ITEMID: 001-96389
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF M. v. GERMANY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-1;Violation of Art. 7-1;Non-pecuniary damage - award
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1957 and is currently in Schwalmstadt Prison.
7. Since the applicant attained the age of criminal responsibility he has been convicted at least seven times and has spent only a couple of weeks outside prison.
8. Between 1971 and 1975 he was repeatedly convicted of theft committed jointly and burglary. He escaped from prison four times.
9. On 5 October 1977 the Kassel Regional Court, applying the criminal law relating to young offenders, convicted the applicant of attempted murder, robbery committed jointly with others, dangerous assault and blackmail and sentenced him to six years’ imprisonment. It found that approximately one week after his release from prison the applicant, together with an accomplice, had injured and robbed an acquaintance of his and had forced the victim, a homosexual, to sign a borrower’s note. Moreover, he had injured and attempted to kill his victim one day later when he learned that the latter had reported the robbery to the police. Having regard to a report submitted by expert D., the court found that the applicant suffered from a pathological mental disorder, with the result that his criminal responsibility was diminished (Article 21 of the Criminal Code).
10. On 8 March 1979 the Wiesbaden Regional Court convicted the applicant of dangerous assault, sentenced him to one year and nine months’ imprisonment and ordered his subsequent placement in a psychiatric hospital under Article 63 of the Criminal Code (see paragraph 47 below). The applicant had injured a prison guard by throwing a heavy metal box at his head and stabbing him with a screwdriver after having been reprimanded. As confirmed by expert D., the applicant suffered from a serious pathological mental disorder, with the result that his criminal responsibility was diminished.
11. On 9 January 1981 the Marburg Regional Court, on appeal, convicted the applicant of assault of a disabled fellow prisoner following a discussion as to whether or not the cell window should remain open. Incorporating the sentence imposed by the judgment of the Wiesbaden Regional Court of 8 March 1979, it sentenced him to a cumulative sentence of two years and six months’ imprisonment. Moreover, it upheld the order for the applicant’s placement in a psychiatric hospital. In the proceedings, an expert found that there were no longer any signs that the applicant suffered from a pathological brain disorder.
12. On 17 November 1986 the Marburg Regional Court convicted the applicant of attempted murder and robbery and sentenced him to five years’ imprisonment. It further ordered his placement in preventive detention (Sicherungsverwahrung) under Article 66 § 1 of the Criminal Code (see paragraphs 49-50 below). It found that when the conditions of his detention in the psychiatric hospital where he had been detained since October 1984 had been relaxed, the applicant had on 26 July 1985 robbed and attempted to murder a woman who had volunteered to spend a day with him in a city away from the hospital. Having regard to the report of a neurological and psychiatric expert, W., the court found that the applicant still suffered from a serious mental disorder which could, however, no longer be qualified as pathological and did not have to be treated medically. He therefore had not acted with diminished criminal responsibility and the preconditions for his placement in a psychiatric hospital under Article 63 of the Criminal Code were no longer met. However, he had a strong propensity to commit offences which seriously damaged his victims’ physical integrity. It was to be expected that he would commit further spontaneous acts of violence and he was dangerous to the public. Therefore, his preventive detention was necessary.
13. Since 18 August 1991 the applicant, having served his full prison sentence, has been in preventive detention in Schwalmstadt Prison.
14. On 14 January 1992 the Gießen Regional Court refused to suspend on probation the applicant’s preventive detention and his placement in a psychiatric hospital. It relied on a report submitted by expert M.-I., who had concluded that the applicant was likely to commit offences as a result of his propensity to reoffend within the meaning of Article 66 of the Criminal Code, whereas it was not very probable that he would commit offences as a result of his psychiatric condition within the meaning of Article 63 of the Criminal Code.
15. On 26 October 1995 the applicant took advantage of a day release to abscond, but gave himself up to the police on 17 November 1995.
16. On 17 November 1998 the Marburg Regional Court refused to suspend on probation the applicant’s preventive detention and his placement in a psychiatric hospital, as it had previously done on 20 September 1994 and 13 November 1996. It took into consideration the fact that in the meantime the applicant, who at that time associated himself with skinheads, had assaulted and broken the nose of a fellow prisoner and had grossly insulted the governor of Schwalmstadt Prison.
17. On 10 April 2001 the Marburg Regional Court dismissed the applicant’s requests to suspend on probation his preventive detention as ordered by that court on 17 November 1986 and his placement in a psychiatric hospital as ordered by it on 9 January 1981. Applying Article 67e § 3 of the Criminal Code (see paragraph 56 below), it declared that no request for review of this decision would be admissible within a two-year period.
18. Having regard to the applicant’s previous convictions and his conduct in prison, the Regional Court found that it could not be expected that the applicant, if released, would not commit further serious offences (Article 67d § 2 of the Criminal Code; see paragraph 53 below). The court had heard evidence from the applicant, who was represented by officially appointed counsel, in person. It had further consulted Schwalmstadt Prison and the Marburg public prosecutor’s office, both of which had recommended not suspending on probation the orders for the applicant’s detention. It also agreed with the report submitted by an external expert in forensic psychiatry, K. The expert had taken the view that the applicant, who had a narcissistic personality and a total lack of empathy, but could not be regarded as suffering from a psychopathic disorder, needed to be observed for several years before it could be assumed that he was no longer dangerous to the public.
19. The Regional Court stated that it was ordering the applicant’s preventive detention also for the period after 8 September 2001, when (after a period during which the applicant had escaped from detention had been deducted) he would have served ten years in preventive detention. There were no constitutional obstacles to such a decision. According to the court, the applicant’s continued preventive detention was authorised by Article 67d § 3 of the Criminal Code as amended in 1998 (see paragraph 53 below). In section 1a(3) of the Introductory Act to the Criminal Code, as amended in 1998, the Article in question had been declared applicable also to prisoners whose preventive detention had been ordered prior to the change in the law (see paragraph 54 below). The Federal Constitutional Court had refused to admit a constitutional complaint in which the change in the law had indirectly been at issue. In view of the gravity of the applicant’s criminal past and possible future offences his continued preventive detention was not disproportionate.
20. As to the order for the applicant’s placement in a psychiatric hospital, his request was premature as he was neither currently detained nor about to be detained in a psychiatric hospital.
21. On 26 October 2001 the Frankfurt am Main Court of Appeal, amending the decision of the Marburg Regional Court in this respect, quashed the order of 9 January 1981 for the applicant’s placement in a psychiatric hospital. Upholding the remainder of the Regional Court’s decision, it decided not to suspend on probation the applicant’s preventive detention as ordered by the Marburg Regional Court’s judgment of 17 November 1986, and ordered his continued detention also after the expiry of ten years of detention on 8 September 2001. It confirmed that a request for review of the decision would not be admissible within a twoyear period.
22. The Court of Appeal found that the order for the applicant’s placement in a psychiatric hospital was devoid of purpose. Having regard to the expert reports submitted to the criminal courts since 1985 and a new report by expert K. requested by the court itself, it was clear that the applicant no longer suffered from a serious mental disorder which should be qualified as pathological.
23. As to the preventive detention of the applicant, who was represented by counsel, the Court of Appeal, endorsing the reasons given by the Regional Court, found that the applicant’s dangerousness necessitated his continued detention. In view of the offences he had committed and could be expected to commit on release, his continued detention was proportionate. No material change in the circumstances decisive for his detention was to be expected within a two-year period (Article 67e § 3 of the Criminal Code).
24. According to the Court of Appeal, Article 67d § 3 of the Criminal Code, as amended in 1998, was constitutional. The court conceded that at the time when the applicant’s preventive detention was ordered, it would have ceased after ten years of detention at the latest. However, Article 2 § 6 of the Criminal Code (see paragraph 48 below) authorised a retrospective worsening of the applicant’s situation as far as measures of correction and prevention such as preventive detention were concerned. Such measures were not classified as penalties, but as preventive measures, and were therefore not prohibited under Article 103 § 2 of the Basic Law (see paragraph 61 below) as retrospective criminal provisions.
25. Likewise, the applicant’s continued preventive detention did not infringe the prohibition in principle of retrospective provisions enshrined in the rule of law. Weighty public-interest grounds, namely the protection of the public from dangerous offenders, justified the adoption of such retrospective provisions by the legislator in the present case.
