 2013

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CONCURRING OPINION OF JUDGES LEMMENS AND JÄDERBLOM

1. We voted with the Chamber in finding that there has been no violation of Article 5 § 1 of the Convention. However, we cannot subscribe to the reasoning in the judgment. Unlike the majority, we consider that Article 5 § 1 (b) of the Convention is not applicable to the applicant’s detention. However, again unlike the majority, we consider that it can be justified under Article 5 § 1 (c) of the Convention. Paradoxically, we concur in the overall conclusion.

2. The starting point of our analysis is formed by the facts of the case.

The applicant was arrested and detained for about four hours. There was no written order spelling out the reasons for his arrest. However, when the president of the Frankfurt am Main police examined the applicant’s complaint, he stated that the detention was based on section 32 § 1 no. 2 of the Hessen Public Security and Order Act (see paragraph 15 of the judgment).

Section 32 §1 reads as follows:

“1. The police authorities can take a person in custody, when this

...

is indispensable , in order to prevent (“ verhindern ”) the imminent commission or continuation of a criminal act or regulatory offence of considerable importance to the general public,

is indispensable, in order to enforce measures taken under section 31, or

...”

Section 31, to which section 32 § 1 no. 3 refers, concerns banning orders (“ Platzverweisung ”). It gives the relevant authorities, including the police, the power to ban a person from a place or to prohibit a person from entering a place, in order to avert a danger (§ 1). The same authorities can also prohibit a person from entering a specific territory within a municipality or from staying there, when there are reasons to consider that the person will commit a criminal act on that territory (§ 3).

The applicant was detained on the basis of no. 2 of section 32 § 1 only. At no point during the domestic proceedings was no. 3 of section 32 § 1 invoked. We conclude that the applicant was detained in order to prevent him from committing specific criminal acts and regulatory offences, namely those that would be committed during an altercation between hooligans from Bremen and from Frankfurt am Main (see paragraph 91). He was not detained in order to enforce any order that would imply him being banned from entering the football stadium. Nor was he detained for the mere fact that he had left his group, which was under police surveillance on the way to the stadium.

It is on the basis of these facts that we will proceed to examine whether his detention could be justified under Article 5 § 1 of the Convention.

3. We will start with the provision that the majority considers applicable in the present case, namely Article 5 § 1 (b). This provision allows for the deprivation of liberty if it is “the lawful arrest or detention of a person (...) in order to secure the fulfilment of any obligation prescribed by law”.

The majority considers that the applicant was under the specific and concrete obligation not to commit the criminal offence of setting up and taking part in a hooligan brawl at a specific time and place (paragraphs 92 and 93). In disobeying the police order to stay with the group of football supporters he belonged to, the applicant had failed to fulfil his obligation (see paragraph 95). The legal obligation followed, according to the majority, from section 32 § 1 no. 2 of the Hessen Public Security and Order Act (paragraph 91).

We agree with the majority’s finding that the police took the applicant into custody in order to prevent him from committing criminal acts or regulatory offences and that there was a legal basis for that in the Hessian Act. However, we cannot accept that the deprivation of the applicant’s liberty was thus made in order to secure the fulfilment of an obligation prescribed by law, within the meaning of Article 5 § 1 (b) of the Convention.

The reason for this is that the Hessen Act does not specify any obligation which the applicant failed to fulfil. Notwithstanding that the police had specifically ordered the applicant to refrain from arranging a brawl and to stay with his group of football fans, the obligation not to commit criminal acts or regulatory offences (see section 32 § 1 no. 2 of the Hessen Public Security and Order Act) is in our opinion too general for the purpose of Article 5 § 1 (b) of the Convention. There should be a specific and concrete obligation, and a demonstrated failure to fulfil that specific and concrete obligation. The “general duty of obedience to the law” is not such a specific and concrete obligation ( Engel and Others v. Netherlands , 8 June 1976, p. 28, § 69, Series A no. 22). All the examples in the Court’s case law, referred to in paragraph 92 of the judgment, concern obligations to perform specific acts. To the best of our knowledge the Court has never considered that an obligation to refrain from committing criminal acts could constitute an “obligation” within the meaning of Article 5 § 1 (b) of the Convention. The majority considerably extends the scope of that provision by holding that the duty not to commit a criminal offence in the imminent future, to be distinguished from the obligation to comply with a specific measure that has been ordered, is an obligation which, in case of non-fulfilment - or even, as in the present case, in case of the mere risk of non-fulfilment -, falls under it (compare Schwabe and M.G. v. Germany , nos 8080/08 and 8577/08, § 82, 1 December 2011). We think, as the Court held in the Engel case, that such “a wide interpretation would entail consequences incompatible with the notion of the rule of law from which the whole Convention draws its inspiration” ( ibid. , p. 28, § 69).

Things might have been different if a specific banning order had been imposed on the applicant, if he did not comply with that measure, and if in order to enforce compliance with that specific and concrete measure he would have been detained (see, e.g. , Epple v. Germany , no. 77909/01, § 36, 24 March 2005). However, as indicated above, a banning order has never been imposed on the applicant. There was no other obligation to fulfil than the general obligation - imposed by law, not by an individual measure - not to commit certain crimes and regulatory offences. This general obligation did not, in our opinion, become specific and concrete, merely because the applicant was reminded of it in the context of a specific football match.

We therefore consider that Article 5 § 1 (b) of the Convention does not apply.

4. It should be underlined that the applicant was detained in order to prevent him from committing criminal acts and regulatory offences. As indicated above, this was acknowledged by the president of the Frankfurt am Main police, who explicitly referred to section 32 § 1 no. 2 of the Hessen Public Security and Order Act. The preventive purpose of the detention naturally raises the question whether it could be justified under Article 5 § 1 (c) of the Convention. That is indeed the provision dealing specifically with detention for the purpose of prevention.

