The European Commission of Human Rights sitting in private on
5 May 1986, the following members being present:
MM C.A. NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
M.A. TRIANTAFYLLIDES
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs G.H. THUNE
Sir Basil HALL
Mr H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (Art. 25);
Having regard to the application introduced on 3 August 1984 by
T.C. against the Federal Republic of Germany and registered on
29 October 1984 under file No. 11215/84;
Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German citizen born in 1959 and living in Fürth.
He is represented by Mr Küfner and others, lawyers practising in
Nuremberg.
It follows from the applicant's statements and the documents submitted
by him that on the evening of 5 March 1981 a demonstration of young
people took place in Nuremberg following a meeting in a so-called
communication centre. In the course of this demonstration cars and
other properties were damaged. The demonstrators later returned to
the communication centre which was then surrounded by the police. In
the morning of 6 March 1981 all persons present in the centre were
arrested. They were suspected of having participated in the violent
actions.
Among the persons arrested was the applicant who declared, when he was
interrogated by the police after his arrest, that he had followed the
demonstrators only in order to take some photos of the events. He had
been an observer and not a demonstrator.
In the evening of 6 March 1981 the applicant was brought before the
investigating judge M. The judge issued a warrant of arrest against
the applicant stating that there were sufficient reasons to suspect
the applicant of having participated in violent acts committed by a
crowd of people resulting in damage to property. He had participated
in a gathering of about two hundred people marching through the
streets and damaging cars and shop windows. The judge considered that
the applicant was likely to abscond in order to avoid punishment and
that there was danger of collusion as the applicant belonged to or
sympathised with squatters.
On 12 March 1981 the investigating judge examined the question of
whether or not detention on remand was justified and interrogated the
applicant (Haftprüfungsverfahren). Subsequent to this hearing he
ordered the applicant's release. The applicant was released on the
following day.
On 16 June 1981 the proceedings against the applicant were
discontinued for lack of sufficient evidence.
On 24 August 1981, at the applicant's request the Nuremberg District
Court (Amtsgericht) ordered that the applicant should be compensated
for his detention on remand.
On 19 February 1982 the Public Prosecution (General- staatsanwalt)
awarded compensation in the amount of DM 722.65 and refused to
acknowledge the applicant's claims in excess of this sum.
The applicant therefore brought an action for damages with the
Nuremberg Regional Court (Landgericht) claiming an additional sum of
DM 1,155.74. He alleged that he was wrongly detained on remand; that
on his arrest he was not given the possibility to contact a lawyer and
to make statements in regard to the charges levelled against him.
Further he argued that judge M who issued the warrant of arrest
against him, had under the internal court rules concerning the
distribution of cases (Geschäftsverteilungsplan) not been competent to
act as investigating judge. The applicant informed the Regional Court
that he also raised these complaints before the Bavarian
Constitutional Court. He argued that his claims were well-founded
both under Section 7 (1) of the Act on Compensation for Prosecution
Measures (StrEG) and under Art 34 of the Basic Law (GG) in connection
with Section 839 of the Civil Code (BGB) for misconduct in office.
On 12 August 1982 the Regional Court ordered the defendant State
Bavaria to pay further compensation in the amount of DM 100.
Both parties lodged an appeal (Berufung).
On 9 March 1984 the Bavarian Constitutional Court (Verfassungs-
gerichtshof) rejected the applicant's constitutional complaint stating
inter alia that there was nothing to show that judge M had arbitrarily
assumed his competence to issue a warrant of arrest in the applicant's
case. Nor was it arbitrary that the judge used standardised forms in
some 140 cases to justify the warrants of arrest without dealing with
the declarations made by the applicant at his interrogation by the
police.
On 28 May 1984 a group of three judges of the Federal Constitutional
Court (Bundesverfassungsgericht) rejected a constitutional complaint
against the warrant of arrest and the Bavarian Constitutional Court's
decision. The decision states that the applicant's complaints under
Articles 2 (2), 103 (1) and 104 (1) and (3), first sentence, of the
Basic Law (GG) are unsubstantiated and therefore inadmissible.
