ITEMID: 001-111224
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: BRÄUNIG v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger
TEXT: 1. The applicant, Mr Klaus Rudolf Bräunig, is a German national who was born in 1944. He is currently serving a sentence of life imprisonment in Diez prison, Rhineland-Palatinate. He was represented before the Court by Mr K. Wasserburg, a lawyer practising in Mainz, in cooperation with Mr O. Lagodny, a professor at Salzburg University.
3. The applicant was arrested in the night of 20 June 1970 while trespassing on a residential estate in a Mainz suburb where he was suspected of having engaged in voyeuristic activities. The arrest occurred within the scope of police surveillance measures carried out following the killing of two women, mother and daughter, in the night of 12 April 1970 in a nearby housing area in Mainz. On an evening a couple of days before the killings a man had been noticed in the garden of the victims’ house at night while observing the daughter through her bedroom window. There were thus grounds for suspecting that the two women had been killed by the said voyeur.
4. In the course of police interrogations carried out during the week following his arrest, the applicant first confessed having engaged in voyeuristic activities on several occasions in the past, then admitted to having assaulted a girl on two occasions in 1969 and, finally, he confessed to the killing of the two women in the night of 12 April 1970. On the occasion of subsequent interrogations and interviews during his pre-trial detention, the applicant - while maintaining his confession that he had engaged in voyeuristic activities in the past - repeatedly withdrew and renewed his confessions regarding the sexual assaults in 1969 and the killings in 1970. His description of the order and the way in which the killings had been committed differed from the account given on the occasion of his first confession.
5. On 13 August 1970 the applicant - now represented by counsel - finally revoked all previous confessions regarding the assault and killings and has protested his innocence ever since.
6. According to the bill of indictment submitted by the Public Prosecutor to the Mainz Regional Court on 30 March 1972, it was likely that the applicant had first killed the daughter and subsequently the mother in order to cover up the daughter’s murder.
7. In the course of the applicant’s subsequent trial it was established that during the period from 1967 to 1970 the applicant had been active as a voyeur on numerous occasions. He had approached the homes of several girls or young women in the dark in order to observe them from outside. On most occasions he had further tried to draw his victims’ attention to himself, asked them to have sexual intercourse and masturbated in front of their windows. His attempts to enter the women’s homes by force were generally to no avail. However, on two occasions in 1969 the applicant managed to enter the home of an unsuspecting young woman through an open window and knocked her down when she rejected his sexual advances. As regards the killings of the two women in April 1970, the court found it established that during the period from the end of March to 10 April 1970 the applicant had repeatedly observed the 17-year-old daughter at night through the window of her bedroom in her parent’s house in Mainz. In the night of 12 April 1970 the applicant broke into the family’s home with a view to having sexual intercourse with the girl. He first killed the mother who had woken up when he had entered the house with a knife he carried along. He then went to the daughter’s bedroom. When the latter rejected his sexual advances, the applicant - out of anger and sexual frustration - hit and stabbed the girl in the head and throat with his knife so that she bled to death.
8. In its judgment of 19 July 1972 (file no. 2 Ks 2/72) the Mainz Regional Court held that the applicant had killed both women out of base motives. The Regional Court based its findings in particular on the applicant’s detailed description of the crime scene in the course of the preliminary proceedings as well as on his account of the events given on the occasion of his first confession of the killings in June 1970.
9. Referring to the opinions of two psychiatric experts, the Regional Court considered that the applicant was suffering from a sexual deviation that had reached addictive dimensions and could considerably restrict his ability to control his acts in a sexual context. However, his sexual deviation did not amount to a mental illness that would exclude his criminal responsibility. In view of the particular gravity of the offences and the applicant’s guilt the Regional Court also saw no reason to mitigate the applicant’s sentence.
10. Consequently, the Regional Court found the applicant guilty on two counts of murder and sentenced him to life imprisonment in each case in accordance with Article 211 of the German Criminal Code.
11. On 6 December 1973 the Federal Court of Justice, after hearing the applicant and the Federal Prosecutor General (Generalbundesanwalt) rejected the applicant’s appeal on points of law as ill-founded.
12. By a decision of 22 June 1982, confirmed on appeal, the Bad Kreuznach Regional Court dismissed the applicant’s request for a reopening of the proceedings as inadmissible.
13. On 13 November 1984 the Koblenz Regional Court, having heard the applicant, the Diez prison authorities as well as the Mainz public prosecution authorities, concluded that in the case at hand the particular gravity of the applicant’s guilt justified the continuation of his detention for more than the minimum period of fifteen years envisaged for murder. However, the Court of Appeal specified that such finding did as a rule not exclude the suspension of the remainder of a life sentence at a later stage, for instance after a period of 18, 20 or 25 years.
14. In the following years various psychiatric and psychologist expert opinions were obtained by the Diez prison authorities on the question whether the applicant could be granted relaxations of his detention (Vollzugslockerungen) and whether his future release on probation was conceivable.