26. On 26 November 2001 the applicant, represented by counsel, lodged a complaint with the Federal Constitutional Court against the decisions ordering his continued preventive detention even on completion of the tenyear period. He claimed, in particular, that these decisions were based on Article 67d § 3 of the Criminal Code, as amended in 1998, under the terms of which the duration of a convicted person’s first period of preventive detention could be extended retrospectively from a maximum period of ten years to an unlimited period of time. Accordingly, this provision violated the prohibition of retrospective punishment under Article 103 § 2 of the Basic Law, the prohibition of retrospective legislation enshrined in the rule of law, the principle of proportionality and his right to liberty under Article 2 § 2, second sentence, of the Basic Law (see paragraph 57 below). Moreover, the impugned provision entailed his being refused any relaxation in his conditions of detention which would allow him to obtain a positive finding to the effect that he was no longer dangerous to the public. As a consequence, it entailed lifelong imprisonment without any prospect of release.
27. On 5 February 2004 a panel of eight judges of the Federal Constitutional Court, having held a hearing at which it also consulted psychiatric experts and several prison governors, dismissed the applicant’s constitutional complaint (no. 2 BvR 2029/01) as ill-founded. In its thoroughly reasoned leading judgment (running to 84 pages), it held that Article 67d § 3 of the Criminal Code, read in conjunction with section 1a(3) of the Introductory Act to the Criminal Code, as amended in 1998, was compatible with the Basic Law.
28. The Federal Constitutional Court held that preventive detention based on Article 67d § 3 of the Criminal Code restricted the right to liberty as protected by Article 2 § 2 of the Basic Law in a proportionate manner.
29. The court stressed that the longer a person was held in preventive detention, the stricter became the requirements concerning the proportionality of the deprivation of liberty. However, Article 67d § 3 of the Criminal Code took into account the increased importance of the right to liberty after ten years in custody. It set a higher standard with respect to the legal interest under threat (protecting only threats to the victims’ physical or mental integrity) and the proof of the applicant’s dangerousness (requiring a duly substantiated report by an experienced external psychiatric expert). It also made termination of detention the rule and extension the exception, to be used as a measure of last resort. Moreover, the procedural provisions on preventive detention (Articles 67c § 1, 67d §§ 2 and 3 and 67e of the Criminal Code) provided for regular review to determine whether the person’s detention could be suspended or terminated. Due to the special significance which the relaxation of detention conditions had for the prognosis of future dangerousness, the court responsible for the execution of the sentence was not permitted to accept without sufficient reason a refusal by the prison authorities to relax detention conditions as a possible precursor to the termination of a detainee’s preventive detention.
30. Preventive detention did not serve to avenge past offences but to prevent future ones. Therefore, the Länder had to ensure that a detainee was able to have his or her detention conditions improved to the full extent compatible with prison requirements.
31. The Federal Constitutional Court further held that Article 67d § 3 of the Criminal Code, taken in conjunction with section 1a(3) of the Introductory Act to the Criminal Code, did not violate Article 103 § 2 of the Basic Law. The absolute ban on the retrospective application of criminal laws imposed by that Article did not cover the measures of correction and prevention, such as preventive detention, provided for in the Criminal Code.
32. Interpreting the notions of “punished” and “punishable act” in Article 103 § 2 of the Basic Law, the Federal Constitutional Court found that the Article applied only to State measures which expressed sovereign censure of illegal and culpable conduct and involved the imposition of a penalty to compensate for guilt. Having regard to the genesis of the Basic Law and the purpose of Article 103 § 2, it did not apply to other State measures interfering with a person’s rights.
33. In particular, Article 103 § 2 of the Basic Law did not extend to measures of correction and prevention, which had always been understood as differing from penalties under the Criminal Code’s twin-track system of penalties and measures of correction and prevention. The fact that a measure was connected with unlawful conduct or entailed considerable interference with the right to liberty was not enough. Unlike a penalty, preventive detention was not aimed at punishing criminal guilt, but was a purely preventive measure aimed at protecting the public from a dangerous offender. Therefore, preventive detention was not covered by Article 103 § 2, even though it was directly connected with the qualifying offence.
34. The Federal Constitutional Court further held, by six votes to two on this issue, that the abolition of the maximum period of detention where preventive detention was ordered for the first time, and the application of the relevant provision (Article 67d § 3 of the Criminal Code read in conjunction with section 1a(3) of the Introductory Act to the Criminal Code) to criminals who had been placed in preventive detention prior to its enactment and entry into force and who had not yet fully served their sentences, were in conformity with the protection of legitimate expectations guaranteed in a State governed by the rule of law (Article 2 § 2 read in conjunction with Article 20 § 3 of the Basic Law; see paragraph 59 below).
35. The court stressed that Article 67d § 3 of the Criminal Code as amended did not retrospectively alter the legal consequences attaching to the offence as fixed in the final judgment of the sentencing court. It had always been the courts responsible for the execution of sentences which had jurisdiction to decide whether and for how long a convicted person was held in preventive detention.
36. Nevertheless, the maximum duration of a first period of preventive detention as laid down in the old version of Article 67d §§ 1 and 3 of the Criminal Code gave detainees reason to expect release when ten years had elapsed. However, pursuant to Article 2 § 6 of the Criminal Code (see paragraph 48 below), the ten-year maximum duration of preventive detention, like all other measures of correction and prevention, had been subject from the outset to changes in the law.
37. Weighing the interests involved, the Federal Constitutional Court concluded that the legislator’s duty to protect members of the public against interference with their life, health and sexual integrity outweighed the detainee’s reliance on the continued application of the ten-year limit. As Article 67d § 3 of the Criminal Code was framed as an exception to the rule and in the light of the procedural guarantees which attached to it, its retrospective application was not disproportionate.
38. The Federal Constitutional Court further found that a person’s human dignity as enshrined in Article 1 § 1 of the Basic Law did not impose a constitutional requirement that there be a fixed maximum period for a convicted person’s preventive detention. The person’s dignity was not violated even by a long period of preventive detention if this was necessary owing to the continued danger which he or she posed. However, the aim of preventive detention had to be to rehabilitate detainees and to lay the foundations for a responsible life outside prison. Human dignity required laws and enforcement programmes which gave detainees real prospects of regaining their freedom.
39. Preventive detention in its present form met these requirements. The courts responsible for the execution of sentences had, in particular, to examine before the end of a convicted person’s prison term (Article 67c § 1 of the Criminal Code) and subsequently at least every two years (Article 67e § 2 of the Criminal Code) whether the measure could be suspended. If ten years had been spent in preventive detention, they declared the measure terminated under Article 67d § 3 of the Criminal Code if no specific dangers remained. In practice, persons in preventive detention were released after having spent a certain length of time in prison.
40. Lastly, the Federal Constitutional Court found that the prohibition on being removed from the jurisdiction of the lawful judge, as guaranteed by Article 101 § 1 of the Basic Law (see paragraph 60
41. In Schwalmstadt Prison, persons in preventive detention like the applicant are placed in a separate building from prisoners serving their sentence. They have certain privileges compared with convicted offenders serving their sentence. For instance, they have the right to wear and wash their own clothes and have more pocket money. They can practise sport in a separate sports room and may stay outside in the yard for several hours every day. They may equip their more comfortable cells with additional furniture and equipment and have longer visiting hours.
42. As to measures aimed at reintegration into society, persons held in preventive detention in Schwalmstadt Prison, like those detained in other prisons, are offered a weekly discussion group which proposes ideas for recreational activities and for structuring daily life. Furthermore, there are individual discussions to improve the detainee’s integration into the group and a residential group evening every two weeks aimed, inter alia, at motivating detainees to accept the treatment on offer. Where it is considered appropriate, detainees are offered individual therapy sessions with an external therapist or group therapy in the socio-therapeutic facility of another prison. The detainee may also request a consultation with the psychologist or social worker in charge in order to deal with crisis situations.
43. The applicant has been receiving therapy since he was placed in preventive detention. Since the beginning of 1993 he has had therapy sessions with a psychologist in Schwalmstadt Prison. From September 2000 to March 2003 he also had regular individual therapy sessions with an external psychologist. At that point, the therapy was considered to have been completed and no longer necessary. In addition, the applicant has been examined by psychiatrists at regular intervals in order to evaluate his dangerousness and to permit relaxation of the prison regime as appropriate. As to relaxation of the conditions of the applicant’s preventive detention, he is currently granted short periods of leave under escort (Ausführungen) a few times per year. He also receives regular visits (on average three times per month) from his fiancée, to whom he has been engaged since 2005. He has been working, with a short interruption, in prison and is currently working in the prison’s metal workshop, with net earnings of approximately 350 to 543 euros (EUR) per month.
