AS TO THE ADMISSIBILITY OF
Application No. 14289/88
by E.E.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 14 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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;
Having regard to the application introduced on 28 July 1988
by E.E. against the Federal Republic of Germany and registered
on 20 October 1988 under file No. 14289/88;
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 facts of the case, as they have been submitted by the
applicant, may be summarised as follows:
The applicant, born in 1925, is a German national. When
lodging his application he was detained at Straubing Prison. Before
the Commission the applicant is represented by Mr. C. Rückel, a lawyer
practising in Munich.
The applicant's previous application No. 3606/68 concerning
his conviction for murder and sentence to life imprisonment by the
Nuremberg Regional Court (Landgericht) on 24 October 1966 was declared
inadmissible on 16 May 1969.
On 6 June 1984 the Regensburg Regional Court dismissed the
applicant's request for suspension of the remainder of his sentence of
life imprisonment. The Court found that the execution of his sentence
could not be suspended on probation under S. 57 (a) of the Penal Code
(Strafgesetzbuch).
S. 57 (a) of the Penal Code, which refers partly to S. 57
para. 1 of the Penal Code, provides that the competent court suspends
a sentence of life imprisonment after 15 years have been served if the
heinous nature of the crime (besondere Schwere der Schuld) does not
require further execution of the sentence, if it can reasonably be put
to a test whether the applicant will not commit any offences outside
prison, and if he agrees.
The Regional Court found that, although the applicant had
committed a particularly heinous crime, further execution of his
sentence would, in principle, no longer be necessary. However, having
regard to a psychiatric expert opinion of January 1983, the Court
considered that the applicant had no sense of reality and could not
yet live without control outside prison.
On 13 January 1988 the Regensburg Regional Court dismissed the
applicant's second request that his sentence of life imprisonment be
suspended on probation.
In its very detailed decision, the Court, having heard
the applicant and having had regard to reports of the Straubing Prison
dated December 1981, June 1982, July 1986 and December 1987, and to
two medical expert opinions of January 1983 and October 1986, found
that he could not be released on probation. The composition of the
chamber having changed, the Court considered in particular that the
murder which the applicant had committed was particularly heinous and
demanded the execution of his sentence of life imprisonment. Further,
the Court found that there was still a risk that the applicant would
commit further serious crimes or even murder if at liberty. He was
still showing serious deficiencies in his social behaviour which
outweighed the positive circumstances, in particular the relationship
with his fiancée who would be prepared to take care of him.
In these and the following proceedings the applicant was
represented by counsel.
On 9 March 1988 the Nuremberg Court of Appeal (Oberlandes-
gericht) dismissed the applicant's appeal (Beschwerde).
On 25 May 1988 the Federal Constitutional Court (Bundes-
verfassungsgericht) refused to admit the applicant's constitutional
complaint (Verfassungsbeschwerde) on the ground that it offered no
prospect of success. The Constitutional Court found in particular
that the decision of the Regional Court and of the Court of Appeal
were based on detailed reasoning and did not appear arbitrary.
COMPLAINTS
1. The applicant complains that the decisions of the Regensburg
Regional Court of 13 January 1988 and the Nuremberg Court of Appeal of
9 March 1988 refusing his release from prison are arbitrary and amount
to inhuman and degrading treatment within the meaning of Article 3 of
the Convention. He submits in particular that these court decisions
contradict in their reasoning the earlier decision of the Regional
Court of 1984 as to the particularly heinous nature of the crime.
Furthermore, the Courts incorrectly assessed the evidence as to the
question of his probable conduct outside prison.
2. The applicant also complains under Article 5 para. 1(a) of the
Convention that the Regensburg Regional Court and the Nuremberg Court
of Appeal, in their decisions of January and March 1988, did not
correctly consider the issue of his release on probation under S. 57
(a) of the Penal Code; and that thus his detention after conviction is
no longer lawful.
THE LAW
1. The applicant complains that the decisions of the Regensburg
Regional Court and the Nuremberg Court of Appeal of 1988 refusing the
suspension of his sentence of life imprisonment constituted a
violation of Article 3 (Art. 3) of the Convention, which reads:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission recalls that a sentence to life imprisonment
does not as such constitute a breach of Article 3 (Art. 3) of the Convention
(cf. No. 7994/77, Dec. 6.5.78, D.R. 14 p. 238).
In the present case, the Commission observes that, following a
judgment of the Federal Constitutional Court of 21 June 1977 (cf.
EuGRZ 1977 p. 267), the German Penal Code has been amended and now
provides the prisoner with a legal possibility of obtaining
conditional release in court proceedings after having served at least
15 years of his sentence of life imprisonment. This legal provision
also applied to the applicant.
As regards the contested decisions of the Regensburg Regional
Court and the Nuremberg Court of Appeal dismissing the applicant's
requests for release, the Commission recalls that treatment will be
considered inhuman only if this treatment reaches a certain stage of
gravity, causing considerable mental or physical suffering (Eur. Court
H.R., judgment in the case of Ireland v. the United Kingdom of 18
January 1978, Series A no. 25, p. 65, para. 162).
Furthermore, as regards the criteria concerning the notion of
"degrading treatmant", the treatment itself will not be degrading
unless the person concerned has undergone humiliation or debasement
attaining a minimum level of severity. That level has to be assessed
with regard to the circumstances of the case (see the above-mentioned
judgment, pp. 65 et seq., paras. 162, 167 and 179-81).
In the present case, the Commission, having examined in the
light of the above case-law the applicant's complaint that the
refusal of his release was arbitrary, finds that in the circumstances
of this case, the detailed reasons given by the German courts do not
disclose any appearance of a violation of Article 3 (Art. 3) of the Convention.
It follows that this aspect of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains under Article 5 para. 1 (a) (Art. 5-1-a)
of the Convention that the Regensburg Regional Court and the Nuremberg Court of
Appeal incorrectly examined his request under S. 57 (a) of the Penal Code to
have his sentence of life imprisonment suspended on probation.
Article 5 para. 1 (Art. 5-1) of the Convention, in so far as relevant,
reads:
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure
prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court; ..."
The Commission observes that the applicant was convicted of
murder by the Nuremberg Regional Court on 24 October 1966 and
sentenced to life imprisonment, and has, therefore, been lawfully
detained within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the
Convention. This the applicant does not deny.
The Commission recalls that the rights and freedoms
safeguarded by the Convention do not include a right to have a penalty
imposed by a court in criminal proceedings suspended on probation (cf.
No. 7648/76, Dec. 6.12.77, D.R. 11 p. 175). However, the Convention
organs have examined subsequent decisions relating to detention, in
particular decisions to revoke a conditional suspension of a sentence of life
imprisonment under Article 5 para. 1 (a) (Art. 5-1-a) of the Convention (cf.
Eur. Court H.R., Weeks judgment of 2 March 1987, Series A No. 114, pp. 21 et
seq., paras. 38 - 53).
In the present case, the Commission notes that the German courts, in
detailed decisions, refused the applicant's release under S.57 (a) in
connection with S. 57 para. 1 of the Penal Code, on the two grounds that first
the heinous nature of the murder which he had committed required the further
execution of his sentence, and second that there was a risk that he would
commit criminal offences outside prison. The Commission finds that
these court decisions were taken in accordance with the procedure prescribed by
German law. The refusal of the applicant's release on probation was based on
grounds which refer to and depend upon his conviction in 1966, especially as
regards the heinous nature of the murder committed by him. The Commission does
not find it arbitrary that the Regensburg Regional Court, in its second
decision of 13 January 1988, the composition of the chamber having changed,
deviated from its first decision of 1984 as to the question whether or not the
heinous nature of the crime required further execution of the applicant's
sentence of life imprisonment.
Consequently, in the circumstances of the present case there is no
appearance of a violation of Article 5 para. 1 (Art. 5-1) of the Convention.
It follows that this part of the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)