15. For instance, a psychiatric expert stated in an opinion rendered on 20 May 1985 that the applicant’s perversion had developed progressively and had finally escalated in destructive behaviour. The expert further found that the applicant’s insistence on his innocence had meanwhile reached a pathological quality in itself and prevented him from accepting therapeutic help. It was thus impossible from a psychiatric point of view to assess whether the applicant had actually committed the crimes or to give a reliable criminal prognosis for the future. Having regard to, inter alia, the applicant’s unobtrusive behaviour during detention, the expert saw no acute risk of recidivism and proposed to test the applicant’s capacity to cope with life outside prison on the occasion of relaxations of his detention. He nevertheless specified that a theoretical risk that the applicant would commit further crimes could not be excluded.
16. In a statement of 6 January 1989 the resident psychologist at Diez prison pointed out that the applicant still had problems in establishing interpersonal relations and trivialised his voyeurism. Thus, a potential danger that the applicant’s sexual perversion would resurge in the event of his release on probation could not be excluded.
17. However, in a statement of 12 November 1990 a Limburg psychotherapist who had provided regular outpatient psychological treatment to the applicant since July 1970 found that, having regard to the therapy carried out so far, there was “no compelling reason to assume” that the applicant had been intellectually capable of organising and committing the crimes. Consequently, it was also not to be expected that he would be capable of committing similar crimes in the future.
18. The applicant was granted first relaxations of his detention from September 1991. However these relaxations were later revoked as a consequence of an expert opinion by a professor of Mainz University rendered in September 1993. This expert stated that as a consequence of inappropriate therapy measures during his detention the applicant had taken to insist on his innocence and had become resistant to any further therapy attempts. The expert was of the opinion that irrespective of the fact that relaxations of the applicant’s detention in the past had not given cause for complaints, there was a high risk that he would reoffend if confronted with conflict situations similar to the one that had been at the origin of the murders. In this expert’s opinion the danger the applicant posed to society was not lower than at the time he had committed the crimes.
19. A further psychiatrist opinion of 4 October 1994 considered that the applicant had made considerable progress as regards his ability to establish interpersonal relationships and had learned to constructively deal with his sexuality. The expert further pointed out that the applicant had not abused previous relaxations of his detention and had not shown aggressive or sexually deviating behaviour in the course of his meanwhile 24 years of detention. He therefore suggested that relaxations of his detention be reinstated with a view to testing whether a conditional suspension of his life sentence could be considered in the future.
20. Consequently, in 1995, the applicant was transferred to open prison facilities, allowed to take up employment outside prison and to make his journeys to and back from work without supervision. He was further granted prison leave that he spent in an apartment rented by him for this purpose.
21. The same psychiatric expert who had rendered the opinion in 1994 addressed the possibility of the applicant’s conditional release on probation in a further opinion of 26 August 1996 commissioned by the Mainz Senior Public Prosecutor (Oberstaatsanwalt). The expert noted that the applicant had made further progress with a view to his social integration and that his conduct during relaxations of his detention had been unobjectionable. He therefore confirmed his previous finding that the applicant’s criminal prognosis was rather positive. He pointed out that, however, the applicant still lacked experience in establishing and maintaining sexual relations. While the risk of recidivism could be further reduced by accompanying therapeutic treatment, it was impossible to assess the likelihood that the applicant would commit further serious crimes if confronted with a situation of conflict in a sexual context.
22. In a statement of 8 August 1996 the Limburg psychologist who had attended to the applicant since 1970 (see § 17 above) expressed the view that as a result of specific therapeutic measures implemented since 1990 the applicant had gained in social competence and made progress regarding a possible social integration. He had learned to control his actions and therefore further relaxations of his detention should be considered.
23. By a decision of 10 November 1997 the Koblenz Regional Court held that the particular gravity of the applicant’s guilt had been compensated by the execution of his sentence for meanwhile over 27 years and thus did no longer require the continued execution of his life sentence. In line with the proposal of the public prosecution authorities, the court, after having heard the applicant on 9 September 1997, nevertheless refused the latter’s first request to suspend his detention on probation on the ground that there remained a risk that he would commit similar offences if released.
24. The applicant’s related appeal was dismissed by the Koblenz Court of Appeal on 14 January 1998. The Court of Appeal noted that if, as in the case at hand, the offence at issue qualified as murder, the safety interest of the public was of particular importance. A release on probation could not be considered if there remained an even remote risk that the convict would commit further serious crimes if released. While the findings in the numerous psychological and psychiatric expert opinions established over the years had been to some extent contradictory, they had nevertheless all confirmed that a risk that the applicant would commit further serious crimes threatening the life of others could not be excluded. The court specified that the statement of the applicant’s long-time therapist of 12 November 1990 (see § 17 above) which was at variance with the experts’ findings did not lead to a different conclusion since this therapist was lacking the required distance and impartiality.
25. On 11 August 1998 the applicant again requested that he be released on probation and submitted that his continued detention for meanwhile 28 years violated his human dignity.
26. On 8 June 1999 the Koblenz Regional Court commissioned an additional expert opinion on the likelihood that the applicant would commit further serious crimes if released. It was rendered by a deputy medical director (Oberarzt) of the Mainz psychiatric university clinic on 15 March 2000. This expert pointed out that the applicant’s irreproachable behaviour during the relaxations of his detention over several years constituted a positive criterion for his criminal prognosis. He nevertheless shared the view of previous experts that the applicant’s persevering denial of the crimes prevented him from appreciating and analysing the specific circumstances and motives which had led to the murders. It was thus difficult to assess the remaining risk of recidivism and it could not be excluded that the applicant still posed a threat to society.