We note that the majority accepts that the applicant’s detention was effected for the purpose of preventing him from committing an offence, and that the police could consider his detention reasonably necessary to achieve that aim (paragraphs 80 and 81). On these points we agree with the majority.

However, the majority is of the opinion that, while the detention in the present case fell within the scope of Article 5 § 1 (c) of the Convention, it could not be justified under that provision. For the majority, it follows from the wording of that provision, in conjunction with Article 5 § 3, that a preventive detention can be justified only if it is “effected for the purpose of bringing (the arrested or detained person) before the competent legal authority” (Article 5 § 1 (c)), understood in the sense of bringing him to trial (see Article 5 § 3) (paragraphs 67-68 and 82). The majority specifies that a preventive detention is permitted only “in connection with criminal proceedings” (paragraph 68, referring to Ječius v. Lithuania , no. 34578/97, § 50, ECHR 2000-IX). Since the applicant was not suspected of having committed any criminal act, as preparatory acts were not punishable under German law, he was not arrested and detained for prosecution purposes. For that reason, according to the majority, his detention did not comply with one of the conditions set forth in Article 5 § 1 (c) (paragraph 83). It is on this point that we respectfully disagree.

We do not question the majority’s reliance on the current case law of the Court. That case law indeed confirms that Article 5 § 1 (c) only permits deprivation of liberty “in connection with criminal proceedings” ( Ciulla v. Italy , 22 February 1989, p. 16, § 38, Series A no. 148; Epple v. Germany , cited above, § 35; Schwabe and M.G. v. Germany , cited above, § 72). This means that a preventive detention is possible “only in the context of criminal proceedings, for the purpose of bringing (a person) before the competent legal authority on suspicion of his having committed an offence” ( Ječius v. Lithuania , cited above, § 50). In our view this case law has gone too far in holding that the requirement in Article 5 § 1 (c) of bringing the arrested or detained person “before the competent legal authority” means, in all of the situations set out in that provision, that the intention should be to bring “criminal proceedings” against that person. We think that in situations where there is a vital public interest in preventing someone from committing an offence a limited possibility does exist for the law enforcing authorities to detain that person for a short period, even if he has not yet committed a crime and therefore without the possibility that criminal proceedings will be opened against him.

We are aware of the fact that our opinion is not compatible with the current case law. However, we note that this case law without any specific explanation derogates from what the Court stated in Lawless v. Ireland , its very first case. There the Court held:

“Whereas ... paragraph 1 (c) of Article 5 can be construed only if read in conjunction with paragraph 3 of the same Article, with which it forms a whole; whereas paragraph 3 stipulates categorically that ‘everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge ...’ and ‘shall be entitled to trial within a reasonable time’; whereas it plainly entails the obligation to bring everyone arrested or detained in any of the circumstances contemplated by the provisions of paragraph 1 (c) before a judge for the purpose of examining the question of deprivation of liberty or for the purpose of deciding on the merits ; whereas such is the plain and natural meaning of the wording of both paragraph 1 (c) and paragraph 3 of Article 5” ( Lawless v. Ireland , 1 July 1961, p. 52, § 14, Series A no. 3; italics by us).”

We could not agree more. The later case law has unduly restricted the purpose of bringing the detainee before a judge to “deciding on the merits”, and done away with the possible purpose of “examining the question of deprivation of liberty”. We would be in favour of returning to the Lawless interpretation of Article 5 § 1 (c), in combination with Article 5 § 3, which does more justice to prevention as a possible justification for a deprivation of liberty than does the current interpretation.

5. We are also aware of the risks involved with purely preventive detentions of persons whom the authorities want to prevent from committing an offence, while they are not suspected of having already committed one. Surely, guarantees are needed, and the possibilities for such preventive detentions should be limited. We think that a number of the conditions that the majority lists under Article 5 § 1 (b) are also relevant for a preventive detention under Article 5 § 1 (c). However, we do not consider that it is necessary to develop this idea further in the framework of this separate opinion.

One of the guarantees is, as indicated, that the detainee “shall be brought promptly before a judge or other officer authorised by law to exercise judicial power” (Article 5 § 3 of the Convention). However, as the Court held, the fact that a detained person is not charged or brought before a court does not in itself amount to a violation of the first part of Article 5 § 3. No violation of Article 5 § 3 can arise if the arrested person is released “promptly” before any judicial control of his detention would have been feasible ( de Jong, Baljet and van den Brink v. Netherlands , 22 May 1984, p. 25, § 52, Series A no. 77; Brogan and Others v. United Kingdom , 29 November 1988, pp. 31-32, § 58, Series A no. 145-B; İkincisoy v. Turkey , no. 26144/95, § 103, 27 July 2004). An early, “prompt” release, without any appearance before a judge or judicial officer, may occur frequently in cases of “administrative” detention for preventive purposes. Even so, in such a situation it will be enough for the purpose of guaranteeing the rights inherent in Article 5 of the Convention if the lawfulness of the detention can subsequently be challenged and decided by a court.

6. In the present case the applicant was detained in order to prevent a brawl in connection with a football match. In our opinion the police, faced with the situation of a large football event with the assembly of many aggressive supporters in which the applicant appeared and, as assessed by the authorities, planned to instigate fights, could reasonably consider it necessary to arrest and detain the applicant. He was detained for approximately four hours. It does not appear that this period exceeded what was required in order to prevent the applicant from fulfilling his intentions.

For these reasons, we conclude that the applicant’s arrest and detention could be justified under Article 5 § 1 (c).

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