FIFTH SECTION
DECISION
Application no. 70904/10
Andreas Josef KOZIOL
against Germany
The European Court of Human Rights (Fifth Section), sitting on 17 September 2013 as a Committee composed of:
Boštjan M. Zupančič, President,
Angelika Nußberger,
Helena Jäderblom, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 30 November 2010,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Andreas Josef Koziol, is a German national, who was born in 1963. When lodging his application, he was detained in Werl Prison. He is currently living in Gliwice, Poland. He was initially represented before the Court by Mr O. Heuvens and then by Mr G. Fischer and Mr R. Inman, and is currently represented by Mr S. Braßel, lawyers practising in Düsseldorf.
2. The German Government (“the Government”) were represented by their Agent, Mr Hans-Jörg Behrens, Ministerialrat, of the Federal Ministry of Justice.
3. Relying on the Court’s judgment in the case of M. v. Germany (M. v. Germany, no. 19359/04, ECHR 2009), the applicant mainly complained that his preventive detention, which had been imposed retrospectively, under a legal provision which entered into force after he had committed his offences and after he had been convicted, breached Article 5 § 1 and Article 7 § 1 of the Convention.
4. The application was communicated to the respondent Government and they were invited to submit observations on the admissibility and merits of the applicant’s complaints under Article 5 and 7 of the Convention.
THE LAW
A. The applicant’s complaints under Articles 5 and 7 of the Convention
5. On 23 May 2013, following unsuccessful friendly settlement negotiations, the Court received the following declaration from the Government:
“Unilateral Declaration
1. The friendly settlement proposed by the Court failed because it was rejected by the Applicant.
2. By way of unilateral declaration, the Federal Government would like to recognise that the Applicant’s rights under Article 5 and Article 7 of the Convention were violated as a result of him being placed in retrospectively ordered preventive detention.
3. The Federal Government is prepared to pay compensation in the amount of € 12,000 to the Applicant if the Court, on condition of payment of the amount, strikes the Application out of the list of cases pursuant to Article 37 (1) c) of the Convention. This would satisfy any and all claims, costs and expenses on the part of the Applicant due to placement in preventive detention in violation of the Convention.
The amount shall be payable within three months of the Court’s decision to strike the case out of its list becoming final. If payment is not made within the prescribed period, simple interest shall be payable at a rate equal to the amount of the marginal lending rate (Spitzenrefinanzierungssatz) of the European Central Bank during the default period plus three percentage points.”
6. On 24 June 2013 the Court received a letter from the applicant’s counsel indicating that the applicant eventually agreed with the terms of the Government’s declaration dated 22 May 2013 and wished that his case be struck out of the list of cases.
7. The Court takes note of the unilateral declaration of the respondant Government which was afterwards explicitly accepted by the applicant. The Court is satisfied that this settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application. In view of the above, it is appropriate to strike the case out of the list.
B. The remainder of the applicant’s complaints
8. The applicant further complained that his preventive detention breached the prohibition on double punishment under Article 4 of Prot. no. 7 to the Convention. He also submitted under Article 6 and Article 13 of the Convention that his right to a fair trial within a reasonable time was violated and that he did not have at his disposal an effective remedy to complain about his on-going detention.
9. The Court has examined the remainder of the applicant’s complaints as submitted by him. However, having regard to all material in its possession, the Court finds that, even assuming their compatibility ratione personae with the provisions of the Convention and the exhaustion of domestic remedies in all respects, these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that the remainder of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the applicant’s complaints under Article 5 § 1 and Article 7 of the Convention;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it relates to the above complaints;
Declares the remainder of the application inadmissible.
Stephen PhillipsBoštjan M. Zupančič
Deputy RegistrarPresident
Full & Egal Universal Law Academy