44. According to a psychiatric expert report and an additional psychological report drawn up in September 2006, the applicant had made important steps towards reintegration into society, in particular by turning away from his criminal identity, which he had developed since his childhood, and by trying to think before acting. His new relationship with his fiancée could be seen as a further positive development and would also improve his social circumstances in the event of his release from prison. However, this trend had not yet stabilised and a lack of loyalty and empathy towards others as well as a dangerous impulsiveness, which had manifested itself again when the applicant had punched a fellow detainee in the face following a dispute concerning a baking tin in 2005, persisted. The expert recommended maintaining and cautiously extending the current measures to relax the conditions of the applicant’s preventive detention.
45. The German Criminal Code distinguishes between penalties (Strafen) and socalled measures of correction and prevention (Maßregeln der Besserung und Sicherung) to deal with unlawful acts. This twin-track system of sanctions, the introduction of which had been considered and discussed since the end of the nineteenth century, was incorporated into the Criminal Code by the Law on dealing with dangerous habitual offenders and on measures of correction and prevention (Gesetz gegen gefährliche Gewohnheitsverbrecher und über Maßregeln der Besserung und Sicherung) of 24 November 1933. The rules on preventive detention remained in force, essentially unchanged, after 1945 and underwent several reforms enacted by the legislator from 1969 onwards.
46. Penalties (see Articles 38 et seq. of the Criminal Code) consist mainly of prison sentences and fines. The penalty is fixed according to the defendant’s guilt (Article 46 § 1 of the Criminal Code).
47. Measures of correction and prevention (see Articles 61 et seq. of the Criminal Code) consist mainly of placement in a psychiatric hospital (Article 63 of the Criminal Code) or a detoxification facility (Article 64 of the Criminal Code) or in preventive detention (Article 66 of the Criminal Code). The purpose of these measures is to rehabilitate dangerous offenders or to protect the public from them. They may be ordered for offenders in addition to their punishment (compare Articles 63 et seq.). They must, however, be proportionate to the gravity of the offences committed by, or to be expected from, the defendants as well as to their dangerousness (Article 62 of the Criminal Code).
48. The temporal applicability of provisions of the Criminal Code depends on whether they relate to penalties or measures of correction and prevention. The penalty is determined by the law which is in force at the time of the act (Article 2 § 1 of the Criminal Code); if the law in force on completion of the act is amended before the court’s judgment, the more lenient law applies (Article 2 § 3). On the other hand, decisions on measures of correction and prevention are based on the law in force at the time of the decision unless the law provides otherwise (Article 2 § 6).
49. The sentencing court may, at the time of the offender’s conviction, order his preventive detention under certain circumstances in addition to his prison sentence if the offender has been shown to be dangerous to the public (Article 66 of the Criminal Code).
50. In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years’ imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year’s imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1).
51. Article 67c of the Criminal Code governs orders for the preventive detention of convicted persons which are not executed immediately after the judgment ordering them becomes final. Paragraph 1 of the Article provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges; see sections 78a and 78b(1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person’s preventive detention is still necessary in view of its objective. If that is not the case, it suspends on probation the execution of the preventive detention order; supervision of the person’s conduct (Führungsaufsicht) commences with suspension.
52. At the time of the applicant’s offence and his conviction, Article 67d of the Criminal Code, in so far as relevant, was worded as follows:
“1. Detention in a detoxification facility may not exceed two years and the first period of preventive detention may not exceed ten years. ...
2. If there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend further execution of the detention order on probation as soon as there are justifiable reasons for testing whether the detainee can be released without committing further unlawful acts. Suspension shall automatically entail supervision of the conduct of the offender.
3. If the maximum duration has expired, the detainee shall be released. The measure shall thereby be terminated.”
53. Article 67d of the Criminal Code was amended while the applicant was in preventive detention for the first time, by the Combating of Sexual Offences and Other Dangerous Offences Act (Gesetz zur Bekämpfung von Sexualdelikten und anderen gefährlichen Straftaten) of 26 January 1998, which entered into force on 31 January 1998. The amended provision, in so far as relevant, provided:
“1. Detention in a detoxification facility may not exceed two years ...
2. If there is no provision for a maximum duration or if the time-limit has not yet expired, the court shall suspend on probation further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his or her release. Suspension shall automatically entail supervision of the conduct of the offender.
3. If a person has spent ten years in preventive detention, the court shall declare the measure terminated if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the conduct of the offender.”
54. As to the applicability ratione temporis of Article 67d of the Criminal Code as amended, the Introductory Act to the Criminal Code, in so far as relevant, reads:
“Article 67d of the Criminal Code, as amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998 (Federal Gazette I, p. 160), shall apply without restriction.”
55. With respect to the judicial examination required under Article 67d § 3 of the Criminal Code and to the subsequent decisions under Article 67d § 2, Article 463 § 3 of the Code of Criminal Procedure, as amended by the Combating of Sexual Offences and Other Dangerous Offences Act, makes it compulsory for the court responsible for the execution of sentences both to consult an expert on the question whether the convicted person is likely to commit serious offences when released and to appoint defence counsel to represent him or her.
56. In addition to Articles 67c § 1 and 67d §§ 2 and 3 of the Criminal Code, Article 67e of the Criminal Code provides for the review of a convicted person’s preventive detention. The court may review at any time whether the further execution of the preventive detention order should be suspended on probation. It is obliged to do so within fixed time-limits (§ 1 of Article 67e). For persons in preventive detention, this time-limit is two years (§ 2 of Article 67e). The court may shorten this time-limit, but may also set terms within the statutory limits for review before which an application for review shall be inadmissible (§ 3 of Article 67e).
57. Article 2 § 2, second sentence, of the Basic Law provides that the liberty of the person is inviolable.
58. Pursuant to Article 20 § 3 of the Basic Law, the legislature is bound by the constitutional order, the executive and the judiciary by law and justice.
59. According to the well-established case-law of the Federal Constitutional Court, Article 2 § 2 read in conjunction with Article 20 § 3 of the Basic Law protects legitimate expectations in a State governed by the rule of law. A law may be retrospective in the sense that, while its legal effects are not produced until it is published, its definition covers events “set in motion” before it is published (so-called unechte Rückwirkung; see the decisions of the Federal Constitutional Court in the compendium of decisions of the Federal Constitutional Court (BVerfGE), vol. 72, pp. 200 et seq., 242, and vol. 105, pp. 17 et seq. and 37 et seq.). In respect of retrospective laws in that sense, the principles of legal certainty and protection of legitimate expectations are not given overall priority over the intention of the legislator to change the existing legal order in response to changing circumstances. The legislator may enact such retrospective laws if the importance of the purpose of the legislation for the common good outweighs the importance of the interest in protecting legitimate expectations (see the judgment of the Federal Constitutional Court in the instant case, pp. 70-73, with many references to its case-law).
60. Pursuant to Article 101 § 1 of the Basic Law, no one may be removed from the jurisdiction of the lawful judge.
61. Under Article 103 § 2 of the Basic Law, an act may be punished only if the fact of its being punishable was determined by law before the act was committed.
62. The (Federal) Execution of Sentences Act (Strafvollzugsgesetz) lays down rules for the execution of sentences of imprisonment in prisons and for the execution of measures of correction and prevention depriving the persons concerned of their liberty (see section 1 of the Act). Its provisions were applicable in all Länder until 31 December 2007; since then, the Länder have had the power to legislate on these issues. In so far as they have already made use of this power, the provisions laid down by the Länder on the execution of preventive detention orders do not differ significantly from those laid down in the Execution of Sentences Act.
63. Section 2 of the Execution of Sentences Act deals with the purpose of the execution of sentences of imprisonment. During the execution of a sentence of imprisonment the detainee should become capable henceforth of leading a socially responsible life without committing offences (purpose of execution; first sentence). The execution of the sentence of imprisonment is also aimed at protecting the public from further offences (second sentence).
64. Sections 129 to 135 of the Execution of Sentences Act contain special rules for the execution of preventive detention orders. Section 129 provides that persons held in preventive detention shall be detained in secure conditions for the protection of the public (first sentence). They are to be given assistance in readjusting to life outside prison (second sentence). Unless stipulated otherwise (in sections 131 to 135 of the said Act), the provisions concerning the execution of prison sentences shall apply mutatis mutandis to preventive detention (section 130 of that Act).
65. According to section 131 of the Execution of Sentences Act, the equipment of the institutions in which persons are held in preventive detention, notably detention cells, and particular measures to promote their welfare, must be designed to help detainees to organise their life in the institution in a reasonable manner and to protect them from damage caused by a lengthy deprivation of liberty. Their personal needs are to be taken into account as far as possible. Section 132 of the said Act provides that detainees may wear their own clothes and use their own linen and bedding, unless this is prohibited for security reasons and provided they see to their cleaning, repair and regular changing at their own expense. Moreover, under section 133 of the said Act, detainees are allowed to occupy themselves against payment if this serves the objective of imparting, maintaining or promoting skills needed for paid employment after their release. They also receive pocket money. Pursuant to section 134 of the said Act, the conditions of detention may be relaxed and special leave for a period of up to one month may be granted in order to test detainees’ readiness and prepare them for release.
