EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 25629/94
H.F. K-F.
against
Germany
REPORT OF THE COMMISSION
(adopted on 10 September 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-37) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16-31). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 32-37). . . . . . . . . . . . . . . . . . .4
III. OPINION OF THE COMMISSION
(paras. 38-67) . . . . . . . . . . . . . . . . . . . . .6
A. Complaint declared admissible
(para. 38). . . . . . . . . . . . . . . . . . . . .6
B. Point at issue
(para. 39). . . . . . . . . . . . . . . . . . . . .6
C. As regards Article 5 para. 1 of the Convention
(paras. 40-66). . . . . . . . . . . . . . . . . . .6
CONCLUSION
(para. 67). . . . . . . . . . . . . . . . . . . . 10
DISSENTING OPINION OF MRS. LIDDY AND MM. PELLONPÄÄ,
BUSUTTIL, ROZAKIS, BRATZA, RESS . . . . . . . . . . . . . . 11
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 13
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a German national, born in 1936 and resident in
Karlsruhe.
3. The application is directed against the Federal Republic of
Germany. The respondent Government were represented by their Agent
Mr. J. Meyer-Ladewig, Ministerialdirigent, of the Federal Ministry of
Justice.
4. The admissible complaint concerns the applicant's arrest and his
subsequent detention at the Cochem-Zell Police Station. The applicant
invokes Article 5 of the Convention.
B. The proceedings
5. The application was introduced on 14 December 1993 and registered
on 9 november 1994.
6. On 22 February 1995 the Commission (First Chamber) decided,
pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give
notice of the application to the respondent Government and to invite
the parties to submit written observations on its admissibility and
merits.
7. The Government's observations were submitted on 27 April 1995.
The applicant's submissions in reply were received on 22 June 1995.
8. On 16 January 1996 the Commission declared admissible the
applicant's complaint under Article 5 para. 1 of the Convention. It
declared inadmissible the remainder of the application.
9. The text of the Commission's decision on admissibility was sent
to the parties on 29 January 1996 and they were invited to submit such
further information or observations on the merits as they wished.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission (First
Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
12. The text of this Report was adopted on 10 September 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is annexed hereto.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. 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.
17. 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 that they 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.
18. Upon their arrival at Ulmen, the police officers, having
consulted the competent public prosecutor (Staatsanwalt), inquired
about the further address of the applicant and his family in Bad Soden,
which turned out to be a mere postal address. The Bad Soden police
further notified that the applicant had already been subject to
criminal proceedings on the suspicion of fraud.
19. At 9.45 p.m., following the initial inquiries, Police Officer
Laux arrested the applicant and his wife on the suspicion of fraud.
The Police Officer 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. A police report of 11.30 p.m.
referred to a strong suspicion of rent fraud and a danger of their
absconding. The examination of the applicant and his wife was
concluded on 5 July 1991 at 0.45 a.m.
20. 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
were conducted against him by the Hanau Public Prosecutor's Office
(Staatsanwaltschaft).
21. In the morning of 5 July 1991 (between 8.30 and 9.40 a.m.),
Police Officer Blang again questioned the applicant and his wife.
Mrs. S. was heard at 9.05 a.m.
22. In a telephone conversation at about 9.25 a.m., the competent
Public Prosecutor at the Hanau Public Prosecutor's Office informed
Police Officer Berg of the Cochem Police about the criminal proceedings
conducted against the applicant in Hanau. He stated that there was no
intention to request an arrest warrant against the applicant.
23. At 10.30, the applicant and his wife were released. They were
brought back to Ulmen.
24. In September 1992 the Koblenz Public Prosecutor's Office
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.
25. 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.
26. On 2 January 1992 the Koblenz Public Prosecutor's Office
discontinued investigations against the Police Officer Laux and three
other Police Officers, who had been involved in the arrest, and also
two public prosecutors. The Office considered that, having regard to
the charges raised by Mrs. S. and the situation found by the Police
Officers in Ulmen in the evening of 4 July 1991, there had been a
reasonable suspicion of fraud and a risk of their absconding.
27. 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 Court finally stated that
it was not required to decide whether or not their continued detention
until the next morning had been necessary as at least the mens rea
could not be proven with the required certainty to justify the
conviction of the Police Officers for unlawful deprivation of liberty.
