FIFTH SECTION
DECISION
Application no. 70410/16
Peter BREIDENBACH
against Germany
The European Court of Human Rights (Fifth Section), sitting on 18 December 2018 as a Committee composed of:
André Potocki, President,
Angelika Nußberger,
Mārtiņš Mits, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 25 November 2016,
Having regard to the declaration submitted by the respondent Government on 18 October 2018 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Peter Breidenbach, is a German national, who was born in 1957 and is currently detained in Werl Prison. He was represented before the Court by Mr D. Bach, a lawyer practising in Eschweiler.
The German Government (“the Government”) were represented by their Agents, Mrs A. Wittling-Vogel, Mrs K. Behr and Mr H.-J. Behrens, of the Federal Ministry of Justice and Consumer Protection.
The applicant complained, in particular, under Article 5 § 1 and Article 7 § 1 of the Convention about the retrospective extension of his preventive detention executed in Aachen Prison, beyond the former ten‑year maximum duration applicable at the time of the applicant’s offence, by decision of the Aachen Regional Court of 11 April 2014, confirmed on appeal by the Cologne Court of Appeal on 31 March 2015.
On 24 May 2017 the complaints under Article 5 § 1 and Article 7 § 1 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE LAW
The applicant complained about the retrospective extension of his preventive detention beyond the former ten‑year maximum duration. He relied on Article 5 § 1 and Article 7 § 1 of the Convention.
After the failure of attempts to reach a friendly settlement, by a letter of 24 November 2017 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
By a letter of 7 December 2017 the applicant referred to Article 37 § 1 in fine and indicated that he was not satisfied with the terms of the unilateral declaration.
Following a letter by the Court of 31 May 2018, the Government, by a letter of 24 July 2018, submitted an amended unilateral declaration and again requested the Court to strike out the application in accordance with Article 37 of the Convention.
By a letter of 8 August 2018, the applicant again referred to Article 37 in fine and indicated that he was not satisfied with the terms of the unilateral declaration.
Following a letter by the Court of 4 October 2018, the Government, by a letter of 18 October 2018, submitted an amended unilateral declaration with a view to resolving the issue raised by the application and again requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“After consulting with North Rhine-Westphalia, the Land concerned, with regard to this case, the Federal Government attempted to reach a friendly settlement with the Applicant. This proposal was made by telephone to the Applicant’s legal counsel, attorney Bach, on 23 October 2017. Following consultations with his client, attorney Bach notified the Federal Government by telephone on 13 November 2017 that his client would not agree to the conclusion of the proposed settlement.
The Federal Government regrets that no friendly settlement could be reached with the Applicant. Because the Federal Government acknowledges that the Convention has been violated, it hereby submits to the Court the following unilateral declaration.
The Federal Government recognises that the Applicant’s rights arising from Articles 5 (1) and 7 (1) of the Convention were violated by the review decisions of Aachen Regional Court dated 11 April 2014 as well as of Cologne Higher Regional Court dated 31 March 2015.
If the Court strikes this case from its list, the Federal Government is willing to accept a claim for compensation in the amount of €13,000.00. This sum of €13,000.00 would be deemed to settle all potential claims of the Applicant in connection with the above-mentioned Application against the Federal Republic of Germany and the Land of North-Rhine Westphalia, including in particular compensation for the Applicant’s damage (including non-pecuniary damage) as well as costs and expenses. The Federal Government considers a sum of €13,000.00 to be fair in light of the Court’s case law in similar cases.
The Federal Government therefore requests that this Application be struck out of the Court’s list of cases pursuant to Article 37 (1) (c) of the Convention. The Federal Government’s acknowledgement of a violation of Article 5 (1) and 7 (1) of the Convention and its acceptance of the claim for compensation in the amount of €13,000.00 constitutes ‘[an]other reason’ within the meaning of this provision. ”
By a letter of 19 November 2018, the applicant informed the Court that he maintained his position expressed in his letter of 8 August 2018.
The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Herman v. the Netherlands (dec.), no. 35965/14, §§ 15-18, 17 November 2015).
The Court has established its practice in a number of cases brought against Germany concerning complaints about the violation of the right to liberty under Article 5 § 1 of the Convention and of the prohibition on retrospective punishment under Article 7 § 1 of the Convention in applications concerning the retrospective prolongation of the applicants’ preventive detention beyond the former statutory ten-year maximum duration applicable at the time of their offences (see, for example, Glien v. Germany, no. 7345/12, 28 November 2013).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the present application (Article 37 § 1 (c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
The Court considers that the above amount should be paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the Convention. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 5 § 1 and Article 7 § 1 of the Convention, and directs in consequence:
(a) that the respondent State is to pay the applicant EUR 13,000 (thirteen thousand euros), within three months from the date of notification of this decision, in respect of pecuniary and non-pecuniary damage as well as costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 24 January 2019.
Milan BlaškoAndré Potocki
Deputy RegistrarPresident
Full & Egal Universal Law Academy