66. Section 140(1) of the Execution of Sentences Act provides that preventive detention is served either in a separate institution or in a separate wing of a prison for the execution of sentences of imprisonment.
67. According to statistical material submitted by the Government, which was not contested by the applicant, the German sentencing courts made a total of 75 preventive detention orders in 2005, 42 of which concerned sexual offenders. A total of 415 persons were being held in preventive detention in Germany on 31 March 2007. In 2002, the average duration of a first period of preventive detention was between two years and three months and seven years in the different Länder. In that year, 261 persons placed in preventive detention for the first time were affected by the abolition of the maximum duration of preventive detention of ten years under Article 67d § 3 of the Criminal Code, read in conjunction with section 1a(3) of the Introductory Act to the Criminal Code as amended in 1998. In 2008, 70 persons were still affected by that change in the law and had been in preventive detention for more than ten years.
68. According to statistical material submitted by the Government, which was not contested by the applicant, Germany had 95 prisoners per 100,000 inhabitants in 2006, whereas there were, for example, 333 prisoners per 100,000 inhabitants in Estonia, 185 in the Czech Republic, 149 in Spain, 148 in England and Wales, 85 in France, 83 in Switzerland, 77 in Denmark and 66 in Norway. Furthermore, according to the Council of Europe Annual Penal Statistics, Survey 2006, of 12 December 2007 (PC-CP (2007) 9rev3 of 23 January 2006, p. 47), the total number of prisoners sentenced to terms of imprisonment ranging from ten years up to and including life imprisonment on 1 September 2006 was 2,907 in Germany, 402 in Estonia, 1,435 in the Czech Republic, 3,568 in Spain, 12,049 in England and Wales, 8,620 in France, 172 in Denmark and 184 in Norway.
69. According to the information and material before the Court, the member States of the Council of Europe have chosen different ways of shielding the public from convicted offenders who acted with full criminal responsibility at the time of the offence (as did the applicant at the relevant time) and who risk committing further serious offences on release from detention and therefore present a danger to the public.
70. Apart from Germany, at least seven other Convention States have adopted systems of preventive detention in respect of convicted offenders who are not considered to be of unsound mind, in other words, who acted with full criminal responsibility when committing their offence(s), and who are considered dangerous to the public as they are liable to reoffend. These include Austria (see Articles 23 et seq. and 47 et seq. of the Austrian Criminal Code, and Articles 435 et seq. of the Austrian Code of Criminal Procedure), Denmark (see Articles 70 et seq. of the Danish Criminal Code), Italy (see Articles 199 et seq. of the Italian Criminal Code), Liechtenstein (see Articles 23 et seq. and 47 of the Liechtenstein Criminal Code and Articles 345 et seq. of the Liechtenstein Code of Criminal Procedure), San Marino (see Articles 121 et seq. of the San Marinese Criminal Code), Slovakia (see Articles 81 and 82 of the Slovakian Criminal Code) and Switzerland (see Articles 56 et seq. of the Swiss Criminal Code). Preventive detention in these States is ordered, as a rule, by the sentencing courts and is generally executed after the persons concerned have served their prison sentences (with the exception of Denmark, where preventive detention is ordered instead of a prison sentence). The detainees’ dangerousness is reviewed on a periodic basis and they are released on probation if they are no longer dangerous to the public.
71. As to the place and duration of the placement, persons subject to preventive detention are placed in special institutions in Austria (see Article 23 of the Austrian Criminal Code), Liechtenstein (see Article 23 of the Liechtenstein Criminal Code), San Marino (see Articles 121 et seq. of the San Marinese Criminal Code), Slovakia (see Article 81 of the Slovakian Criminal Code) and Switzerland (see Article 64 of the Swiss Criminal Code). Even though Italian law also stipulates that preventive detention is to be served in special institutions (compare Articles 215 et seq. of the Italian Criminal Code), it appears that in practice these institutions no longer exist and that the persons concerned are kept in ordinary prisons under a special detention regime. Dangerous offenders in preventive detention in Denmark are also kept in ordinary prisons under a special detention regime. In Denmark, Italy, San Marino, Slovakia (see the express provisions of Article 82 § 2 of the Slovakian Criminal Code) and Switzerland, the applicable provisions do not fix a maximum duration of preventive detention. By contrast, in Austria and Liechtenstein, such detention may not exceed ten years (see Article 25 § 1 of both the Austrian and the Liechtenstein Criminal Codes).
72. As regards the temporal applicability of the provisions on preventive detention, it is to be noted that, according to the wording of the applicable provisions in some of the States concerned, they may be applied retrospectively. Thus, pursuant to Article 200 of the Italian Criminal Code, a decision on preventive measures is to be based on the law in force at the time of their execution, and pursuant to Article 2 § 3 of the Slovakian Criminal Code, these decisions are to be based on the law in force at the time of the decision ordering the security measure. Under Article 4 § 1 of the Danish Criminal Code, the question whether an offence is to be punished by preventive detention is decided by applying the law in force at the time of the judgment in the criminal proceedings. The San Marinese Criminal Code likewise does not prohibit the retrospective application of preventive measures. By contrast, retrospective application appears to be prohibited in respect of preventive detention measures pursuant to Articles 23 § 1 et seq. of both the Austrian and the Liechtenstein Criminal Codes and under Swiss law.
73. In many other Convention States, there is no system of preventive detention and offenders’ dangerousness is taken into account both in the determination and in the execution of their sentence. On the one hand, prison sentences are increased in the light of offenders’ dangerousness, notably in cases of recidivism. In this respect it is to be noted that, unlike the courts in the majority of the Convention States, the sentencing courts in the United Kingdom expressly distinguish between the punitive and the preventive part of a life sentence. The retributive or tariff period is fixed to reflect the punishment of the offender. Once the retributive part of the sentence has been served, a prisoner is considered as being in custody serving the preventive part of his sentence and may be released on probation if he poses no threat to society (see, inter alia, sections 269 and 277 of the Criminal Justice Act 2003 and section 28 of the Crime (Sentences) Act 1997). On the other hand, offenders’ dangerousness generally has an influence both on their conditions of detention and on their chances of benefiting from a reduction of their sentence or from release on probation.
74. As regards the distinction between penalties and preventive measures in the Convention States and the consequences drawn from the qualification of the sanction in question, it must be noted that the same type of measure may be qualified as an additional penalty in one State and as a preventive measure in another. Thus, the supervision of a person’s conduct after release, for example, is an additional penalty under Articles 131-36-1 et seq. of the French Criminal Code and a preventive measure under Articles 215 and 228 of the Italian Criminal Code.
75. Moreover, the Act of 25 February 2008 on post-sentence preventive detention and diminished criminal responsibility due to mental deficiency (Loi relative à la rétention de sûreté et à la déclaration d’irresponsabilité pénale pour cause de trouble mental) has introduced preventive detention into French law. Under Article 706-53-13 of the French Code of Criminal Procedure, this measure may be ordered against particularly dangerous offenders who pose a high risk of recidivism because they suffer from a serious personality disorder. The French Constitutional Council, in its decision of 21 February 2008 (no. 2008-562 DC, Official Gazette (Journal officiel) of 26 February 2008, p. 3272), found that such preventive detention, which was not based on the guilt of the person convicted but was designed to prevent persons from reoffending, could not be qualified as a penalty (§ 9 of the decision). To that extent, it thus took the same view as the German Federal Constitutional Court in respect of preventive detention under German law (see paragraphs 31-33 above). Nevertheless, in view of its custodial nature, the time it may last, the fact that it is indefinitely renewable and the fact that it is ordered after conviction by a court, the French Constitutional Council considered that post-sentence preventive detention could not be ordered retrospectively against persons convicted of offences committed prior to the publication of the Act (§ 10 of the decision). In this respect, it came to a different conclusion than the German Federal Constitutional Court (see paragraphs 31-33 and also paragraphs 34-37 above).
76. The Council of Europe’s Commissioner for Human Rights, Mr Thomas Hammarberg, stated the following in his report on his visit to Germany from 9 to 11 and from 15 to 20 October 2006 (CommDH(2007)14 of 11 July 2007) regarding the issue of what he referred to as “secured custody” (Sicherungsverwahrung):
“203. During the visit, the Commissioner discussed the issue of secured custody with several Länder authorities, judges and medical experts. The Commissioner is aware of the public pressure judges and medical experts are exposed to when they make decisions regarding the release of a person who might recommit a serious crime. It is impossible to predict with full certainty whether a person will actually reoffend. Psychiatrists regularly assess the behaviour of an imprisoned person who might act differently outside the prison. In addition, it is difficult to foresee all the conditions that wait for the offender outside the prison.
204. The Commissioner calls for an extremely considerate application of secured custody. Alternative measures should also be considered before recourse to secured custody is taken. The Commissioner is concerned about the rising number of people deprived of their liberty under secured custody. He encourages the German authorities to commission independent studies on the implementation of secured custody in order to evaluate the measure in terms of protecting the general public and its impact on the detained individual.
...
206. Furthermore, the Commissioner was informed that persons kept under secured custody regularly experience a loss of future perspective and give up on themselves. This would appear to call for the provision of psychological or psychiatric care. The medical opinion may occasionally be divided on the efficacy of care provided to persons kept under secured custody, yet the possibility of their eventual rehabilitation and release should not be excluded. Accordingly, people held under secured custody should receive adequate medical treatment or other care that addresses their specific situation.”
77. In its report to the German Government on its visit to Germany from 20 November to 2 December 2005 (CPT/Inf (2007) 18 of 18 April 2007), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) made the following findings in respect of the “Unit for Secure Placement” (Sicherungsverwahrung) in Berlin-Tegel Prison:
“94. Material conditions in the unit were of a good or even very good standard, with several particularly positive elements: well equipped single rooms with sanitary annexes; a light and reasonably spacious communal environment; a small kitchen with equipment for inmates to prepare hot drinks and light snacks, and an area where washing, drying and ironing could be done.
95. In principle, inmates had access to the same activities as ordinary prisoners (in terms of work, education, etc.). In addition, in accordance with the relevant legislation, inmates benefited from a number of special privileges. In particular, cell doors remained open throughout the day, and inmates were granted additional entitlements for visits (two hours instead of one hour per month), outdoor exercise (four hours instead of one hour on non-working days), the supply of parcels (six rather than three per year) and pocket money (if there was no work). It is also noteworthy that all inmates had unrestricted access to the telephone.
96. In theory, at least, the unit offered opportunities for a positive custodial living environment. However, not all inmates were capable of making the best of these opportunities, which was not surprising if one takes into account that, according to medical staff, most if not all of the inmates were suffering from multiple personality disorders. The vast majority of inmates were completely demotivated, with only two taking any outdoor exercise, three working full-time and one part-time. Twelve inmates were offered work, but were not willing to take part in it. Thus, the vast majority of inmates was idling away their time alone in their cells, occupying themselves with watching TV or playing video games.
Even among those inmates who apparently assumed and coped with the responsibility for their daily lives on the unit, the sense was that the activities were strategies to pass time, without any real purpose. As might be expected, this appeared to be related to their indefinite Sicherungsverwahrung. Several inmates interviewed expressed a clear sense that they would never get out and one stated that the only thing he could do was prepare himself to die.
97. According to the prison administration, staff worked according to special treatment criteria, the aim being the individual’s release from placement in Sicherungsverwahrung; the focus was to minimise the risk to the general public, as well as to deal with the physical and psychological effects of long-term custody. Yet, the delegation observed that in practice, staff (including the social worker) were conspicuous by their absence in this unit, thereby keeping staff-inmate contacts to a minimum.
...
99. Even for the other inmates who were apparently coping better with their situation, the lack of staff engagement on the unit was not justifiable. Allowing inmates responsibility and a degree of independence does not imply that staff should leave them to their own devices. The duty of care cannot be ignored, particularly in relation to such a special group of inmates. The delegation gained the distinct impression that the staff themselves were not clear as to how to approach their work with these inmates. As well as empowering inmates to take charge of their lives in custody, there is a need for ongoing support to deal with indefinite detention, as well as to address the legacy of serious past histories of aberrant behaviour and apparent psychological problems. Psychological care and support appeared to be seriously inadequate; the CPT recommends that immediate steps be taken to remedy this shortcoming.
100. The difficult question of how to implement in practice a humane and coherent policy regarding the treatment of persons placed in Sicherungsverwahrung needs to be addressed as a matter of urgency at the highest level. Working with this group of inmates is bound to be one of the hardest challenges facing prison staff.
Due to the potentially indefinite stay for the small (but growing) number of inmates held under Sicherungsverwahrung, there needs to be a particularly clear vision of the objectives in this unit and of how those objectives can be realistically achieved. The approach requires a high level of care involving a team of multi-disciplinary staff, intensive work with inmates on an individual basis (via promptly-prepared individualised plans), within a coherent framework for progression towards release, which should be a real option. The system should also allow for the maintenance of family contacts, when appropriate.
The CPT recommends that the German authorities institute an immediate review of the approach to Sicherungsverwahrung at Tegel Prison and, if appropriate, in other establishments in Germany accommodating persons subject to Sicherungsverwahrung, in the light of the above remarks.”
78. In its Concluding Observations adopted at its session from 7 to 25 July 2008 on the report submitted by France under Article 40 of the International Covenant on Civil and Political Rights (see CCPR/C/FRA/CO/4 of 31 July 2008), the United Nations Human Rights Committee found:
“16. The Committee is concerned by the State Party’s claim of authority under Act No. 2008/174 (25 February 2008) to place criminal defendants under renewable oneyear terms of civil preventive detention (rétention de sûreté) because of ‘dangerousness’, even after they have completed their original prison sentences. While the Constitutional Council has prohibited retroactive application of the statute, and the judge who sentences a criminal defendant contemplates the possibility of future civil preventive detention as part of the original disposition of a case, nonetheless, in the view of the Committee, the practice may remain problematic under Articles 9, 14 and 15 of the Covenant.”
VIOLATED_ARTICLES: 5
7
VIOLATED_PARAGRAPHS: 5-1
7-1


ITEMID: 001-88397
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KHOLODENKO v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1956 and lives in Volzhskiy, a town in the Volgograd Region.
5. The applicant sued the Volgograd Regional Department of the Judiciary, the Ministry of Justice, and the Treasury for damages caused by a negligent enforcement of a civil judgment. On 27 February 2003 the Voroshilovskiy District Court of Volgograd awarded the applicant 661,593.17 Russian roubles (RUB). This judgment became binding on 23 July 2003 and was enforced on 25 April 2006.
6. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months.
VIOLATED_ARTICLES: 6
P1
VIOLATED_PARAGRAPHS: P1-1


ITEMID: 001-23892
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: ROSSANO v. ITALY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, Mr Francesco Rossano, is an Italian national who was born in 1953 and lives in S. Agnello (Naples). He was represented before the Court by Mr G. Carini, a lawyer practising in Naples.
The respondent Government were represented by their successive Agents, respectively Mr U. Leanza and Mr I.M. Braguglia, and by their successive co-Agents, respectively Mr V. Esposito and Mr F. Crisafulli.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of a flat in Naples, which he had let to M.M., G.T. and C.T.
In a writ served on the tenant on 28 June 1989, the applicant informed the tenants of his intention to terminate the lease on expiry of the term on 11 July 1991 and summoned them to appear before the Naples Magistrate.
By a decision of 11 July 1990, which was made enforceable on 30 January 1991, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 1 July 1992.
On 2 July 1992, the applicant served notice on the tenants requiring them to vacate the premises.
On 3 August 1992, he informed the tenants that the order for possession would be enforced by a bailiff on 9 September 1992.
Between 9 September 1992 and 6 March 2001, the bailiff made twenty-two attempts to recover possession. Each attempt proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession.
On 2 July 1993, the applicant made a statutory declaration that he urgently required the premises as accommodation for himself.
Pursuant to Law Decree no. 32 of 25 February 2001, all the enforcement proceedings were suspended until 31 December 2001.
Pursuant to Law Decree no 122 of 20 June 2002, all the enforcement proceedings were suspended until 30 June 2003.
According to the last information provided by the applicant on 20 February 2004, he has not yet recovered possession of the flat due to Law n. 200 of 1 August 2003 which suspended all the enforcement proceedings until 30 June 2004.


ITEMID: 001-57680
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 1991
DOCNAME: CASE OF MOREIRA DE AZEVEDO v. PORTUGAL (ARTICLE 50)
IMPORTANCE: 2
CONCLUSION: Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
TEXT: 7. For the facts of the case the Court refers to the principal judgment (pp. 8-11, paras. 11-50) and will merely bring it up to date here.