27. By a decision of 29 January 2002 the Koblenz Regional Court, after hearing the said psychiatric expert as well as the applicant and referring to written statements from the Mainz public prosecution authorities as well as the Diez prison authorities, again ordered that the execution of the applicant’s detention be continued. In its decision-making the court took into account that the Diez prison authorities had given a favourable opinion on the applicant’s possible release on probation in view of the fact that he had never abused relaxations of his detention which had been implemented for meanwhile almost eight years. The Regional Court, relying in particular on the assessment by the said psychiatric expert, nevertheless held that the applicant’s criminal prognosis was still uncertain. This assessment was further supported by the resident psychologist at Diez prison. In a written statement of 13 November 2001 he had stated that the applicant’s lack of insight into his deed did not even allow for a positive criminal prognosis in the long term.
28. The applicant appealed the decision by written submissions of 21 February and 8 March 2002. He maintained, inter alia, that contrary to the court’’s criminal prognosis, were bound by the statement and assessment of facts as established in the Mainz Regional Court’s judgment of 19 July 1972.
29. On 22 April 2002 the Koblenz Court of Appeal, endorsing the Regional Court’s reasoning, dismissed the appeal as ill-founded.
30. The Court of Appeal held that, contrary to the applicant’s submissions, it had to be assumed that the offences had been committed as established in the first instance judgment of 19 July 1972. This finding was in line with the wording of Article 57 of the Criminal Code (see relevant domestic law below) stipulating that in their assessment whether a life sentence was to be suspended on probation the courts, shall, inter alia, take into account the circumstances of the convict’s crime. These circumstances of a case could only be established in the proceedings leading to the conviction. It was not the task of the court dealing with issues in relation to the subsequent execution of the convict’s sentence to reassess the facts. The only appropriate remedy for a convict alleging that new evidence had occurred following his conviction would be a request for a reopening of the proceedings.
31. The Court further noted that it followed from the experts’ opinions that the likelihood that the applicant would commit similar offences if released could not be assessed in a reliable way. Even the opinions established in 1994 and 1996 by the expert who had given a rather positive criminal prognosis for the applicant, based on his unobtrusive conduct during the execution and relaxations of his sentence, had concluded that it was unpredictable how the applicant would react if confronted with a situation of conflict within a sexual context. Subsequent psychological statements and opinions had also come to the conclusion that a risk of his reoffending could not be excluded even if the applicant was to be monitored closely. The Court of Appeal therefore considered that the applicant was a “ticking bomb” and that the risk that he would commit a serious violent crime was not merely theoretical irrespective of his irreproachable conduct during detention. While taking into account the applicant’s increasing interest to be released in view of his detention for meanwhile 32 years, the Court of Appeal concluded that in view of the gravity of the offences committed, the applicant’s denial of the deeds and the resulting doubts in respect of a positive criminal prognosis, the safety interest of the public still prevailed over the applicant’s interest to be released on probation. The continued execution of his life sentence was thus proportionate.
32. On 24 May 2002 the applicant complained about a violation of his right to be heard (Anhörungsrüge) and challenged the presiding judge at the Court of Appeal for bias. He alleged in particular, that the Court of Appeal had ignored his argument that the facts as stated in the Mainz Regional Court’s judgment of 19 July 1972 were not binding on the psychological experts. Furthermore, it had not addressed his concerns whether the indefinite execution of a life sentence was in compliance with the German Basic Law (Grundgesetz). His applications were rejected by the Koblenz Court of Appeal on 8 July 2002 and 22 July 2002, respectively.
33. On 24 May 2002 the applicant lodged a constitutional complaint against the decisions of the Koblenz Regional Court of 29 January 2002 and the Koblenz Court of Appeal dated 22 April 2002. On 2 September 2002, he extended his constitutional complaint to the decisions of the Koblenz Court of Appeal dated 8 July 2002 and 22 July 2002.
34. On 8 November 2006 the Federal Constitutional Court, by a leading decision (file no. 2 BvR 796/02) running to some 79 pages, rejected the applicant’s complaint as ill-founded to the extent he had challenged the refusal of the domestic courts to suspend his detention on probation.
35. The Federal Constitutional Court found that the execution of a life sentence beyond the period warranted by the particular gravity of a convict’s guilt on the ground that the latter still presented a threat to society did not as such violate his or her constitutionally guaranteed right to respect of human dignity or right to liberty. However, the protection of human dignity and the principle of the rule of law required that a detained person had a concrete and realistically attainable chance to regain his freedom at some later point in time. Such prospect of release was guaranteed by means of a strict scrutiny by the domestic courts whether an ongoing detention was still proportionate. The longer a detention lasted, the stricter the scrutiny of whether it was still proportionate had to be. A detainee’s ever increasing interest to be released in the course of a lengthy detention on the one hand was restricted by the State’s mandate to protect the rights of others and the safety interest of the public on the other. Where criminal offences such as murder were to be expected in the event of a potential recidivism, the safety interest of the public required particular protection. A release on probation could only be envisaged if the remaining risk for the safety interest of the public was justifiable. However, even in the event a convict had committed serious violent or sexual crimes, a release on probation could not be refused by the domestic courts simply on the ground that there existed a mere theoretical risk of recidivism (which in view of the limited possibilities of any kind of prognosis could in any event never be excluded). It rather had to be based on concrete factual circumstances establishing that such risk was unjustifiable having regard to the safety interest of the public.
