AS TO THE ADMISSIBILITY OF
Application No. 25629/94
by H.F. K.-F.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 16 January 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the 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 14 December 1993
by H.F. K.-F. against Germany and registered on 9 November 1994 under
file No. 25629/94;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 27 April 1995 and the observations in reply submitted by
the applicant and received on 22 June 1995;
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 1936, is a German national and resident
in Karlsruhe.
A. Particular circumstances of the case
In May 1991 the applicant and his wife rented a holiday apartment
in Ulmen where they lived as from 24 May 1991. They paid the rent in
respect of their stay in May.
On 4 July 1991, at 7.50 p.m, the Cochem-Zell Police Station
(Schutzpolizeiinspektion) was informed by Mrs. S. that her tenants, the
applicant and his wife, had caused a car accident and had rented the
apartment with the intention of not complying with their tenancy
obligations and were about to abscond without having paid outstanding
rent and telephone costs.
At 9.45 p.m., following initial inquiries with Mrs. S. and her
family as well as with the applicant and his family at their address
in Ulmen, the applicant and his wife were arrested on suspicion of
fraud. The police officers assumed a risk of their absconding, as it
appeared that they had attempted to leave by car. They were brought
to the Cochem-Zell Police Station for verification of their personal
data, where they arrived at 11.00 p.m. The details of the charges
against them and of the circumstances of their arrest were recorded in
a police report completed on 5 July 1991 at 0h45.
During the night, further inquiries were conducted as to the
applicant's different addresses and information was received that the
applicant had been involved in other criminal proceedings on suspicion
of fraud and that preliminary investigations on the suspicion of fraud
had been conducted against him by the Hanau Public Prosecutor's Office
(Staatsanwaltschaft).
The applicant was questioned in the morning of 5 July 1991
(between 8.30 and 9.40 a.m.). Mrs. S. was heard at 9.05 a.m.
In a telephone conversation at about 9.25 a.m., the competent
Public Prosecutor at the Hanau Public Prosecutor's Office informed the
Cochem Police about the proceedings conducted against the applicant in
Hanau and stated that there was no intention to request an arrest
warrant against the applicant.
At 10.30, the applicant and his wife were released and brought
back to Ulmen.
In September 1992 the Koblenz Public Prosecutor's Office
(Staatsanwaltschaft) discontinued the investigations against the
applicant and his wife, noting in particular that they had paid most
of the outstanding sums in mid July 1991.
In October 1991 the applicant and his wife requested the Koblenz
Public Prosecutor's Office to prosecute the police officers and public
prosecutors involved in the events of 4 and 5 July 1991 on charges of
unlawful deprivation of liberty, attempted coercion and insult.
On 2 January 1992 the Koblenz Public Prosecutor's Office
discontinued investigations against the Police Officers L., W., K., R.
who had been involved in their arrest, and also two public prosecutors.
The Office considered that, having regard to the charges raised by the
landlord Mrs. S. and the situation found by the Police Officers in
Ulmen in the evening of 4 July 1992, there was a reasonable suspicion
of fraud and a risk of their absconding.
On 21 May 1992 the Koblenz Court of Appeal (Oberlandesgericht),
upon the applicant's request for a court decision ordering the
prosecution of the four Police Officers, confirmed the decision of
2 January 1992. The Court found that there was no suspicion that the
Police Officers had committed unlawful deprivation of liberty and
coercion. The Court agreed with the reasoning of the Prosecutor's
Office as regards the suspicion of fraud and also considered that,
according to the police inquiries, the family's places of residence
were unclear, and, moreover, proceedings on several fraud charges were
already pending against the applicant. The question whether there had
been a need to detain them until the next morning could be left open
as there had been no intention to deprive them unlawfully of their
liberty.
Subsequently the applicant complained to the Public Prosecutor's
Office that no formal decision had been taken upon his charges against
a fifth Police Officer of the Cochem Police Station.
On 28 December 1992 the Public Prosecutor's Office also
discontinued these investigation proceedings for insult, unlawful
deprivation of liberty and coercion.
On 30 November 1993 the Koblenz Court of Appeal dismissed the
applicant's request for a judicial decision ordering the prosecution
of this Police Officer. Referring to its earlier decision, the Court
repeated that the applicant's detention had been necessary in view of
the suspicion of fraud and in order to check his personal data,
pursuant to S. 127 para. 1, S. 163 b of the Code of Criminal Procedure
(Strafprozeßordnung). There were no indications that the Police
Officer concerned had been aware that the applicant's detention had
exceeded the permissible period of 12 hours.
On 15 March 1994 the Federal Constitutional Court refused to
admit the applicant's constitutional complaint against the Court of
Appeal's decision of 30 November 1993.