8. On 21 March 1988 Mr Moreira de Azevedo brought an action for damages in the Vila Nova de Famalicão Court of First Instance against Mr Bernardo Gonçalves de Sousa, the defendant in the criminal proceedings for assault whose duration, according to the principal judgment, had exceeded the "reasonable time". On 30 June 1988 the court held that the applicant’s right to compensation was statute-barred, and this decision (despacho saneador) was upheld by the Oporto Court of Appeal (tribunal de relação) on 6 July 1989.
9. Mr Moreira de Azevedo lodged an appeal (revista) and the Supreme Court (Supremo Tribunal de Justiça) quashed the Court of Appeal’s decision on 24 January 1991, holding that the said right was not statute-barred and ordering the case to be proceeded with.
In a letter of 28 June 1991 the Government informed the Registrar that this decision had not yet become final, as Mr Gonçalves de Sousa had applied for a declaration of nullity (Article 732 of the Code of Civil Procedure).


ITEMID: 001-58125
LANGUAGEISOCODE: ENG
RESPONDENT: CHE
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF CAMENZIND v. SWITZERLAND
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8;Preliminary objection rejected;Violation of Art. 13+8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
TEXT: 7. On 5 December 1991 the radio communications surveillance unit of the Head Office of the Swiss Post and Telecommunications Authority (PTT) located on a frequency reserved for civil and military aircraft a private telephone conversation being held on a telephone of an unauthorised type. The surveillance unit recorded the conversation held on the line allocated to Mr Camenzind – a lawyer living in Fribourg – and informed the appropriate PTT authorities.
8. The applicant was suspected of contravening section 42 of the Federal Act of 1922 “regulating telegraph and telephone communications”. On 11 December 1991 the Berne cantonal telecommunications office (Fernmeldekreisdirektion) of the PTT began an investigation concerning the applicant pursuant to the Federal Administrative Criminal Law Act 1974.
9. On 13 December 1991 the area director of the PTT in Berne issued a warrant to search the applicant’s home under sections 48 et seq. of the Federal Administrative Criminal Law Act. It was specified in the warrant that the purpose of the search was to find and seize the unauthorised cordless telephone.
10. At 9.50 a.m. on 21 January 1992 two PTT officials went to the applicant’s home. He admitted having tested a cordless telephone in the past but said that it was no longer in his possession. After being shown the search warrant, he allowed the PTT officials into the hall of the flat, in which he in fact occupied only one room, the other five being let. Having been told of the legal aspects of the search, he consulted the file on his case and telephoned a lawyer and a senior official at the PTT office in Berne.
11. The search was carried out by a single PTT official, as requested by Mr Camenzind, and in his presence. The official searched every room of the two-storey building, including the cellar. He did no more than check whether the telephones and television sets were PTT-approved. He did not touch anything, open any drawers or examine any documents. No equipment of the type sought was found. At 11.55 a.m. a record was drawn up and signed by both the applicant and the investigating official. The record indicated among other things that a complaint could be made about the search under sections 26 to 28 of the Federal Administrative Criminal Law Act.
12. On 24 January 1992 Mr Camenzind applied to the Indictment Division of the Federal Court under section 26 of the Federal Administrative Criminal Law Act for a declaration that the search was a nullity. The Head Office of the PTT argued that the application was inadmissible.
13. On 27 March 1992 the Federal Court delivered a judgment dismissing the application in the following terms (translation from German):
“1. (a) The Indictment Division of the Federal Court has jurisdiction to hear complaints about coercive measures (sections 45 et seq. of the [Federal Administrative Criminal Law Act]) and related administrative acts (section 26 (1) of [that Act]). Under section 28 (1) of the Act a complaint may be lodged by anyone who is affected by the impugned investigative measure and has an interest worthy of protection in having it quashed or varied.
(b) The applicant did not dispute that he had in his possession a telephone that had not been approved in Switzerland. He even expressly said, during the course of the search, that he had used such a telephone; it had, however, proved to be unusable and had consequently been destroyed ... It was therefore not possible for any seizure to be effected as the telephone could not be found. The complaint is not, therefore, directed against a seizure (none was effected) but against the search and the interception of telephone conversations ...
(c) In so far as the complaint concerns the search as such (‘unlawful search [unlawfully entering a person’s home]’, ‘forced search’, ‘threat of the use of force’), and the interception and recording of telephone conversations, it is unnecessary to consider it, since the applicant has no present interest in invoking the protection of the courts (aktuelles Rechtsschutzbedürfnis) as the measures have ceased and he is no longer affected by them (BGE [Bundesgerichtsentscheidungen – Judgments of the Federal Court] 103 IV 117 E. 1a).
(d) That is also true in principle of the locating and recording of the telephone calls concerned here, which are closely linked to the search. Exceptionally, however, the Federal Court does not in practice require a present interest where the impugned infringement of the law is likely to recur at any time, where an application to the courts could not be heard in time in the particular case and where the issues raised could arise again in similar or comparable circumstances at any time and are, because of the importance of the principle concerned, of sufficient public interest (BGE 116 Ia 150 E. 2a; 116 II 729 E. 6; Ib 59 E. 2b).
These conditions are satisfied in the present case because the carrying out of a search presupposes that in the first place the person using a telephone of an unauthorised type has been located by appropriate means. That investigation will, however, already have ended by the time the search and any seizure are made. For that reason, the complaint must be upheld in so far as it is directed at the interception and recording of conversations held on the applicant’s unauthorised telephone.
...
For these reasons the Indictment Division holds:
(1) In so far as it has been declared admissible, the complaint is dismissed;
...”
14. In decisions of 14 August and 26 September 1995 the Federal Communications Office imposed a fine of 150 Swiss francs on the applicant for an offence under section 42 of the Act “regulating telegraph and telephone communications” and ordered him to pay the costs and expenses.
15. On 11 October 1995 Mr Camenzind brought proceedings for review of that decision in the Saane District Court (Bezirksgericht), which on 18 December 1995 were dismissed on the ground that prosecution of the offence in question was time-barred (absolute Verjährung).
16. At the material time, section 42 of the Federal Act of 1922 “regulating telegraph and telephone communications” provided:
“(1) Anyone setting up, operating or using, without a licence or permit or in a manner contrary to the terms on which a licence or permit was granted, transmitters or receivers or any equipment for which a licence or permit is required and which is used for electric or radio transmission of signals, images or sounds,
...
shall be liable to a term of imprisonment not exceeding three months or a fine not exceeding 10,000 Swiss francs unless, under Article 151 of the Swiss Criminal Code, he is liable to a heavier sentence.
(2) The fine shall not exceed 5,000 Swiss francs where the offence has been committed through negligence.”
17. Administrative criminal law procedures are governed by the Federal Administrative Criminal Law Act of 22 March 1974, as amended (“the DPA”).
18. The federal authorities are responsible for prosecuting and trying certain offences against federal law. They are also vested with the power to conduct the investigations into such offences. The necessary interviews (of which records are made), on-the-spot inspections and coercive measures are entrusted to officials specially trained for the purpose (section 20 (1) of the DPA).
19. Officials called upon to conduct an investigation or to take or prepare a decision are required to stand down if they have a personal interest in the case, if they are related to the “suspect” by blood or marriage, by direct or collateral descent up to the third degree, or are linked with him through marriage, engagement or adoption and if there are circumstances such as to make them appear to be partial in the case (section 29).
20. A “suspect” is entitled, whatever the circumstances, to representation (section 32). In principle, both the “suspect” and his representative may be given leave by the investigating official to participate in the taking of evidence (section 35).
21. The investigating official may interview the “suspect” (section 39), other people “for information purposes” (section 40) and – in the presence of the “suspect” and his representative – witnesses (section 41). He may also order an expert opinion – in consultation with the “suspect” (section 43) – and an on-the-spot inspection, which the “suspect” and his representative are entitled to attend (section 44). The investigating official is in addition empowered to effect “with due regard for the person concerned and his property” seizures, searches and provisional arrests (sections 45 et seq.); these measures, known as “coercive” measures, may not be used in respect of a “breach of administrative regulations” (such a breach is a contravention which is so described in special administrative law or one for which an administrative fine can be imposed; section 3).
22. Searches in particular are governed by the following provisions of the Federal Administrative Criminal Law Act:
“(1) Dwellings and other premises, including any adjoining enclosed area, may be searched only if it is likely that a suspect is in hiding there or if objects or valuables liable to seizure or evidence of the commission of the offence are to be found there.
(2) A suspect may be searched if necessary. The search must be carried out by a person of the same sex or by a doctor.
(3) Searches shall be carried out under a written warrant issued by the director or head of the authority concerned or, if the investigation is within his competence, by the area director of customs or of the PTT.
(4) If there is immediate danger and a search warrant cannot be obtained in time, the investigating official may himself order a search or carry it out. Reasons for the measure must be given in the file.”