36. The Federal Constitutional Court further pointed out that a convict’s interest in being released also had an impact on the procedural requirements to be observed by the courts when deciding on a possible suspension of a sentence of life imprisonment. In view of the indefinite duration of a life sentence, domestic law provided for a judicial examination of a request for a release on probation which could be lodged by the public prosecution authorities as well as the convict at any point in time. Furthermore, the conditions for a possible release had to be assessed by the authorities at an early stage in order to enable them to take appropriate measures to prepare a convict’s possible release. In this connection relaxations of detention were of particular importance since they offered the judge a broader and sounder basis for an assessment of the detainee’s criminal prognosis with respect to a life in liberty. When assessing the likelihood that a convict would commit further serious crimes if released, the courts were under an obligation to obtain the best possible clarification of the circumstances of a case and had to base their prognosis on a sufficiently substantiated and recent expert opinion. Finally, any court decisions on the continuation of a lengthy detention had to be carefully reasoned and disclose the basis of the judge’s assessment. In the event the continued detention was primarily justified by the safety interest of the public, it had to be considered whether the particular burden of a long-lasting deprivation of liberty could be countered by granting the convict certain privileges in daily prison routine, thus allowing him to retain some quality of life.
Federal Constitutional Court found that the impugned decisions of the Koblenz Regional Court and Court of Appeal had complied with the aforementioned constitutional requirements. The domestic courts had struck a fair balance between the applicant’s right to be released and the safety interest of the public. The Court of Appeal, in its appeal decisions of 22 April and 22 July 2002, had not only taken into consideration the considerable length of the applicant’s detention of meanwhile 32 years but also his good conduct. It had further made a thorough assessment of the various expert opinions on the applicant’s criminal prognosis and provided arguments why it shared the evaluation of the external expert opinion of 2000 confirming that a risk of recidivism could not be excluded. On the basis of the expert’s assessment the Court of Appeal had concluded that such risk was not merely theoretical and had demonstrated that under certain conditions the applicant’s ability to control his actions was reduced to an extent that made it possible that he would commit similar serious offences even if he was to be closely monitored following a possible release. The Federal Constitutional Court, while noting that a more convincing reasoning of the courts’ decisions would have been desirable, conceded that the lack of clarification of the specific circumstances leading to the murders resulted from the applicant’s failure to reflect on the crimes. Under these circumstances, the Court of Appeal’s assessment that the likelihood of the applicant committing further serious crimes such as murder was of a degree that the safety interest of the public had to prevail over his interest to be released, had nevertheless been reasonable.
38. Finally, the Federal Constitutional Court pointed out that in view of the fact that no review of the applicant’s detention had occurred since the impugned decision of 2002, the public prosecution authorities were under an obligation to investigate ex officio why the applicant had not submitted a related request.
39. The Federal Constitutional Court’s decision was served on the applicant on 1 December 2006.
40. Following the Koblenz Court of Appeal’s decision of 22 April 2002 in the proceedings at issue, the Diez prison authorities ordered in June 2002 that the applicant’s cell and his apartment outside prison be searched. There had further been evidence that in the months of April and May 2002 the applicant had extended his journeys to and back from work on several occasions. On the occasion of the search of his apartment the Diez prison authorities seized, inter alia, binoculars, numerous magazines, photographs and video cassettes of a pornographic nature, ropes and adhesive tapes, as well as women’s underwear.
41. Consequently, the Diez prison authorities ordered that all relaxations of the applicant’s detention be removed on the ground that the outcome of the search had shown that there was a risk that he would abuse releases from prison in order to commit further serious crimes.
42. The resident psychologist at Diez prison, in a statement of 4 July 2002, pointed out that the applicant had stood the test of previous relaxations of detention and that the removal of his privileges implied the loss of his apartment, employment, personal environment outside prison and of all existing social perspectives. However, while the fact that the applicant had abused his journeys to work and the materials found in his flat did not constitute a clear indication for an acute risk of recidivism, the recent developments had made a reliable positive prognosis for the applicant even more difficult.
43. On 10 February 2003, the Koblenz Regional Court rejected the applicant’s request to have the relaxations of his detention reinstated. The Regional Court found that the prison authorities’ decision to remove the applicant’s privileges had been justified for the protection of the safety interest of the public. Considering the expert opinions rendered in the course of the applicant’s lengthy detention and taking into account that a significant amount of pornographic material had been seized in the applicant’s flat, the court was of the opinion that there remained a considerable risk that the applicant may reoffend.
44. The applicant’s appeal against the Regional Court’s decision was rejected by the Koblenz Court of Appeal on 10 June 2003 as inadmissible. On 11 July 2003 the applicant lodged a constitutional complaint. No further information was submitted to the Court in relation to the proceedings before the Federal Constitutional Court in this respect.