B. Relevant domestic law
S. 112 to 131 of the German Code of Criminal Procedure
(Strafprozeßordnung) concern the arrest and detention of a person on
reasonable suspicion of having committed a criminal offence.
According to S. 112, detention on remand is ordered against a
suspect when there is a strong suspicion that he or she has committed
a criminal offence and if there is a reason for his or her detention
such as absconding, the danger of absconding or the risk of collusion.
S. 127 para. 1 provides for a provisional arrest if the offender
is apprehended in the act and if there is a risk of absconding or if
his personal data cannot immediately be established. This provision
also states that the establishment of the personal data by the police
or the Public Prosecutor's Office is governed by S. 163 b para. 1.
S. 163 b para. 1 provides that the police or the Public
Prosecutor's Office may take the necessary measures to establish the
identity of a person suspected of a criminal offence including his
arrest if necessary. Detention pursuant to S. 163 b may not exceed the
time necessary to establish the person's personal data and it may not
exceed a total period of 12 hours (S. 163 c).
According to S. 127 para. 2, in case of immediate danger (Gefahr
im Verzug), the Public Prosecutor's Office or police officers may order
the provisional arrest of a person if the conditions for an arrest
warrant or confinement order are met.
S. 128 provides that the person who is arrested must, if not
released, be promptly brought before a judge at the district court
where the person was arrested, at latest during the day following his
arrest.
S. 98 of the Code of Criminal Procedure concerns the seizure of
objects in the course of criminal proceedings. In its paragraph 1 it
stipulates the principle that a seizure is effected on the basis of a
seizure warrant issued by a judge. According to its paragraph 2, any
officer having seized an object without a seizure order should, within
three days, arrange for confirmation by a judge of the seizure
concerned, in the event that the persons concerned by the seizure were
not present at the relevant time or that they objected to the seizure.
Moreover, the person concerned can request a decision by a judge at any
time.
S. 23 para. 1 of the Introductory Act to the Courts Organisation
Act (Einführungsgesetz zum Gerichtsverfassungsgesetz) provides for a
review by the courts of ordinary jurisdiction (ordentliche Gerichte)
of the lawfulness of orders, decrees or other measures taken by
judicial authorities (Justizbehörden) in order to determine individual
matters in the areas of civil law including commercial law, civil
procedure, jurisdiction in non-contentious matters and the criminal
justice system. S. 28 para. 1 of the Introductory Act provides inter
alia that, to the extent that the measure concerned was unlawful and
prejudiced the complainant, the court shall set the measure aside; or
if the measure had been withdrawn or otherwise terminated, it shall,
upon request, render a declaratory decision that the measure concerned
was unlawful, if the complainant can justify an interest in such a
decision.
COMPLAINTS
The applicant complains that he was unlawfully arrested, detained
and questioned at the Police Station because of a minor tenancy debt.
He also alleges that he was insulted and intimidated in the
course of his arrest and detention and that some objects in his
possession upon the arrest were taken by police officers and not
returned. He further submits that the police prevented him from
entering his apartment when he returned to Ulmen and that he was forced
to leave his apartment in Ulmen and the region of Ulmen.
He invokes Articles 3, 5, 8 of the Convention, Article 1 of
Protocol No. 1 and Articles 1 and 2 of Protocol No. 4.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 December 1993 and registered
on 9 November 1994.
On 22 February 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on 27 April
1995. The applicant's observations in reply were received on 22 June
1995.
THE LAW
1. The applicant complains that his arrest in the evening of
4 July 1991 and detention until the morning of 5 July 1991 constituted
an unlawful deprivation of liberty.
The applicant's submissions in this respect raise an issue under
Article 5 para. 1 (Art. 5-1) of the Convention which, so far as
relevant, provides as follows:
"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:
...
c. the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an offence
or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
..."
a. The Government consider that the applicant failed to exhaust, as
required under Article 26 (Art. 26) of the Convention, the remedies
available to him under German law.
The Government submit in particular that, as regards the question
whether his arrest should have taken place, the applicant could have
turned to the Investigating Judge at the District Court (Amtsgericht),
relying on an analogous or interpretative application of S. 98 para. 2
of the Code of Criminal Procedure.
Moreover, the Government maintain that the applicant could have
applied to the competent Court of Appeal under S. 23 para. 1 of the
Introductory Act to the Courts Organisation Act. The continuing
interest in having the question of the lawfulness of his detention
determined in the context of these remedies could, in accordance with
the relevant case-law of the Federal Constitutional Court, be justified
in cases of a danger of repetition, arbitrariness or discriminatory
effects calling for rehabilitation. The Government state that they are
not able to make a definite prognosis as to whether, in the context of
the above two possibilities, the applicant could have obtained a
subsequent determination of the unlawfulness of the measures taken
against him. However, they consider that these remedies do not from
the outset appear void of prospects of success. Moreover, these
remedies were no alternatives or equivalents to the proceedings pursued
by the applicant in order to enforce criminal proceedings against the
police officers and the public prosecutors. In this context, the
Government observe that the Convention does not grant a right to
enforce criminal proceedings against third persons.