“(1) At the beginning of a search the investigating official shall provide evidence of identity.
(2) The occupier of the premises must be informed of the purpose of the search and be asked to attend, if present. If he is absent, a relative or a member of the household shall be asked to attend. A public officer designated by the competent cantonal authority – or, if the investigating official is acting on his own initiative, a member of the municipal authority or an official of the canton, district or municipality – shall also be required to attend the search in order to ensure that it does not deviate from its purpose. A search may be conducted without public officers, members of the household or relatives being present where it would be dangerous to defer the search or where the occupier has consented.
(3) As a general rule, searches shall not be conducted on Sundays or public holidays or at night except in important cases or where there is imminent danger.
(4) A record of the search shall be drawn up immediately in the presence of the persons who attended; if they so request, they shall be provided with a copy of the search warrant and of the record.”
“(1) Searches for documents must be carried out with the greatest regard for private and confidential information; in particular, documents shall not be examined unless it is apparent that their content is important for the investigation.
(2) Searches shall be carried out so as to preserve occupational confidentiality and the confidentiality of information given to clergymen, barristers, notaries, doctors, chemists, midwives and their auxiliaries in the exercise of their ministry or profession.
(3) Before a search is carried out, the person in possession of the documents shall, whenever possible, be allowed to indicate their content. If he does not agree to the search, the documents shall be placed under seal and deposited in a safe place; the Indictment Division of the Federal Court shall decide whether the search is lawful ...”
23. Coercive measures, including searches (sections 45 et seq. of the DPA), and related acts and omissions may form the subject of a complaint to the Indictment Division of the Federal Court (section 26).
Complaints are admissible for breaches of federal law – or of the Convention (see the Federal Court’s judgment of 17 August 1989 in the case of X v. Caisse de pensions de l’Etat de Neuchâtel et tribunal administratif du Canton de Neuchâtel, Judgments of the Swiss Federal Court, vol. 115, V, p. 253) – for inaccurate or incomplete findings of fact or for inappropriateness. A complaint may be lodged by anyone affected by the impugned investigative measure, the omission complained of or the decision on the complaint and who has an interest worthy of protection in having the measure, omission or decision quashed or varied (section 28). The Indictment Division of the Federal Court has said (X. gegen Generaldirektion PTT, 23 June 1977, Judgments of the Swiss Federal Court, vol. 103, IV, p. 115; translation from German):
“Only persons who are (still) affected, at least in part, by the impugned decision and as a result have an interest in its being varied have locus standi to lodge a complaint.”
24. The authorities have jurisdiction to try offences against administrative criminal law. However, where the department to which they are subordinate considers that a custodial sentence or measure must be contemplated, jurisdiction lies with the courts. A person affected by a decision of the authorities in criminal proceedings may, within ten days of being notified of the decision, ask to be tried by a court. If he does not do so, the decision is “treated as a judgment that has become final” (sections 21 and 72).
25. A suspect who is found to have no case to answer may seek compensation from the authorities for detention pending trial and other losses sustained. Compensation may be reduced or refused if it was through the suspect’s own fault that the investigation was started or if, without reason, the suspect has hindered or delayed the proceedings. The authorities’ decision on that issue may be challenged by lodging a complaint with the Indictment Division of the Federal Court (sections 99 and 100).
VIOLATED_ARTICLES: 13
8
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-107514
LANGUAGEISOCODE: ENG
RESPONDENT: MLT
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ZAMMIT MAEMPEL v. MALTA
IMPORTANCE: 3
CONCLUSION: No violation of Art. 8;Remainder inadmissible
JUDGES: David Scicluna;David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Zdravka Kalaydjieva
TEXT: 6. The applicants are Maltese nationals who were born in 1949, 1956, 1984 and 1986 respectively and live in San Gwann, Malta. The third and fourth applicants are the children of the first and second applicants.
7. The applicants have resided in a house in San Gwann owned by the first and second applicants since 1994. Their property includes 4,800 sq. m of surrounding fields. The house is one of three houses in a remote area of grassland.
8. Every year, on the occasion of certain village feasts, firework displays are set up in the fields close to the applicants’ residence (a distance of 150 metres or more).
9. The applicants allege that every time fireworks are let off from this area they are exposed to grave risk and peril to their life, physical health and personal security. Moreover, the heavy debris produced causes considerable damage to the residence.
10. In consequence, over the years the applicants complained to the Commissioner of Police (“CoP”), but no remedial action was taken.
11. On an unspecified date the applicants brought their complaint before the Ombudsman. By a report of 10 December 1999, the latter recommended that in considering applications for discharge of fireworks from areas whose residents had put forward complaints, the CoP should request the advice of a group of experts established by law in order to determine whether the area in question ought to be declared a restricted area in terms of Rule 15 of the Control of Fireworks and Other Explosives Regulations (“the regulations”).
12. Eventually, the group of experts recommended that the fields from where the fireworks were being let off should be classified as a restricted area in terms of the regulations.
13. In spite of this recommendation the CoP again issued permits for the letting off of fireworks from the field in question for the purposes of two village feasts. Since the committee of experts had not, at the relevant time, been constituted, the CoP acted on the recommendations of the Explosives Committee.
14. The applicants again complained to the Ombudsman. By a report of 22 February 2001, the latter held the complaint justified and noted that the two licences issued were not in accordance with the regulations (regarding the applicable distances and type of fireworks). The group of experts had the duty to give advice and the competent authority had little justification to exercise its discretion and refuse this expert advice on such technical matters. While the pressure applied on the authorities from various quarters in such cases was well known, this was an instance of maladministration which could not but attract criticism.
15. This notwithstanding, the CoP continued to issue the relevant permits for the purposes of two feasts per year, to the present date.
16. The applicants alleged that further requests to the CoP, by the applicants and their neighbours, for information or reasons as to why they had not been consulted, remained unheeded, except for one meeting which was held at the police station in the absence of the group of experts.
17. On 13 April 2005 the applicants instituted constitutional redress proceedings, complaining that the CoP was not protecting them as he was duty bound to do. While he ignored the experts’ recommendations, the applicants had not been consulted about the issue of the relevant permits. They submitted that the law did not protect their interests, in that although it established a certain distance which had to be maintained between residences and the letting off of fireworks, it applied such distances only to “inhabited areas” which according to law meant “an aggregation of houses inhabited, or capable of being inhabited, by more than one hundred persons”. However, their house was one of three in the area and thus did not benefit from the protection of the law. Moreover, they claimed that the law was deficient, as it did not provide a procedure for issuing licences whereby the residents were informed and could make submissions to safeguard their interests, or appeal against the issue of such permits. Furthermore, the application of the definition of “inhabited area” resulted in discriminatory treatment against the applicants. They invoked Article 8, alone and in conjunction with Article 14 of the Convention.
18. On 14 February 2006 the Civil Court (First Hall) in its constitutional jurisdiction upheld the applicants’ claims in part. It dismissed the complaint about the failure of the authorities to take appropriate procedures for the issue of licences for lack of exhaustion of ordinary remedies. For the rest, it held that the legal definition of “inhabited area” breached the applicants’ rights under Article 8, alone and in conjunction with Article 14, and that the law regarding the issue of permits and licences also breached their rights under Article 8, in that its application failed to include sufficient procedural safeguards. The Court noted that the applicants were aware of the situation when they purchased the property. However, it noted that the letting off of fireworks had caused damage to the applicants’ property, namely to the roof’s membrane and the swimming pool area, as a result of the debris produced; and during the relevant feasts the noise levels were very high, to the extent that the applicants were suffering hearing impairment that could become permanent. Although the effects of this pollution were not continuous, as in most cases which had been decided by the ECHR, the practice of letting off of fireworks would certainly continue and its effects on the applicants included damage and threats to their person and their home, as dangerous unexploded fireworks were often found in the surroundings. In consequence, the court considered that, while the legality of the issue of these permits was questionable, by depriving the applicants of protection, on the basis that their area did not accommodate a hundred people, the law was not giving due weight to the interests of the applicants.
19. The respondent State, together with the Fireworks Association of St Helen and the Maltese society of Pyrotechnics, appealed. In common they submitted, inter alia, that unlike the ECHR cases dealing with environmental pollution, the present case did not deal with such pollution, because, among other reasons, the letting off of fireworks was restricted to a few hours over a few days in a whole year.
