AS TO THE ADMISSIBILITY OF
Application No. 16117/90
by N.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 2 September 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
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 13 December 1989
by N. against the Federal Republic of Germany and registered
on 1 February 1990 under file No. 16117/90;
Having regard to the report provided for in Rule 47 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 1920, is a German national. When
lodging his application he was detained at S. Prison. Before
the Commission he is represented by Ms. M. Kunisch, a lawyer
practising in Munich.
On 28 February 1967 the Munich I Regional Court (Landgericht)
convicted the applicant of murder and sentenced him to life
imprisonment.
On 6 April 1983 the Regensburg Regional Court suspended the
remainder of the applicant's sentence on probation. The period of
probation amounted to five years. For this period the applicant was
given a probation officer (Bewährungshelfer). Furthermore, he was
ordered to take residence in a particular residential home, not to
leave his place of residence without prior consent of his probation
officer, and to comply with the regulations of the above residential
home.
On 7 March 1984 the Regensburg Regional Court revoked the
suspension of the applicant's sentence to life imprisonment. The
Regional Court found in particular that since the end of May 1983 the
applicant had been drinking alcohol, and had stayed in summer 1983 and
in winter 1984 in a hospital for treatment of his alcohol addiction.
He then refused any further therapy. The management of the
residential home refused to keep him on the ground that he had
threatened to run amuck. He also threatened and molested other
persons, when he was drunk. The Regional Court assumed that the
positive prognosis for the applicant's future behaviour outside prison
at the time of the decision to suspend the remainder of his sentence
had been proven to be wrong. The Regional Court referred to the
applicant's alcohol addiction and the serious and continuous
violations of the home regulations. It noted that the applicant could
not live on his own. Having regard to his conduct after release, no
other residential home would be prepared to accommodate him. In these
proceedings the applicant was represented by counsel.
Subsequently the applicant repeatedly requested that his
sentence be again suspended on probation, but to no avail.
On 26 April 1989 the Regensburg Regional Court dismissed the
applicant's request of January 1989 that his sentence be suspended.
The Regional Court, referring in particular to a report of the prison,
noted that the applicant had no social ties outside prison, and that
his alcohol problems had not been solved, as no place for an alcohol
therapy could be found. The attempts of the applicant's counsel to
find such a place had also failed. Still in June 1988 an institution
for such therapy, which the applicant had consulted on the initiative
of his counsel, had refused him on the ground that he had no reasonable
view of his illness. For these reasons, the Regional Court, referring
to S. 57a para. 1 of the Penal Code (Strafgesetzbuch), considered
that for the time being it could not be put to a test whether the
applicant committed further criminal offences outside prison. In
these and the following proceedings the applicant was represented by
counsel.
On 31 May 1989 the Nuremberg Court of Appeal (Oberlandes-
gericht) dismissed the applicant's appeal (Beschwerde). The Court of
Appeal considered in particular that if there were, as in the present
case, the slightest risk that the sentenced person committed a further
serious crime in connection with his alcohol addiction, his sentence
could not be suspended. As regards the applicant the existence of
such a risk had to be assumed all the more so, as in the course of the
previous suspension of his sentence he had again drunk alcohol.
On 27 November 1989 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 that the inferior
court had shown in detail that the applicant continued to be dangerous
due to his alcohol addiction. However, in future the competent courts
would have to consider the applicant's right to resocialisation, i.e.
his right to have at least a chance to be at liberty again. Having
regard to the applicant's age and the increasing weight to be given to
his right to liberty, the courts would have to apply stricter
standards as to the establishment of the relevant facts, in particular
in respect of the applicant's alcoholism. The appointment of an
experienced expert or a therapy in hospital, as proposed by the
applicant's counsel, might then suggest themselves.
COMPLAINTS
1. The applicant complains under Article 5 para. 1 of the
Convention about the Regensburg Regional Court's decision of 7 March
1984 revoking the suspension of his sentence to life imprisonment, and
also of the proceedings concerned. He considers that since that date
he has been unlawfully detained.
2. The applicant also complains under Article 5 para. 1 of the
Convention of the Regensburg Regional Court's decision of 26 April
1989 not to suspend the remainder of his sentence to life imprisonment
under S. 57a of the Penal Code.
THE LAW
1. The applicant complains under Article 5 para. 1 (Art. 5-1) of
the Convention about the Regensburg Regional Court's decision of 7
March 1984 by which the suspension of his sentence to life
imprisonment was revoked.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a
violation of this provision as, under Article 26 (Art. 26) of the
Convention, it may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law.
In the present case the applicant failed to show that he
lodged an appeal with the Court of Appeal under the relevant provision
of the German Code of Criminal Procedure, or that he filed a
constitutional complaint with the Federal Constitutional Court in this
respect. He cannot, therefore, be considered to have exhausted the
remedies available to him under German law. Moreover, an examination
of the case does not disclose the existence of any special
circumstances which might have absolved the applicant, according to
the generally recognised rules of international law, from exhausting
the domestic remedies at his disposal.
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and this part of
his application must be rejected under Article 27 para. 3 (Art. 27-3)
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. 57a of the Penal Code to have his life sentence 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 Munich I Regional Court on 28 February 1967 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.
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, p. 21 et seq., paras. 38-53; No. 14289/88, Dec. 14.3.89).
In the present case, the Commission notes that the German
courts, in detailed decisions, refused the applicant's conditional
release under S. 57a in connection with S. 57 para. 1 of the Penal
Code, on the ground that there was still a risk that he would commit
criminal offences outside prison, in particular due to his alcoholism.
The Commission finds that these decisions were taken in
accordance with the procedure prescribed by German law. The applicant,
who mainly challenges the decision of 7 March 1984, does not give any
indication that the decisions of 1989 were arbitrary. In particular
he does not deny the facts underlying these decisions.
The Commission concludes that, 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 unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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