AS TO THE ADMISSIBILITY OF
Application No. 19969/92
by Manfred DAX
against the Federal Republic of Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 7 July 1992, the following members being present:
MM. F. ERMACORA, Acting President of the First Chamber
J.A. FROWEIN
E. BUSUTTIL
A. S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C. L. ROZAKIS
Mrs. J. LIDDY
MM. M. P. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Secretary to First Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 February 1992
by Manfred DAX against the Federal Republic of Germany and registered
on 11 May 1992 under file No. 19969/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
19969/92 - 2 -
THE FACTS
The applicant is a German citizen born in 1947 and presently
detained in prison in Asperg.
It follows from his statements and the documents submitted that
on 29 April 1991 the applicant was convicted by the Freiburg Regional
Court (Landgericht) of rape and sentenced to four years and nine months
imprisonment. The court further ordered the applicant's preventive
detention (Sicherungsverwahrung).
Preventive detention is ordered in accordance with Section 66 of
the German Criminal Code (StGB), inter alia, if the convicted is an
habitual offender representing a danger to society because of a
tendency to commit offences causing serious bodily harm or material
damage. Section 67c provides for judicial review, at regular two-year
intervals (or less, at the discretion of the court), of the necessity
to maintain preventive detention.
The applicant's appeal on points of law was rejected by the
Federal Court (Bundesgerichtshof) on 10 September 1991 as being
ill-founded. The applicant then lodged a constitutional appeal
complaining of his preventive detention.
On 12 November 1991 this remedy was rejected by a panel of three
judges of the Federal Constitutional Court (Bundesverfassungsgericht)
as offering no prospect of success. It is stated in the decision that
according to constant jurisprudence preventive detention as a sanction
for criminal offences of certain weight and as a protection of the
public against the commission of further offences is compatible with
the Constitution. The fact that other legal systems in Europe did not
provide for preventive detention did not violate the principle of
equality or any general principles of international law. Furthermore
there was nothing to show that in the particular circumstances of the
applicant's case preventive detention had been ordered arbitrarily or
in violation of the applicant's constitutional rights.
COMPLAINTS
The applicant considers that his preventive detention violates
Article 6 para. 2 and Article 7 para. 1 in connection with Article 5
para. 1 and also read in conjunction with Article 14 of the Convention.
He submits that preventive detention is a measure which was introduced
by Nazi legislation and is not compatible with the rule of law as it
constitutes punishment for possible future offences.
THE LAW
The applicant complains of his preventive detention ordered by
the Freiburg Regional Court in connection with his conviction of rape
and a sentence of four years and nine months' imprisonment. He
considers this measure to run counter to various provisions of the
Convention.
However the Commission has already in previous cases held that
preventive detention is in principle justified under para. 5 para. 1
(a) being detention, as in the applicant's case, after lawful
conviction (No. 4210/69, Dec. 19.7.66, Collection 35, 144 (149 with
further references at p. 150)). The measure pursues the legitimate aim
of social protection and rehabilitation of offenders (cf. Eur. Court
H.R., Weeks judgment of 2 March 1987, Series A No. 114, p. 25, para.
47) and does not therefore disclose any appearance of a violation of
the Articles invoked by the applicant.
- 3 - 19969/92
In any event the grounds relied on by the sentencing court for
ordering preventive detention are by their very nature susceptible to
change with the passage of time and it will be open to the applicant
to pursue the remedies open to him once he has served his sentence and
starts being detained for preventive purposes only.
It follows that the application in the present circumstances has
to be rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber Acting President of the First Chamber
(M. de SALVIA) (F. ERMACORA)
Full & Egal Universal Law Academy