20. On 30 October 2009, the Constitutional Court reversed the first-instance judgment. It noted that the applicants’ case was not grounded on Article 1 of Protocol No. 1 to the Convention, although the applicants had made reference to damage to their property, but on Article 8. Thus, the Court had to establish whether the State had taken all the necessary measures to protect the applicants’ rights under this provision. The Court acknowledged that the noise and peril to their lives and property during certain days created an inconvenience for the applicants which amounted to interference. However, the interference was in accordance with the law, as it had its basis in the Control of Fireworks and Other Explosives Regulations, and whether the CoP had issued licences according to the regulations, a matter which was to be examined by the ordinary courts as established by the first-instance court, was irrelevant. As to the proportionality of the interference the Court considered that in the present case the complaint was not directed towards a fireworks factory near the applicants’ residence, but simply the venue used to let off the fireworks at a specific time. In the present case, the relevant law struck a balance between the conflicting interests by means of specific measures, such as the times at which fireworks could be let off; the type of fireworks which could be let off; the different venues which could be used; the security distances which had to be complied with; compulsory insurance coverage; the presence of a fire engine; and police on site. Indeed, in the present case the police were on site to make sure that the action was taken according to the permits issued and a person from the relevant association was present in the area of the applicants’ houses as a precaution. The latter association also offered the applicants its help and protection to prevent any harm to the property. Thus, it could not be said that the applicants had not been protected. As to the definition of “inhabited area”, it was to be borne in mind that Malta was a small country, densely populated, with few, if any, areas where no people lived, and such legislation could only be seen in this context. Furthermore, the letting off of fireworks happened in a limited period for a few hours in a week twice a year and some years even less often. Acknowledging that such noise might also cause disturbance to other persons, old and young especially, the court could not ignore the fact that the applicants had been informed of this danger by the previous owner (who had had an accident in the house due to the fireworks) before they bought the house. Yet, they chose to purchase the said property. Overall the court was of the view that the legislator had successfully tried to reach a balance between the right to home and private life of the applicants and the traditional, cultural, religious and touristic needs of Maltese society, bearing in mind the size of the island. This might be otherwise if it were established that the measures applied were or would not be in accordance with the parameters set by law, a matter which the applicants had and have the right to contest before the ordinary courts regarding any future permit granted. In consequence there was no violation of Article 8 of the Convention.
21. As to the alleged discrimination, the court reiterated that the provision only applied to persons in analogous situations. However, the applicants had not proved that they had been treated differently to other persons who resided in “inhabited areas”. Moreover, it has already been held that the applicants were receiving appropriate protection and that the applicants had knowingly decided to move to the area in question.
22. Fireworks in Malta have a long-standing tradition which is still very much alive in the crowded calendar of village feasts that take place all over Malta and Gozo, especially in the summer months.
23. The facts of this case deal with a specific area where fireworks are let off during two separate weeks annually and only during particular days, therefore not on a daily basis during those weeks. Moreover, from 1999-2005 the site was used for fireworks less regularly (following a death amongst the pyrotechnic personnel of the relevant parish while manufacturing fireworks).
24. The relevant sections of the Control of Fireworks and Other Explosives Regulations, Subsidiary Legislation 33.03, as amended by Legal Notice 243 of 1998, in so far as relevant at the time of the present case, read as follows:
Section 2
“In these regulations, unless the context otherwise requires -
“inhabited area” means any area in which there is an aggregation of houses inhabited, or capable of being inhabited, by more than one hundred persons;”
Section 12
“Any person who applies for a licence to discharge fireworks as provided for in article 24 of the Ordinance shall -
(a) comply with the times set out in the First Schedule or as otherwise indicated in the licence;
(b) satisfy the Commissioner that the fireworks were manufactured in a licensed factory;
(c) produce a policy of insurance adequately covering any claims arising from the death or personal injury to third parties or from damage to third party’s property that may be caused by any explosion or other factor during discharge of fireworks;
(d) ensure that persons letting off fireworks are in possession of a Category "A", "B" or "C" licence.”
Section 14
“No person shall discharge any fireworks from any site unless -
(a) the site is the one approved for that purpose in a licence issued under the Ordinance;
(b) in the discharge of any fireworks from any approved site, he satisfies the provisions set out in the First and Second Schedules;
(c) the pipes for the discharge of aerial fireworks are effectively screened at the site by wooden boards, sandbags, tyres or cardboard or wooden boxes filled with soil or similar material, so as to prevent the flying of fragments caused by unintentional explosion.”
Section 15
“(1) Only fireworks of the approved type may be let off from a restricted site.
(2) For the purposes of sub-regulation (1) hereof, a "restricted site" is a site so declared by the Commissioner on the advice of the group of experts referred to in regulation 16 and includes an area within such distance from such site as may be declared by the Commissioner on the advice of the same group, and "fireworks of the approved type" are fireworks of such type as may be approved by the Commissioner for the purpose on the advice of the said group.”
Section 16
“(1) The Minister shall appoint a group of experts under the chairmanship of the chairman of the Explosives Committee for the purposes of regulation 15, consisting of -
(a) all the members of the Explosives Committee,
(b) a representative of the Museums Department,
(c) a representative of the Planning Authority,
(d) a representative of such association as in the opinion of the Minister is most representative of fireworks manufacturers,
(e) such other person chosen from amongst persons who in the opinion of the Minister have knowledge and experience in explosives and/or fireworks after consultation with the most representative organisations concerned in such matters.
(2) In submitting their advice, the experts shall take into consideration the type of fireworks to be discharged from the site, the value, historical or otherwise, of the site from where these fireworks are intended to be discharged, and the safety distances involved.”
Section 17
“The person licensed to discharge fireworks shall take the necessary steps for the recovery and removal from the area around the site of discharge, of such items of fireworks which fail to ignite or explode as well as any other material resulting from the discharge of such fireworks.”
Section 18
“No aerial fireworks shall be discharged on any day and times other than those indicated in the Police permit.”
25. The First Schedule of the regulations, in so far as relevant at the time of the present case, regarding times of discharging of fireworks, provided as follows:
“1. Moving the Statue from the Niche
8 a.m.. .................................. 10 minutes
12 noon ............................................. 10 minutes
Removal of the statue from the niche .... 20 minutes
Evening display .....................20 minutes, not to finish later than 10 p.m.
2. First and Second Day of Triduum
8 a.m.. .................................. 10 minutes
12 noon ............................................. 10 minutes
End of religious function (barka) .... 20 minutes
Evening display .....................20 minutes, not to finish later than 10 p.m.
3. Third Day of Triduum
As per days at 1 and 2 above, except that the evening display may extend for up to 45 minutes, but not to exceed 11 p.m.
4. Eve of the Feast
Ta Deum or 8 a.m.. .................................. 30 minutes
12 noon ............................................. 10 minutes
Evening service (Translazzjoni)........................ 1 hour of daylight fireworks display
Evening display ................................. to commence by not later than 10 p.m. but to finish by not later than 11.30pm (provided that any such display shall not exceed in total a maximum of two hours from commencement)
4. Day of the Feast
8 a.m.. ............... 10 minutes
12 noon/Sanctus ............................................. 20 minutes
Procession ............................................ (a) 7 p.m. and to finish by 11 p.m. in general
or (b) 8 a.m. to finish by noon”
26. The Second Schedule of the regulations, in so far as relevant at the time of the present case, provided as follows:
D. Distances for the letting off of fireworks
“(a) To be discharged from 60 metres distance from an inhabited area or public streets used regularly by motor vehicles - bukketti tal-kulur and beraq/spanjoli of up to 5cms diameter; maroons cannot be discharged.
(b) To be discharged from 150 metres distance from an inhabited area or public streets used regularly by motor vehicles - maroons not exceeding 7.6 cm in diameter and 7.6 cm in length; also coloured, whistles or cracker shells (kaxxi tal-bombi, kuluri, beraq u sfafar).
(c) To be discharged from 200 metres distance from an inhabited area or public streets used regularly by motor vehicles - all other types of fireworks.”
27. The Explosives Committee is not constituted by law to advise on such matters, but forms part of the Group of Experts established by Law (section 16, above).
28. According to a report of the Environment Commission of the Archdiocese of Malta, there were fourteen fatalities and thirty-eight injuries related to fireworks between 1997 and 2006, of which only 4% occurred during the actual discharge of fireworks.
29. To date the majority of firework-related accidents remains associated with factory accidents, with, for example, the following data available for the year 2010, according to local newspapers:
February – Two men die in an explosion at St Sebastian fireworks factory in Qormi.
April – Two escape unhurt when the San Bartolomeo factory explodes in Għargħur.
May – One man dies at St Catherine’s fireworks factory in Marsaxlokk.
August – A man dies at the August 15 fireworks factory in Mosta.
September – Għarb fireworks factory explodes, three dead, one missing and two injured (with a final tally of six dead).
NON_VIOLATED_ARTICLES: 8