On 30 May 1984 the applicant accepted a friendly settlement in the
civil proceedings pending before the Nuremberg Court of Appeal
(Oberlandesgericht) concerning his claim for damages. According to
this settlement the defendant State Bavaria accepted to pay
DM 1,055.74 and all costs of the proceedings. The applicant submits
that the finding and reasons contained in the Bavarian Constitutional
Court's decision caused the State of Bavaria to accept a friendly
settlement.
COMPLAINTS
The applicant maintains his complaints raised before the German
constitutional courts, namely that he was arbitrarily arrested and
detained on remand, and that he was not given adequate opportunity to
defend himself after his arrest. In view of the Commission's decision
rejecting Application No. 9997/82 he does not maintain the complaint
that judge M was not competent to act as investigating judge.
He invokes Articles 5 and 6 of the Convention (Art. 5, art. 6).
THE LAW
1. The applicant alleges that his rights under Articles 5 and 6
of the Convention (Art. 5, art. 6) were violated by his arrest and
detention on remand from 6 to 13 March 1981.
One of the conditions for the admissibility of an application under
Article 25 of the Convention (Art. 25) is that the applicant may claim
to be a victim of an action or omission, by a High Contracting Party,
which in his view violates his rights under the Convention. In the
present case the applicant complained of his arrest and detention both
to the Bavarian Constitutional Court and subsequently to the Federal
Constitutional Court as well as to the civil courts dealing with his
claim for compensation. In the civil proceedings the applicant
expressly relied on the argument that his arrest and subsequent
detention were the result of a misconduct in office
(Amtspflichtverletzung). However, in the civil proceedings the
applicant accepted, subsequent to the decisions rejecting his
constitutional complaints, a friendly settlement. This contractual
arrangement settled his claims for compensation with regard to the
alleged arbitrary arrest and detention. The defendant State not only
accepted to pay the full amount of compensation claimed by the
applicant but also the entire costs of the civil proceedings. The
applicant has himself pointed out that this settlement had been
influenced by the findings and reasons stated in the decision of the
Bavarian Constitutional Court.
The applicant has thus, by using domestic remedies available to him,
namely an action for damages before the civil courts, received and
accepted compensation for the alleged violation and has therefore
renounced to the further use of local remedies, ie to have his appeal
in the civil proceedings decided by the competent court. This appeal
was, inter alia, based on alleged misconduct in office and thus in
substance raised the same issues as the applicant's constitutional
complaints.
In these circumstances the Commission concludes that the applicant can
no longer claim to be a victim of the alleged violations and his
application is therefore manifestly ill-founded within the meaning of
Article 27 para. 2 of the Convention (Art. 27-2) (see Decs.
Nos. 5577-5583/72, 15.12.75, D.R. 4, 4 ; No. 8865/80, 10.7.81,
D.R. 25, 252).
2. Even assuming that the friendly settlement reached before the
Court of Appeal did not cover the applicant's complaint under
Article 5 para. 1 of the Convention (Art. 5-1), the Commission is not
required to decide whether or not the facts alleged by the applicant
disclose any appearance of a violation of this provision as, under
Article 26 of the Convention (Art. 26), it may only deal with a matter
after all domestic remedies have been exhausted according to the
generally recognised rules of international law.
In the present case the applicant failed to substantiate his
complaints concerning alleged violations of Articles 2 (2) and 104 GG
(protecting the liberty of the person) in his constitutional appeal to
the Federal Constitutional Court which consequently rejected the
appeal as being to this extent inadmissible. In these circumstances
he cannot be considered to have exhausted the remedies available to
him under German law. Moreover, an examination of the case does not
disclose the existence of any special circumstances which might have
absolved the applicant, according to the generally recognised rules of
international law, from exhausting the domestic remedies at his
disposal.
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and his
application would in this respect have to be rejected under
Article 27 para. 3 of the Convention (Art. 27-3).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)