The applicant objects to the Government's views.
According to Article 26 (Art. 26) of the Convention, the
Commission may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on
which the final decision was taken.
In the present case, the applicant attempted to enforce criminal
proceedings against the officials involved in his arrest and detention.
The question arises whether the request of criminal prosecution
measures against the public officials involved in his arrest and
detention, and the ensuing request for a court decision ordering their
prosecution, constitutes, in respect of the applicant's complaint of
a violation of Article 5 para. 1 (Art. 5-1) of the Convention, an
effective remedy under German law which suffices for the purposes of
Article 26 (Art. 26).
The Commission recalls that the rule of exhaustion of domestic
remedies dispenses the States from answering before an international
body for their acts before they have had an opportunity to put matters
right through their own legal system. However, international law, to
which Article 26 (art. 26) makes express reference, demands solely
recourse to such remedies as are both available to the persons
concerned and sufficient to provide for redress (cf. Eur. Court H.R.,
De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12,
p. 29, para. 50, and p. 33, para. 60).
The Commission finds that, following the criminal charges brought
by the applicant against in particular the police officers involved in
his arrest and his ensuing detention, the German prosecuting
authorities and the Court of Appeal had to consider the question of the
lawfulness of the police measures concerned in order to determine
whether there was a suspicion that the police officers had committed
the criminal offence of unlawful deprivation of liberty. In the
proceedings for a court decision ordering the prosecution, the Court
of Appeal, in its decisions of 21 May 1992 and 30 November 1993,
examined in detail whether the conditions under German law for
arresting the applicant on a suspicion of fraud had been met. The
Court of Appeal, in its decision of 30 November 1993, also considered
that the applicant's detention had exceeded the permissible period of
12 hours, pursuant to the relevant provision of the Code of Criminal
Procedure.
The Commission, assuming that the applicant could have in
principle availed himself of further remedies as indicated by the
Government, considers that the proceedings for the enforcement of
public prosecution pursued by him constituted, having regard to the
Court of Appeal's decisions, an effective and sufficient remedy under
German law with regard to the complaint of unlawful deprivation of
liberty which he now raises before the Commission under Article 5
para. 1 (Art. 5-1) of the Convention.
The condition under Article 26 (Art. 26) of the Convention that
domestic remedies must be exhausted has, therefore, been met.
b. The Government further maintain that the applicant's detention
was justified under Article 5 para. 1 (c) (Art. 5-1-c) of the
Convention.
The Government submit in particular that, at the time of the
applicant's arrest, there was a strong suspicion that the applicant had
attempted fraud to the disadvantage of his landlord and that he was
about to abscond, together with his family. Moreover, the applicant's
place of residence could not be established in Ulmen.
The Government further explain that the applicant's arrest and
detention were based on SS. 127 and 163 b of the Code of Criminal
Procedure. Even if his apprehension had first solely been effected for
the purposes of S. 163 b of the Code of Criminal Procedure, there had
also been the suspicion against the applicant that he had committed a
criminal offence and a risk of his absconding. The results of the
police investigations regarding the applicant's address and the other
criminal proceedings pending against him strengthened this suspicion.
Only after the telephone conversation with the competent Hanau Public
Prosecutor's Office in the morning of 5 July 1991 to the effect that
no arrest warrant against the applicant would be requested, were the
conditions for his detention, for reasons of proportionality, no longer
fulfilled. Finally, according to the Government, the period of the
applicant's detention had to be seen not only under S. 163 c para. 3
of the Code of Criminal Procedure but in the wider context of S. 127
paras. 1 and 2 and S. 128 of the Code of Criminal Procedure.
The applicant submits that there had been no reasonable suspicion
against him of having committed a criminal offence, as the mere fact
of outstanding rent could not be regarded as fraud. Moreover, he had
not attempted to abscond. In any event, he should have been released
after his identity had been established, and his continued detention
had not been justified.
The Commission considers that this issue raises questions of fact
and law which can only be determined by an examination of the merits.
It follows that this complaint cannot be declared inadmissible as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for declaring it
inadmissible have been established.
2. The Commission, after considering the remainder of the
applicant's submissions, finds that, even assuming compliance with
Article 26 (Art. 26), there is no appearance of a violation of his
rights under Articles 3 and 8 (Art. 3, 8) of the Convention, Article
1 of Protocol No. 1 and Articles 1 and 2 of Protocol No. 4
(P1-1, P4-1, P4-2). 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, by a majority,
DECLARES ADMISSIBLE the applicant's complaint about his arrest
and his subsequent detention at the Cochem-Zell Police Station,
without prejudging the merits;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy