K.-F. v. GERMANY - 25629/94 [1997] ECHR 97 (27 November 1997)

Court of Appeal had had to examine the issue of the lawfulness of his arrest and detention in the same way as it would have done if he had opted for the other remedies referred to by the Government. 46. The Court reiterates that the purpose of Article 26 is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Convention institutions. Thus the complaint to be submitted to the Commission must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits (see, for example, the Ankerl v. Switzerland judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V, p. 1565, § 34). However, the only remedies that must be exhausted are those that are effective and capable of redressing the alleged violation (see, among other authorities, the Remli v. France judgment of 23 April 1996, Reports 1996-II, p. 571, § 33), and Article 26 of the Convention must also be applied with some degree of flexibility and without excessive formalism (see, for example, the Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 17, § 30, and the Ankerl judgment cited above, ibid.). 47. In the instant case the Court notes that, both in his complaint lodged with the Koblenz Public Prosecutor’s Office and in his applications to the Koblenz Court of Appeal, the applicant mentioned that his arrest and detention at Cochem-Zell police station had been unlawful (see paragraphs 20 and 23 above). In his appeal to the Federal Constitutional Court against the decisions of the Court of Appeal, he alleged a violation of his fundamental rights (see paragraph 33 above). The applicant therefore raised his complaint under Article 5 § 1 of the Convention in substance in the German courts. 48. Accordingly, it remains for the Court to determine whether lodging a complaint against the police officers involved in the arrest and detention and then applying to the Court of Appeal to have a prosecution brought against them amounted to an effective and adequate remedy for the applicant’s complaint. 49. In that respect the Court, like the Commission, notes that in order to establish whether the police officers had been guilty of false imprisonment, the Koblenz Court of Appeal considered the question of the lawfulness of Mr K.-F.’s arrest and detention. In its judgment of 21 May 1992 (see paragraph 24 above) it held, inter alia , as follows: “There would have been sufficient cause to prosecute for false imprisonment (Article 239 of the Criminal Code) if the accused police officers had unlawfully taken the applicants [Mr and Mrs K.-F.] to the police station and held them there. The investigation did not disclose any such unlawful act.” The Court of Appeal then sought to determine whether the police officers had arrested the applicant lawfully on the basis of suspected rent fraud ( Einmietbetrug ) and concluded: “The arrest was accordingly, on the facts, likewise justified.” It went on to consider whether there were valid reasons for holding the applicant at the police station and concluded: “The applicants’ detention at the police station ( Festhalten auf der Wache ) was therefore justified.” 50. It is true that the Court of Appeal left open the question whether the applicant’s detention until the following morning had been necessary. However, in its judgment of 30 November 1993 (see paragraph 32 above) it held that Mr K.-F. had been detained for more than the maximum statutory period of twelve hours permitted under Article 163 c § 3 of the Code of Criminal Procedure (see paragraph 35 above) for checking a person’s identity. 51. The Court does not doubt that means other than the criminal proceedings the applicant chose to institute were in principle available for obtaining a ruling on the lawfulness of his detention. It considers, however, that in view of the fact that the applicant raised his complaint under Article 5 § 1 in substance and the Court of Appeal examined it at least in part, it cannot be required of him that he should have used other remedies. 52. That being so, the Court, like the Commission, considers that the remedy used by Mr K.-F. was effective and adequate to deal with his complaint. The preliminary objection must consequently be dismissed. B. Merits of the complaint 53. In the applicant’s submission, both his arrest and his detention were unlawful as he had not committed any offence, disputes over the amount of rent belonging, in his view, to the realm of civil law. Furthermore, he had not made any attempt to flee: none of his suitcases had been packed and his personal effects and those of his wife were still in the cupboards and drawers of the rented flat when the police arrived. Nor had he sought at any stage to conceal his identity, having, indeed, supplied the police with all necessary information. In any event, the time he had spent in detention had exceeded the statutory maximum by forty-five minutes. 54. The Government drew a distinction between, on the one hand, the applicant’s arrest and detention from 9.45 p.m. on 4 July 1991 to 9.40 a.m. on 5 July 1991 and, on the other hand, the recording of his personal details between 9.45 a.m. and 10.30 a.m. on 5 July 1991. The arrest and detention were justified not only under Article 163 b § 1, first sentence, of the Code of Criminal Procedure (establishing the identity of a person suspected of an offence), but also under Article 127 § 1, first sentence (risk of absconding), and Article 127 § 2 (conditions for issue of an arrest warrant satisfied) (see paragraph 35 above). The maximum limit of twelve hours applied only to detention under the first of those provisions. Under the other two provisions, the person detained had to be brought before a judge at the latest on the day after his arrest, in accordance with Article § 1, first sentence (see paragraph 35 above), and in regard to that requirement the statutory period had not been exceeded. Furthermore, Mr K.