28. Subsequently the applicant complained to the Public Prosecutor's
Office that no formal decision had been taken upon his charges against
Police Officer Blang of the Cochem-Zell Police Station.
29. On 28 December 1992 the Public Prosecutor's Office also
discontinued these investigation proceedings for insult, unlawful
deprivation of liberty and coercion.
30. On 30 November 1993 the Koblenz Court of Appeal dismissed the
applicant's request for a judicial decision ordering the prosecution
of Police Officer Blang. 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 Police Officer
Blang had been aware that the applicant's detention had already
exceeded the permissible period.
31. 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
32. 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.
33. 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.
34. 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.
35. 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 (S. 163 c
para. 1), and it may not exceed a maximum period of 12 hours (S. 163 c
para. 3).
36. 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.
37. 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.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
38. The Commission has declared admissible the applicant's complaint
about his arrest and his subsequent detention at the Cochem-Zell Police
Station.
B. Point at issue
39. Accordingly, the point at issue is whether there has been a
violation of Article 5 para. 1 (Art. 5-1) of the Convention.
C. As regards Article 5 para. 1 (Art. 5-1) of the Convention
40. The applicant relies on 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;
..."
41. The applicant complains that he was unlawfully arrested in the
evening of 4 July 1991, and detained until the morning of 5 July 1991,
at the Cochem-Zell Police Station. He considers that a minor tenancy
debt had been at issue which 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.
42. The Government submit 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.
43. 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 that there was 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.
44. The Government therefore maintain that the applicant's detention
was justified under Article 5 para. 1 (c) (Art. 5-1-c) of the
Convention.
45. Article 5 para. 1 (c) (Art. 5-1-c) permits the lawful arrest and
detention of a person effected for the purpose of bringing him before
the competent legal authority on reasonable suspicion of having
committed an offence.
46. The Commission notes that the applicant was arrested on charges
of fraud brought against him by his landlady Mrs. S. Thus, the Cochem-
Zell Police Station had been 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. When arresting the applicant at 9.45 p.m.,
following initial inquiries, the police officers assumed a risk of the
applicant's absconding, as it appeared that the applicant and his
family had attempted to leave by car. The applicant was subsequently
brought to the Cochem-Zell Police Station for verification of his
personal data and further questioning. The Public Prosecutor's Office
and the Koblenz Court of Appeal, in the context of the criminal
proceedings against various officials involved in the applicant's
arrest, confirmed that there had been a reasonable suspicion that the
applicant had committed an attempt of fraud and that there was a risk
of his absconding.
47. Accordingly, the arrest and subsequent detention of the applicant
were based on a reasonable suspicion of commission of an offence within
the meaning of Article 5 para. 1 (c) (Art. 5-1-c).
48. As to the purpose of the applicant's arrest and detention, namely
to bring the person concerned before the competent legal authority, the
Commission recalls that the existence of such a purpose must be
considered independently of its achievement and subparagraph (c) of
Article 5 para. 1 (Art. 5-1-c) does not presuppose that the police
should have obtained sufficient evidence to bring charges (cf. Eur.
Court HR., Brogan and Others v. the United Kingdom judgment of
29 November 1988, Series A no. 145-B, p. 29, para. 53). In the present
case, there is no reason to believe that the police investigation was
not in good faith or that the applicant's arrest and detention, having
been effected after consultation with a public prosecutor, was not
intended to further that investigation by way of establishing the
applicant's personal data and inquiring into the charges against him.
Thus, the applicant was again questioned in the morning of 5 July 1991
and so was his landlady. Had it been possible to confirm the suspicion
of attempted rent fraud, the applicant would have been, as can be
assumed, brought before the competent legal authority.
49. The applicant's arrest and detention must therefore be taken to
have been effected for the purpose specified in Article 5 para. 1 (c)
(Art. 5-1-c). In these circumstances, the Commission finds that the
applicant's arrest and detention in principle fall within the ambit of
Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.
50. The next issue to be determined is whether the applicant's arrest
and detention was "lawful", including whether it complied with "a
procedure prescribed by law".
51. The Commission recalls that the Convention here refers back
essentially to national law and lays down the obligation to conform to
the substantive and procedural rules thereof, but it requires in
addition that any deprivation of liberty should be consistent with the
purpose of Article 5 (Art. 5) , namely to protect individuals from
arbitrariness (cf. Eur. Court HR., Winterwerp v. the Netherlands
judgment of 24 October 1979, Series A no. 33, p. 17, para. 39, and p.
18, para. 40; Quinn v. France judgment of 22 March 1995, Series A no.
311, pp. 18-19, para. 47).
52. The applicant's arrest and detention were effected on the basis
of S. 127 and S. 163 b of the German Code of Criminal Procedure which
allow for the arrest and provisional detention of a person apprehended
in committing a criminal offence, if there is a risk of absconding, for
the purpose of establishing his personal data. The Commission, having
regard to the material before it, finds that the deprivation of the
applicant's liberty were based on these provisions (cf., mutatis
mutandis, Mc Veigh, O'Neill, Evans v. the United Kingdom, Comm. Report
18.3.81, D.R. 25 pp. 37-43, paras. 168-196).
53. The Commission observes that the Koblenz Court of Appeal, in its
decision of 30 November 1993 regarding Police Officer Blang, addressed
the procedural defect regarding the length of the applicant's
detention.
54. The Commission notes that the applicant was arrested on
4 July 1991 at 9.45 p.m. at Ulmen and then brought to the Cochem-Zell
Police Office, where he arrived at 11 p.m. In the course of the night,
investigations were conducted in particular as to his place of
residence. The police authorities also received information about
other investigation proceedings pending against the applicant, who was
questioned again in the early morning of 5 July 1991, between 8.30 and
9.40 a.m. The applicant was released on 5 July 1991 at 10.30 a.m. and
brought back to Ulmen.
55. The Koblenz Court of Appeal, in the said decision, considered
that the applicant's detention had exceeded the 12-hours'-period under
S. 163 c of the Code of Criminal Procedure.
56. The Government maintain that the applicant's detention was not
solely warranted for the purposes of establishing his identity,
pursuant to SS. 163 b of the Code of Criminal Procedure. Rather,
following the information about the suspicion of other fraud offenses
committed by the applicant, which could have possibly justified an
arrest warrant, the applicant's detention was permitted under S. 127
paras. 1 and 2. However, in such cases, S. 128 of the Code of Criminal
Procedure provided that the detainee had to be brought before the
competent judge at the latest on the day following his arrest. The
applicant had been released before the expiry of this time-limit.
57. According to the applicant, following the telephone conversation
with the Hanau Public Prosecutor's Office at 9.25 a.m., is was clear
that no request for an arrest warrant would be filed.
58. The Commission, having regard to the circumstances of the
applicant's arrest and the course of the further investigations pending
his detention, is not persuaded by the Government's argument which is
at variance with the findings of the Koblenz Court of Appeal as to the
legal basis of the applicant's arrest and detention. In particular, the
Government have not shown that the strict prerequisites for an arrest
and detention under S. 127 para. 2 of the Code of Criminal Procedure
had been met.
59. However, the Commission considers that in a case of deprivation
of liberty, some delay in the release of a detainee may be
understandable (cf. Eur. Court HR., Quinn judgment, loc. cit., p. 17,
para. 42), and would not necessarily entail a breach of the right to
liberty within the meaning of Article 5 para. 1 (Art. 5-1) of the
Convention. In this respect, the Commission is of the opinion that
practical reasons may justify a modest delay in releasing a detainee.
60. In the present case, the delay in the applicant's release
following his lawful detention lasted from 9.45 until 10.30 a.m. In
accordance with his wish, the applicant was then driven back by the
police from Cochem to Ulmen.
61. The Commission notes that the police measures regarding the
applicant's case in the morning of 5 July 1991, namely the applicant's
questioning, the questioning of Mrs. S. and the telephone conversation
with the Hanau Public Prosecutor's Office had all ended before
9.45 a.m., when the permissible period under S. 163 c of the Code of
Criminal Procedure expired.
62. The findings of the Koblenz Court of Appeal, in its decision of
30 November 1993, suggest that the Police Officer in charge had not
been aware that the applicant's detention had already exceeded the
permissible period. The Koblenz Court of Appeal therefore refused to
order the criminal prosecution of the Police Officer concerned.
63. The Commission recalls that, under the Convention system, it is
in principle not the task of the Convention organs to substitute their
own assessment of the facts for that of the domestic courts, and, as
a general rule, it is for these courts to assess the evidence before
them (Eur. Court HR., Klaas v. Germany judgment of 22 September 1993,
Series A no. 269, p. 17, para. 29).
64. The Commission considers, that, in the course of the proceedings
before it, no material has been produced which could call into question
the assessment of facts by the Koblenz Court of Appeal.
65. The Commission, having regard to all circumstances, finds no
cogent elements to show that the rather short delay of 45 minutes in
releasing the applicant deprived him of his liberty in an arbitrary
manner, contrary to the object and purpose of Article 5 para. 1
(Art. 5-1) of the Convention.
66. Accordingly, the applicant's arrest and detention between the
evening of 4 July and morning of 5 July 1991, including the period
between 9.45 and 10.30 a.m., were not incompatible with Article 5
para. 1 (c) (Art. 5-1-c) of the Convention.
CONCLUSION
67. The Commission concludes, by 7 votes to 6, that in the present
case there has been no violation of Article 5 para. 1 (Art. 5-1) of the
Convention.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
(Or. English)
DISSENTING OPINION OF MRS. LIDDY AND MM. PELLONPÄÄ,
BUSUTTIL, ROZAKIS, BRATZA, RESS.
To our regret, we cannot follow the reasoning or conclusion of
the majority of the Commission in this case. We recognise that the
period of delay in effecting the applicant's release was short.
However, having regard to the fundamental importance of the right to
liberty in a democratic society grounded on the rule of law, a
scrupulous supervision by the organs of the Convention is called for
wherever there is a deprivation of liberty. We cannot accept that a
short period of detention which is unlawful as a matter of domestic law
can be disregarded either on the grounds that it falls within a certain
margin of appreciation afforded to member States or by the application
of some "de minimis" principle. The maxim "de minimis non curat
praetor" is not part of the legal framework of the Convention and
certainly has no place in the context of the unlawful deprivation of
liberty. To delay the release of a person at a police station for even
a brief period beyond that permitted by domestic law, in circumstances
where there exist no compelling practical or technical reasons for the
delay, raises in our view an issue under Article 5 of the Convention.
On the material before us, we see no reason for the delay in the
applicant's release following his questioning in the morning of
5 July 1991, the questioning of Mrs. S. and the telephone conversation
with the Hanau Public Prosecutor's Office, all of which had ended
before 9.45 a.m., when the period permitted by S. 163 c of the Code of
Criminal Procedure expired. In this regard, we note that the Koblenz
Court of Appeal, in its first decision of 21 May 1992, raised the
question whether the applicant's continued detention until the next
morning had been necessary at all.
It is true that in certain circumstances, some delay in the
release of a detainee may be understandable (cf. Eur. Court HR., Quinn
judgment, loc. cit., p. 17, para. 42), as, for example, where such
delay results from the practical exigencies of the functioning of the
courts (Quinn v. France, Comm. Report 22.10.93, para. 41, Eur. Court
HR., Series A no. 311, pp. 23 et seq.). However, the respondent
Government have not advanced any plausible explanation as to why the
applicant could not have been released at 9.45 a.m. at the latest, but
had to be kept until 10.30 a.m. We note that, under the relevant
provisions of the Code of Criminal Procedure, the applicant's release
did not require any formal decision or the completion of any particular
formalities (a contrario, Quinn judgment, loc. cit.). Further, there
is nothing to suggest any tacit agreement on the part of the applicant
to remain in the police station until arrangements could be made to
drive him back from Cochem to Ulmen. Accordingly, the delay in
effecting his release cannot be attributed to the applicant himself.
The majority of the Commission seek to justify the prolonged
detention of the applicant by reference to the court decisions refusing
to order the prosecution of the officers concerned and refer to the
finding of the Koblenz Court of Appeal that there was nothing to
indicate that Police Officer Blang had been aware that the permissible
period of detention had been exceeded. In concluding that there has
been a violation of Article 5 of the Convention, we do not call into
question these decisions of the national authorities. However, the
question whether there was criminal liability as a matter of domestic
law is quite distinct from the question whether the detention complied
with the requirement of lawfulness in the Convention. Article 5
concerns the lawfulness of the detention and not the question whether
persons responsible for the unlawful detention are criminally liable.
In these circumstances, we consider that the applicant's
continued detention on 5 July 1991 between 9.45 and 10.30 a.m. was not
"lawful" and not "in accordance with a procedure prescribed by law"
within the meaning of Article 5 para. 1 (c) of the Convention.
Full & Egal Universal Law Academy