45. A subsequent request for reinstatement of relaxations of the applicant’s detention of 17 January 2007 was rejected by the Diez prison authorities on 16 January 2008. The prison authorities conceded that the applicant’s conduct since the removal of previous relaxations of his detention in June 2002 had been irreproachable. He had worked in the prison’s locksmith’s shop and maintained extensive contacts with the outside world like, inter alia, with his former employer and colleagues as well as his former therapist. The fact that he had also stood the test of several years of relaxations of his detention prior to 2002, the long duration of his imprisonment as well as his advanced age also were arguments in favour of granting him the right to unsupervised releases from prison. However, the applicant’s unaltered denial of his deeds and the fact that he trivialised his sexual deviation prevented any perspective of therapeutic progress. In this context the prison authorities also referred to an expert opinion obtained on 31 October 2005 stating that in view of the high remaining risk of recidivism relaxations of the applicant’s detention were only justifiable if combined with continuous and close monitoring. Accordingly, the prison authorities concluded that the protection of the rights at stake outweighed the applicant’s interest in social reintegration.
Ever since the applicant was only granted occasional supervised releases from prison.
46. By written submissions of 18 December 2009 the applicant again requested that the remainder of his life sentence be suspended on probation and asked the Koblenz Regional Court to obtain an expert opinion on the likelihood that he would commit further serious offences if released. In a statement of 29 March 2010, the Diez prison authorities opposed the applicant’s release on probation since he still did not show any insight into the crimes.
47. By a decision of 14 May 2010 the Regional Court commissioned the expert opinion and appointed an expert proposed by the applicant. The expert opinion was rendered on 22 September 2010. The expert pointed out that leading forensic psychiatrists had established that the risk of recidivism following release did not depend on the offender’s insight into the offence committed. The expert therefore concluded that the fact that the applicant insisted on his innocence could not have a negative impact on his legal prognosis. However, there was nothing to establish that the applicant’s character had matured since he had committed the crimes or that any therapeutic progress had been made. It therefore remained impossible to assess the potential risk of recidivism, in particular in the long term, and it was unlikely that future expert opinions would come to a different assessment. The expert held that relaxations of the applicant’s detention, such as unsupervised releases from prison could be reinstated with a view to preparing the applicant’s placement in supervised accommodation (Betreutes Wohnen). Even if integrated in such supervised accommodation it would be necessary to closely monitor the applicant and provide counselling as regards his sexual behaviour.
48. On 15 November 2010 the Koblenz Regional Court, after hearing the applicant as well as the expert and having regard to the prison authorities’ statement of 29 March 2010, again rejected the applicant’s request that his life sentence be suspended on probation and held that a further similar request would be inadmissible if made within a period of two years.
49. The Regional Court, referring to the principles set out in the Federal Constitutional Court’s decision of 8 November 2006 with respect to the proportionality of the continued execution of a life sentence, concluded that the applicant’s continued detention was still justified. In its assessment the Regional Court referred in detail to the various expert opinions rendered over the years, in particular the expert opinion of 22 September 2010. While taking into account the significant duration of the applicant’s detention for meanwhile more than 40 years and his good conduct on the one hand, the court also considered the particular brutality characterising the crimes and the fact that the applicant did not show any insight into the deeds and his sexual deviation. The court nevertheless pointed out that the principle of proportionality required granting the applicant an opportunity to show that he was able to stand the test of relaxations of his detention and to improve his criminal prognosis. It therefore supported the expert’s proposal that closely monitored relaxations of the applicant’s detention be granted and held that prior to a possible placement of the applicant in supervised accommodation he would have to prove during a period of two years that he was capable of dealing with situations of conflict in a sexual context outside prison with a view to preparing a possible release on probation.
50. It appears that since 26 July 2011 the applicant has been granted the right to unsupervised releases from prison twice a week.
51. Article 1 § 1 of the German Basic Law (Grundgesetz) provides that human dignity shall be inviolable and that to respect and protect it shall be the duty of all State authority. Article 2 § 2 stipulates that the freedom of a person shall be inviolable and may be interfered with only on a statutory basis.
52. Pursuant to Article 211 of the Criminal Code (Strafgesetzbuch), the intentional killing of a person is to be classified as murder if certain aggravating elements are present. A murderer under this provision is any person who kills another person for pleasure, for sexual gratification, out of greed or otherwise base motives, by stealth or cruelly or by means that pose a danger to the public or in order to facilitate or to cover up another offence.
53. Murder is punishable by life imprisonment. A declaration by the sentencing court that the defendant’s guilt is of a particular gravity may, inter alia, have a bearing on a subsequent decision regarding suspension of the latter part of the defendant’s prison sentence on probation.
54. Article 57(a) § 1 in conjunction with Article 57 of the Criminal Code stipulates that the court is to suspend the remainder of a life sentence on probation if the convicted person has served fifteen years of his sentence, the particular gravity of the defendant’s guilt does not warrant the continued execution of the sentence and provided that a suspension on probation can be justified while considering the safety interest of the public. In its assessment whether probation shall be ordered the courts shall take into account the personality of the convicted person, his past life, the circumstances of his crime, the extent to which the legal interest would be threatened in the event of recidivism, the conduct of the convicted person while serving his sentence, his living conditions and the expected effects the suspension of the sentence could have on him.
55. Following expiry of the minimum term of fifteen years, the courts decide on the suspension of the remainder of a convict’s life sentence ex officio. Furthermore they are under an obligation to decide on related requests by the applicant, his counsel or the prosecution authorities which may be lodged at any time in the course of an ongoing detention.
56. Article 454 § 1 of the Code of Criminal Procedure (Strafprozessordnung) provides that the decision whether execution of the remainder of a prison sentence is to be suspended on probation (sections 57 to 58 of the Criminal Code), as well as the decision that prior to expiry of a certain time limit an application by the convicted person to this effect shall be inadmissible, shall be given by court order. The public prosecution office, the convicted person and the penal institution shall be heard. According to paragraph 2 of this provision the court shall obtain the opinion of an expert concerning the convicted person if it considers suspending execution of the remainder of a sentence of life imprisonment. The opinion shall, in particular, express a view as to whether there remains a risk that the convicted person is still posing the danger apparent from the offence of which he was convicted.


ITEMID: 001-57967
LANGUAGEISOCODE: ENG
RESPONDENT: PRT
BRANCH: CHAMBER
DATE: 1995
DOCNAME: CASE OF VELOSA BARRETO v. PORTUGAL
IMPORTANCE: 2
CONCLUSION: No violation of Art. 8;No violation of P1-1
TEXT: 8. Mr Francisco Velosa Barreto, a Portuguese national born in 1954, is an office worker. He married in April 1979 and he and his wife have one child, born on 7 June 1980.
9. When the applicant was still single he lived with his parents. Since his marriage he has lived in a house rented by his parents-in-law. One of his wife's brothers and two of her aunts have also lived there at various times in that period. The house, in Funchal (Madeira), has four bedrooms, a kitchen, a living-cum-dining room and a basement.
10. In November 1982 Mr Velosa Barreto inherited from his parents a house also situated in Funchal. This house, which has been let for residential use to E.R. since 23 June 1964, has three bedrooms, a kitchen and a bathroom. The rent, which had initially been fixed at 1,200 escudos (PTE), was PTE 1,500 at the time when the proceedings began.
11. On 6 April 1983 the applicant and his wife brought proceedings against E.R. and his wife in the Funchal Court of First Instance. Relying on Articles 1096 and 1098 of the Civil Code, they asked the court to terminate the lease on the ground that they needed to occupy the property as their own home.
12. The Funchal Court of First Instance found against the applicant and his wife on 13 March 1989. It held that one of the statutory requirements for termination had not been satisfied, since the applicant had not established facts which proved a real need to occupy the house himself.
The reasons given by the judge included the following considerations:
"A landlord's need to terminate a lease must be assessed mainly in the light of his family circumstances, his living conditions and/or his occupational status at the time when the action is brought or foreseeable in the immediate future.
In that connection, the following facts have already been established: that 'since his marriage, in April 1979, Mr Velosa Barreto has lived with his parents-in-law in the Travessa do Caetano, [Funchal]'; that 'Mrs Velosa Barreto's parents, Mr and Mrs Velosa Barreto and their son, one of Mrs Velosa Barreto's brothers and two of her aunts ... lived in the house'; that 'the plaintiffs' house has three bedrooms, a kitchen and a bathroom'; that 'the house where the plaintiffs live has four bedrooms on the first floor, a kitchen and a living-cum-dining room on the ground floor and a basement'; that 'Mr Velosa Barreto's parents-in-law, who are at present the sole occupants, with Mr and Mrs Velosa Barreto and their son, of the house in the Travessa do Caetano, are resigned to the presence in their house of the plaintiffs and their son, since they have nowhere else to live'; and that 'the plaintiffs both work in Funchal'.
It should be noted that Mrs Velosa Barreto's two aunts and her brother no longer live in the house where the plaintiffs are now living and that this has increased the available living space and privacy that all human beings need. The plaintiffs' living conditions are better now than they were when the action was brought, since they even have a bedroom for their son.
Moreover, the plaintiffs did not succeed in proving, as the onus was on them to do, that the relations between themselves and Mrs Velosa Barreto's parents were permanently strained and conflictual. What is certain, however, is that no link whatsoever has been established between their son's illness and their living conditions in that house.
It might be said - and after all it has been proved that the plaintiffs live with Mrs Velosa Barreto's parents, 'who are resigned to the presence in their house of the plaintiffs and their son, since they have nowhere else to live' - that in view of the adage 'When a man marries he needs a house', cited by Mr Velosa Barreto in his first application, the existence of a marriage should be sufficient to establish a need to recover possession of the rented property in order to live there.
...
However, each case is unique. Regard being had to the facts found to have been established and those asserted by the plaintiffs in support of their claims, but not established, and given that the concept of the need to occupy must be interpreted as a state of necessity, to be objectively assessed on the basis of a reasonable criterion, in the light of everyday experience, it cannot be denied that the facts as a whole do not support the conclusion that the plaintiffs need the property in question in order to live there.
Their living conditions would certainly be better and more comfortable in the house let to the defendants, but the real need required by case-law does not exist, nor is this a case where it is absolutely necessary or essential for the plaintiffs to recover possession of the accommodation.
It follows that, although the other conditions in Article 1098 of the Civil Code have been satisfied, the plaintiffs' application must be considered inadmissible, since they have not established that they are entitled to terminate the lease under Article 1096 para. 1 (a).
In conclusion, without finding it necessary to add any further considerations, I declare unfounded, for lack of evidence, the present action for termination of the lease and eviction of the tenant (processo especial de despejo), and find against the plaintiffs ..."
13. On 6 April 1989 Mr Velosa Barreto appealed against this judgment to the Lisbon Court of Appeal. Referring to the underlying intention of the legislation concerning the right to terminate a lease, he argued that he and his family had the right to live in a home they did not have to share with anyone.
14. On 11 October 1990 the Court of Appeal upheld the impugned judgment. It held that the house of the applicant's parents-in-law was large enough for all the people who lived in it, including the applicant, his wife and his son. There was therefore no real need for Mr Velosa Barreto to live in the house he owned.
The Court of Appeal gave the following reasons for its decision:
"In order to establish need, plaintiffs must cite specific facts which, once proved, establish the existence of a real, serious and present need, adducing weighty rather than purely hypothetical arguments. It is not sufficient to desire, to wish or to claim.
...
In order to be able to exercise their right [to terminate the lease], the applicants must adduce evidence of those facts (Article 342 para. 1 of the Civil Code).
...
... it is established that:
(a) the house where the plaintiffs live has four bedrooms on the first floor, a kitchen and a living-cum-dining room on the ground floor and a basement;
(b) at present that house is occupied by Mr Velosa Barreto's parents-in-law, the plaintiffs and their son, that is five people altogether; and
(c) Mr Velosa Barreto's parents-in-law are resigned to the presence in the house of the plaintiffs and their son.
As the house has four bedrooms, the plaintiffs can occupy one room and their son another.
The house has enough bedrooms for all the members of the family to be able to live there.
Each couple has a bedroom and the plaintiffs' son has his. And there is still one bedroom left over.
The judgment must reflect the situation at the conclusion of the evidence and argument (Article 663 para. 1 of the Code of Civil Procedure).
Since it has not been proved that the plaintiffs are in a precarious situation, the fact that they live with Mrs Velosa Barreto's parents, albeit by their favour, is manifestly insufficient to prove the need required by Article 1096 of the Civil Code ... Moreover, the plaintiffs have not proved that there was tension which made it intolerable for them all to live in the same house.
Derogation from the general principle and eviction of the tenant for the benefit of the landlord are possible only where it appears to be absolutely necessary, for weighty reasons, for the landlord to live in the property (Article 1095 of the Civil Code).
In the light of the foregoing considerations, and because the plaintiffs have not proved need as set out above and as this court interprets it, the appeal is inadmissible and the judgment is upheld."
15. No appeal lay against the above judgment.
16. The following is a translation of the main provisions of the Civil Code applicable at the material time to the termination of tenancy contracts on residential property:
... A landlord shall not have the right to terminate a [tenancy] contract, which shall be tacitly renewed unless terminated by the tenant in accordance with Article 1055."
1. A landlord may seek termination of a [tenancy] contract on its expiry in the following cases:
(a) when he needs (necessite) the property in order to live there or to build his home there.
..."
1. The right of a landlord to seek the termination of a [tenancy] contract in order to occupy the property as his home shall be subject to the following conditions:
(a) he must have owned ... the property for more than five years or have acquired it by inheritance, in which case this qualifying period shall not apply;
(b) he must not have been in occupation of another residence in the area where the property covered by the [tenancy] contract is situated, either as owner or tenant, for more than one year; and
(c) he must not previously have sought to terminate the contract.
..."
17. According to established case-law (Supreme Court judgments of 15 December 1981 and 12 July 1983), a landlord's right to terminate a lease in order to occupy the property as his home may be exercised only when, in addition to the conditions laid down in Article 1098 of the Civil Code, the condition laid down in Article 1096 para. 1 (a), namely the landlord's real need to live in the property, has been satisfied.
18. These rules were amended by the legislative decree of 15 October 1990, but this did not introduce any fundamental change regarding the possibility of termination.
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-98089
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: MELANICHI v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
TEXT: The applicants, Mr Valeriy Aleksandrovich Melanich (“the first applicant”) and Mrs Valentina Ivanovna Melanich (“the second applicant”), are Ukrainian nationals who were born in 1942 and 1944 respectively and live in Kyiv. The respondent Government are represented by their Agent, Mr Y. Zaytsev.
In September 2004 the applicants’ neighbour, Mrs P., started reconstruction work on her apartment. The work was completed on an unspecified date in 2005.
On 5 October 2005 the applicants instituted proceedings in the Svyatoshynskyy District Court of Kyiv (“the District Court”) against Mrs P. claiming compensation for pecuniary damage. In particular, the applicants alleged that the work had caused partial peeling of the parquet floor in the apartment and damage to tiles in the bathroom.
On 31 October 2005 the District Court, following a request by the applicants, ordered a forensic building report to be prepared by the Kyiv Institute for Forensic Examinations (“the Institute”). The court ruled that the fee for the examination should be paid by the applicants.
By a letter of 22 December 2005 the director of the Institute informed the District Court that if the fee was not paid within one month the examination would be cancelled. Since the court failed to inform the applicants about the above letter, on 26 January 2006 the director of the Institute sent the case file back to the court without examining the request.
On 20 February 2006 the District Court again ordered a forensic building report to be prepared by the Institute. The court suspended the proceedings pending its conclusions.
The report reached the court on 20 December 2007.
On 15 January 2008 the court resumed the proceedings.
In the period from 15 January to 9 October 2008 the court scheduled some eleven hearings. Six of them were adjourned because Mrs P. had failed to appear before the court and one because the judge was involved in other proceedings. One hearing was adjourned following an application by the first applicant. The District Court sent several requests to the local tax office, the Minister of the Interior and other institutions in order to ascertain Mrs P.’s whereabouts.
On 7 October 2008 the applicants slightly amended their claims.
On 9 October 2008 the District Court dismissed the applicants’ claims as unsubstantiated.
On 4 December 2008 the Kyiv City Court of Appeal upheld that judgment.
The applicants appealed in cassation. On 23 January 2009 the Supreme Court declined to consider the applicants’ appeal in cassation because the applicants had failed to comply with procedural formalities. The court gave the applicants a time-limit for rectifying the shortcomings. On an unspecified date the applicants rectified the shortcomings and re-submitted the appeal in cassation.
On 2 March 2009 the Supreme Court refused the applicants’ request for leave to appeal in cassation as unsubstantiated.
In August 2005 the applicants instituted proceedings in the District Court against Mrs P., seeking compensation for non-pecuniary damage allegedly caused by noise and vibration resulting from the reconstruction work.
On 20 October 2005 the court ruled in part for the applicants, awarding 1,008.50 Ukrainian hryvnias (UAH) to the first applicant and UAH 2,500 to the second applicant. The applicants received the sums on 2 February and 10 July 2007 respectively.
On an unspecified date the Municipal Enterprise Responsible for Maintenance of Housing Facilities instituted proceedings against Mrs P., requesting the court to order her to undo the reconstruction work that she had carried out in her apartment.
On 10 November 2006 the District Court allowed this claim. The judgment remains unenforced.
On 21 December 1987 the Kyiv Military Garrison Court acquitted Mr Z. of inflicting bodily injuries on the second applicant, holding that there was no corpus delicti.
On 5 February 1988 the Kyiv Military District Court quashed that decision and remitted the case to the Garrison Military Tribunal, which, on 29 April 1988, acquitted Mr Z.
On 8 July 1988 the Kyiv Military District Court upheld that judgment, which therefore became final.


ITEMID: 001-80840
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2007
DOCNAME: SAPAN v. TURKEY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Orhan Sapan, is a Turkish national who was born in 1963 and lives in Istanbul. He was represented before the Court by Mr E. Kanar, a lawyer practising in Istanbul. The Government did not appoint an agent to represent them.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of the publishing company “Grandis İletişim Tanıtım ve Halkla İlişkiler Ltd (Chiviyazıları Yayınevi)”. In 2003 he published the Turkish translation of the book entitled “Juliette - Vice Amply Rewarded” by the Marquis de Sade.
On 3 April 2003 the Istanbul Security Directorate laid a criminal information regarding the book, alleging that it undermined public morals, in breach of Article 426 of the Criminal Code.
On 7 April 2003, at the request of the Kadıköy Public Prosecutor, the judge at the Kadıköy Magistrate Criminal Court ordered the seizure of copies of the book, holding that it provoked and exploited feelings and thus undermined public morals. On the same day, the decision of the criminal court was communicated to the security directorates, criminal courts and public prosecutors’ offices of the district and it was notified to the applicant.
The seizure protocol drafted by the police and signed by an employee of the publishing company on 8 April 2003, recorded that copies of the book were not found in the publishing house, as they had already been distributed to the book shops. According to the applicant the latter, informed of the seizure order, returned the copies of the book to him.
On 8 April 2003 after taking the applicant’s statements, the Kadıköy Public Prosecutor issued an advance payment order for 4,542,890,000 Turkish Liras (TRL). According to this order, in case of payment of the due amount within ten days from the date of issue, no criminal charges would be brought against the applicant.
On 15 April 2003 the applicant filed an objection against the seizure order, arguing that there was an unjustified interference with his rights guaranteed by Articles 9 and 10 of the Convention. On 17 April 2003 the Kadıköy Criminal Court dismissed his objection.
The applicant did not pay the amount due. Consequently, on 24 April 2003 Kadıköy Public Prosecutor filed an indictment, charging the applicant under Article 426 of the Criminal Code, for publishing indecent or obscene material.
On 30 October 2003 the Kadıköy Criminal Court of First Instance noted that, following an amendment which had come into force on 7 August 2003, literary works were excluded from the sphere of application of Article 426 of the Criminal Code. It consequently acquitted the applicant and ordered the restitution of the books.
Article 426 of the Turkish Criminal Code provided that those who published offensive, indecent or obscene materials and thereby tended to corrupt public morals, would be sentenced to a fine.
Following the adoption of law no. 4963, which came into force on 7 August 2003, Article 426 of the Criminal Code was amended. Accordingly, scientific and artistic works and any work of literary value was excluded from the sphere of application of the Article.