Information Note on the Court’s case-law No. 161
March 2013
Ostendorf v. Germany - 15598/08
Judgment 7.3.2013 [Section V]
Article 5
Article 5-1-b
Secure fulfilment of obligation prescribed by law
Four hours’ detention of football supporter by police to prevent him taking part in a brawl: no violation
Facts – The applicant travelled from Bremen to Frankfurt-am-Main with a group of football supporters to attend a football match. Acting on information received from the Bremen police that the supporters were preparing for violence and that the applicant was their leader, the Frankfurt police carried out a search, seized a mouth-protection device and several pairs of sand-filled gloves and placed the group under surveillance. They also ordered the applicant to remain with the group and arrested him when he failed to do so. His mobile phone was seized and he was kept in police custody for four hours before being released an hour after the match ended.
A complaint by the applicant to the Frankfurt police of unlawful detention was dismissed and a subsequent action against the land of Hesse also failed after the administrative courts held, in reliance on the Hessian Public Security and Order Act that the applicant’s detention had been necessary to prevent the imminent commission of a violent offence.
Law – Article 5 § 1: Despite the relatively short duration of his detention, the applicant had been deprived of his liberty within the meaning of Article 5 § 1. The Frankfurt police had based their assessment that he was preparing to commit violent offences on a number of factual elements: the information they had received from the Bremen police; the devices typically associated with hooligan brawls that had been found on other members of the group; the applicant’s contact with a hooligan from Frankfurt; and, lastly, his failure to comply with the order to remain with the group. The police had therefore had sufficient information to assume that the applicant was planning a hooligan brawl during which concrete and specific offences, namely assaults and breaches of the peace, would be committed. His detention could thus be classified as having been effected “to prevent his committing an offence” for the purpose of Article 5 § 1 (c).
Police experience showed that hooligan brawls were usually arranged in advance, but did not take place inside or near the football stadium. Accordingly, seizing the applicant’s telephone and separating him from the group would not have sufficed to prevent the brawl. However, in order to comply with Article 5 § 1 (c), detention also had to be “effected for the purpose of bringing [the suspect] before the competent legal authority”. The legal basis of the applicant’s detention, the Hessian Public Security and Order Act, was aimed exclusively at preventing, not prosecuting, offences and was not aimed at bringing the applicant before a judge in a criminal trial. Article 5 § 1 (c) could not be interpreted also to cover preventive police custody in the circumstances of the applicant’s case as this could not be reconciled with Article 5 § 1 (c) as a whole, which was to be read in conjunction with Article 5 § 3. In particular, the term “trial” in Article 5 § 3 did not refer to a judicial decision on the lawfulness of preventive police custody but only to a criminal trial. Nor was the Court convinced by the Government’s argument that the State’s obligation under Articles 2 and 3 to protect the public from offences should be taken into account in the interpretation of Article 5 § 1 as, while the Convention required States to take reasonable steps within the scope of their powers to prevent ill-treatment, it did not permit them to protect individuals from the criminal acts of others by measures which were themselves in breach of the Convention. The State’s positive obligations under the Convention did not, therefore, as such warrant a different or wider interpretation of the permissible grounds for deprivation of liberty that were exhaustively listed in Article 5 § 1. The applicant’s detention could not, therefore, be justified under Article 5 § 1 (c).
As to possible justification under Article 5 § 1 (b) as detention “in order to secure the fulfilment of any obligation prescribed by law”, the Court was satisfied that the obligation imposed on the applicant was sufficiently specific and concrete to comply with the requirements of its case-law. In order to ensure that individuals were not subjected to arbitrary detention in such circumstances, it was necessary to ensure, prior to concluding that the obligation at issue had not been satisfied, that those concerned had been made aware of the specific act they were required to refrain from and had shown themselves to be unwilling to comply. In the instant case, the applicant had been made aware that he was required to refrain from arranging a brawl between opposing groups of hooligans and, prior to his arrest, had been ordered to remain with the group of travelling supporters or face arrest. By seeking to evade police surveillance and entering into contact with another hooligan he had shown that he was not willing to comply with his obligation to keep the peace. His detention had therefore served to fulfil the obligation of preventing him from arranging and taking part in a brawl and had not had a punitive character.
In the case of a duty not to commit a specific offence at a certain time and place – as opposed to a duty to perform a specific act – the obligation had to be considered as having been “fulfilled” for the purposes of Article 5 § 1 (b) at the latest when it ceased to exist owing to the lapse of the time by which the offence was due to have taken place. It was not excluded that the person concerned might be able to show prior to the moment the offence was due to take place that he or she no longer intended to commit the offence, in which case his or her detention would have to be terminated forthwith. However, there was nothing to suggest that during his time in custody the applicant had indicated any willingness to comply with his duty to keep the peace. His obligation had therefore been fulfilled for the purposes of Article 5 § 1 (b) when it ceased to exist once the match was over and the other hooligans had been dispersed, and it was at that point that he had been released. His detention for four hours had thus been proportionate to the aim of securing the immediate fulfilment of his obligation, in the public interest, not to hinder the peaceful running of a sports event involving a large number of spectators and was justified under Article 5 § 1 (b). It had moreover been lawful under the Hessian Public Security and Order Act.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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