-F.’s personal details had been recorded by virtue of Article 81 b of the Code of Criminal Procedure (see paragraph 35 above) and Article 11 § 1 of the Rhineland-Palatinate Police Administration Act (see paragraph 36 above). 55. The Commission expressed the view that the applicant had been arrested and detained on reasonable suspicion of having committed an offence, within the meaning of Article 5 § 1 (c), and for the purpose set out in that Article. Furthermore, it found nothing to persuade it that the relatively minor delay of forty-five minutes in releasing the applicant had resulted in his being arbitrarily deprived of his liberty contrary to the object and purpose of Article 5 § 1. 56. The Court must firstly consider whether the applicant’s arrest and detention were based on “reasonable suspicion” of his having committed an offence. 57. In this connection it reiterates that the reasonableness of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 § 1 (c). Having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned might have committed the offence (see the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, p. 16, § 32). However, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at a later stage of the process of criminal investigation (see the Murray v. the United Kingdom judgment of 28 October 1994, Series A no. 300-A, p. 27, § 55). 58. In the present case Mrs S., the landlady, had informed the police that Mr and Mrs K.-F. had rented her flat without intending to perform their obligations as tenants and were about to make off without paying what they owed (see paragraph 10 above). After initial inquiries had revealed that Mr and Mrs K.-F.’s address was merely a Post Office box and that Mr K.-F. had previously been under investigation for fraud (see paragraph 12 above), the police arrested the couple at 9.45 p.m. on 4 July 1991 and took them to the police station so that their identities could be checked (see paragraph 13 above). In a report drawn up at 11.30 p.m. the police stated that they strongly suspected Mr and Mrs K.-F. of rent fraud and that there was a risk that they would abscond. 59. Having regard to those circumstances, the Court can, in principle, follow the reasoning of the Koblenz Court of Appeal, which in its judgments of 21 May 1992 and 30 November 1993 (see paragraphs 24 and 32 above) held that the police officers’ suspicions of rent fraud and the danger that Mr K.-F. would abscond were justified. Consequently, the applicant was detained on reasonable suspicion of having committed an offence, within the meaning of Article 5 § 1 (c). 60. It is also a requirement under that provision that the arrest and detention be effected for the purpose of bringing the person concerned before the competent legal authority. 61. The Court points out in this connection that the fact that the applicant was neither charged nor brought before a court does not necessarily mean that the purpose of his detention was not in accordance with Article 5 § 1 (c). The existence of such a purpose must be considered independently of its achievement and sub-paragraph (c) of Article 5 § 1 does not presuppose that the police should have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant was in custody (see the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 29, § 53). 62. In the instant case there is nothing to suggest that the police inquiries were not conducted in good faith or that the applicant’s arrest and detention, which were decided after consultation of the public prosecutor’s office, were effected for a purpose other than to complete the inquiries by checking the identity of the applicant and investigating the allegations made against him. To that end, Mr K.-F. and Mrs S., the landlady, were questioned further during the morning of 5 July 1991. Accordingly, it may legitimately be supposed that, had it been possible to confirm the suspicions of rent fraud, the applicant would have been brought before the relevant judicial authority. The Court therefore finds that the deprivation of liberty in issue pursued the purpose indicated in paragraph 1 (c). 63. Lastly, the Court must determine whether the applicant’s arrest and detention were “lawful”, including whether they were effected “in accordance with a procedure prescribed by law”. It reiterates that the Convention here refers essentially to national law and lays down an obligation to comply with its substantive and procedural provisions, but also requires that any measure depriving the individual of his liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see, for example, the Lukanov v. Bulgaria judgment of 20 March 1997, Reports 1997-II, pp. 543–44, § 41; and the Giulia Manzoni v. Italy judgment of 1 July 1997, Reports 1997-IV, p. 1190, § 21). In order to resolve that issue, the Court will consider in turn the various grounds for arrest and detention put forward by the Government (see paragraph 54 above). 64. With respect to the danger of the applicant’s absconding, the Court observes that it does not follow from the judgment of the Koblenz Court of Appeal (see paragraph 32 above) that that court regarded the danger of absconding as a valid reason for keeping the applicant in custody for more than the permitted twelve-hour period. Furthermore, there is nothing in the case file capable of justifying continued detention on that basis. In deciding to discontinue the proceedings, the Koblenz Public Prosecutor’s Office likewise found that there was no concrete evidence to show that Mr and Mrs K.-F. had sought to make off surreptitiously (see paragraph 19 above). 65. As to the ground for arrest set out in Article 127 § 2 of the Code of Criminal Procedure (see paragraph 35 above), it is not apparent from the file that the police relied on that ground as the basis for the arrest and detention or that the strict conditions laid down in that provision were satisfied. On the latter point the Court agrees with the Commission’s assessment. In any event, even if that ground had existed, it would have ceased to do so when the Hanau prosecutor informed the police that he did not intend to issue a warrant for Mr K.-F.’s arrest, in other words at 9.25 a.m. on 5 July 1991. 66. There remains to be considered the ground relied on by the Koblenz Court of Appeal, based on Article 127 § 1 and Article 163 b of the Code of Criminal Procedure, which permit, for the purposes of checking identity, the arrest and detention of a person caught in the act of committing an offence if his identity cannot be immediately established (see paragraph 35 above). 67. The Court observes, firstly, that the Court of Appeal, a national court which is in a better position than the Convention institutions to verify compliance with domestic law, found that the applicant’s arrest and detention were lawful (see paragraph 24 above). The Court sees no reason to come to a different conclusion. 68. The Court of Appeal left open the question whether it was necessary to hold the applicant until the following morning “as, on grounds of intent at least, the potential defendants’ conviction on a charge of false imprisonment [was] unlikely”. It has been established, however, that the police continued to make inquiries throughout the night and up until the applicant’s release, partly in order to check whether an arrest warrant had been issued against him (see paragraphs 14–16 above). Having regard to those circumstances, the Court concludes that the applicant’s detention from 9.45 p.m. on 4 July to 9.45 a.m. the following day was justifiable. 69. On the other hand, it notes that the length of time the applicant spent in detention exceeded the legal maximum laid down by Article 163 c § 3 of the Code of Criminal Procedure (see paragraph 35 above). The Koblenz Court of Appeal came to the same conclusion in its judgment of 30 November 1993 (see paragraph 32 above): “A person affected by a measure taken under Article 163 b for the purposes of checking his identity cannot be deprived of his liberty for more than twelve hours in all. The applicant was detained at 9.45 p.m. on 4 July 1991 (page 19) and released at 10.30 a.m. on 5 July 1991 (page 20). For this detention, which lasted for more than twelve hours, Superintendent Blang was responsible.” 70. The Court reiterates in this connection that the list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see, as the most recent authority, the Giulia Manzoni judgment cited above, p. 1191, § 25). 71. It is true that the Court has accepted that, in certain circumstances, there may be some limited delay before a detained person is released. However, this has been in cases where the period of detention was not laid down in advance by statute and ended as a result of a court order. Practical considerations relating to the running of the courts and the completion of special formalities mean that the execution of such a court order may take time (see the Quinn v. France judgment of 22 March 1995, Series A no. 311, p. 17, § 42, and the Giulia Manzoni judgment cited above, p. 1191, § 25). 72. However, in the instant case, the maximum period of twelve hours’ detention for the purposes of checking identity was laid down by law and was absolute. Since the maximum period of detention was known in advance, the authorities responsible for the detention were under a duty to take all necessary precautions to ensure that the permitted duration was not exceeded. That applies also to the recording of Mr K.-F.’s personal details, which – being included among the measures for checking identity – should have been carried out during the period of detention allotted for that purpose. 73. Having regard to those factors, the Court holds that, because the maximum period laid down by law for detaining the applicant was exceeded, there has been a breach of Article 5 § 1 (c). II. APPLICATION OF ARTICLE 50 OF THE CONVENTION 74. Article 50 of the Convention provides: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 75. Mr K.-F. claimed 3,134.10 German marks (DEM) for pecuniary damage in respect of belongings unlawfully seized by the police and his landlord and landlady, Mr and Mrs S. He also sought DEM 30,000 for non-pecuniary damage on account of the serious consequences which the events of the night of 4 to 5 July 1991 had had on his, his wife’s and his son’s lives. 76. The Government maintained that the amounts claimed were excessive and that there was no causal link between any possible breach of the Convention and the alleged damage. 77. The Court notes that there is no causal link between the violation complained of and the alleged pecuniary damage. As to any non-pecuniary damage, the Court considers that the finding of a violation of Article 5 § 1 (c) constitutes sufficient compensation. B. Costs and expenses 78. The applicant also claimed DEM 11,280 for costs and expenses incurred in the proceedings before the national courts and the Commission, and DEM 2,300 for the proceedings before the Court. 79. In the Government’s submission, the amounts claimed were excessive and unfounded as it did not appear that the applicant had incurred them in order to prevent or to have redressed a breach of the Convention. 80. On the basis of the information in its possession and of its relevant case-law, the Court, making its assessment on an equitable basis, awards the applicant DEM 10,000. C. Default interest According to the information available to the Court, the statutory rate of interest applicable in Germany at the date of adoption of the present judgment is 4% per annum. FOR THESE REASONS, THE COURT 1. Dismisses by seven votes to two the Government’s preliminary objection; 2. Holds unanimously that there has been a violation of Article 5 § 1 (c) of the Convention; 3. Holds unanimously that the present judgment constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered; 4. Holds unanimously (a) that the respondent State is to pay to the applicant, within three months, 10,000 (ten thousand) German marks in respect of costs and expenses; (b) that simple interest at an annual rate of 4% shall be payable on that sum from the expiry of the above-mentioned three months until settlement; 5. Dismisses unanimously the remainder of the claim for just satisfaction. Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 27 November 1997. Signed : Rolv RYSSDAL President Signed : Herbert PETZOLD Registrar In accordance with Article 51 § 2 of the Convention and Rule 55 § 2 of Rules of Court B, the partly dissenting, partly concurring opinion of Mr Bernhardt, joined by Mr Lōhmus, is annexed to this judgment. Initialled : R. R. Initialled : H. P. PARTLY DISSENTING, PARTLY CONCURRING OPINION OF JUDGE BERNHARDT, JOINED BY JUDGE LŌHMUS I. In my opinion, local remedies were not exhausted in the present case, and the case should have been dismissed for this reason by the institutions of the European Convention on Human Rights. The applicant was arrested by the German police on 4 July 1991 at 9.45 p.m., and he was kept in police custody until 10.30 a.m. on 5 July. The arrest seems to have been based on two legal provisions: (1) Article 127 § 2 of the Code of Criminal Procedure (the suspicion that Mr K. F. had committed an offence and the risk that he would abscond); (2) Article 127 § 1 in conjunction with Article 163 b (the need to identify persons). On reading, several years after the event, the files available in Strasbourg, one may have doubts as to whether the arrest and its duration were really necessary and could be justified under one or both of these provisions. In order to clarify the lawfulness of the arrest, adequately and finally, the applicant could and should have instituted appropriate proceedings available under German law. These possibilities are mentioned in paragraphs 37 and 38 of the present judgment. The applicant deliberately chose a different procedure; he tried to instigate criminal proceedings against the police officers and certain public prosecutors. These proceedings did not concern primarily the lawfulness of the arrest, but the question whether there was sufficient suspicion that the officials had intentionally committed illegal acts. The decisions quoted in paragraphs 24 and 32 of the present judgment show that ultimately the lack of personal guilt was decisive and that for that reason no criminal proceedings were instituted. The central question of the objective legality of the initial detention was answered only incidentally, and that of its continuation overnight remained entirely open; it would inevitably remain open if no criminal proceedings against the police officers could be instituted for other reasons. It is the essence of the requirement that domestic remedies be exhausted that national courts have the opportunity to investigate and if necessary redress violations of national law. This the German courts were not able to do in the present case on the basis of the criminal allegations against the officers concerned, which were therefore not an adequate alternative. II. Since the majority of the Court decided this preliminary question differently, I feel obliged to base my opinion concerning the merits of the case, the violation of Article 5 § 1 of the Convention, on the assumption that domestic remedies were exhausted. It was clear at 9.25 a.m. on 5 July 1991 (see paragraph 16 of the judgment) that continued detention was no longer envisaged, and this had the consequence that holding the applicant in custody could not be justified under Articles 112 or 127 § 2 of the German Code of Criminal Procedure. Article 163 c, on the other hand, prohibits detention for the purpose of checking identity for more than twelve hours. Admittedly, the release of the applicant on 5 July at 10.30 a.m. occurred only a short time after the end of the maximum permissible period; nevertheless, in the actual circumstances even this short time of unjustified detention violated the Convention. One could add that Article163 c permits such an arrest only for the period strictly necessary for identification, and it is difficult to believe that even twelve hours could be considered necessary in the circumstances. [1] . This summary by the registry does not bind the Court. Notes by the Registrar 1. The case is numbered 144/1996/765/962. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission. [2] . Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9. 1. Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), but a copy of the Commission&#8 [2] s report is obtainable from the registry. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII