CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 mai 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The European Commission of Human Rights sitting in private on 5 May 1986, the following members being present:                     MM   C.A. NØRGAARD, President                       G. SPERDUTI                       J.A. FROWEIN                       M.A. TRIANTAFYLLIDES                       G. JÖRUNDSSON                       S. TRECHSEL                       B. KIERNAN                       A. WEITZEL                       J.C. SOYER                       H.G. SCHERMERS                       H. DANELIUS                       G. BATLINER                   Mrs G.H. THUNE                   Sir Basil HALL             Mr H.C. KRÜGER, Secretary to the Commission   Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 25);   Having regard to the application introduced on 3 August 1984 by T.C. against the Federal Republic of Germany and registered on 29 October 1984 under file No. 11215/84;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The applicant is a German citizen born in 1959 and living in Fürth. He is represented by Mr Küfner and others, lawyers practising in Nuremberg.   It follows from the applicant's statements and the documents submitted by him that on the evening of 5 March 1981 a demonstration of young people took place in Nuremberg following a meeting in a so-called communication centre.   In the course of this demonstration cars and other properties were damaged.   The demonstrators later returned to the communication centre which was then surrounded by the police.   In the morning of 6 March 1981 all persons present in the centre were arrested.   They were suspected of having participated in the violent actions.   Among the persons arrested was the applicant who declared, when he was interrogated by the police after his arrest, that he had followed the demonstrators only in order to take some photos of the events.   He had been an observer and not a demonstrator.   In the evening of 6 March 1981 the applicant was brought before the investigating judge M.   The judge issued a warrant of arrest against the applicant stating that there were sufficient reasons to suspect the applicant of having participated in violent acts committed by a crowd of people resulting in damage to property. He had participated in a gathering of about two hundred people marching through the streets and damaging cars and shop windows.   The judge considered that the applicant was likely to abscond in order to avoid punishment and that there was danger of collusion as the applicant belonged to or sympathised with squatters.   On 12 March 1981 the investigating judge examined the question of whether or not detention on remand was justified and interrogated the applicant (Haftprüfungsverfahren).   Subsequent to this hearing he ordered the applicant's release.   The applicant was released on the following day.   On 16 June 1981 the proceedings against the applicant were discontinued for lack of sufficient evidence.   On 24 August 1981, at the applicant's request the Nuremberg District Court (Amtsgericht) ordered that the applicant should be compensated for his detention on remand.   On 19 February 1982 the Public Prosecution (General- staatsanwalt) awarded compensation in the amount of DM 722.65 and refused to acknowledge the applicant's claims in excess of this sum.   The applicant therefore brought an action for damages with the Nuremberg Regional Court (Landgericht) claiming an additional sum of DM 1,155.74.   He alleged that he was wrongly detained on remand;   that on his arrest he was not given the possibility to contact a lawyer and to make statements in regard to the charges levelled against him. Further he argued that judge M who issued the warrant of arrest against him, had under the internal court rules concerning the distribution of cases (Geschäftsverteilungsplan) not been competent to act as investigating judge.   The applicant informed the Regional Court that he also raised these complaints before the Bavarian Constitutional Court.   He argued that his claims were well-founded both under Section 7 (1) of the Act on Compensation for Prosecution Measures (StrEG) and under Art 34 of the Basic Law (GG) in connection with Section 839 of the Civil Code (BGB) for misconduct in office.   On 12 August 1982 the Regional Court ordered the defendant State Bavaria to pay further compensation in the amount of DM 100. Both parties lodged an appeal (Berufung).   On 9 March 1984 the Bavarian Constitutional Court (Verfassungs- gerichtshof) rejected the applicant's constitutional complaint stating inter alia that there was nothing to show that judge M had arbitrarily assumed his competence to issue a warrant of arrest in the applicant's case.   Nor was it arbitrary that the judge used standardised forms in some 140 cases to justify the warrants of arrest without dealing with the declarations made by the applicant at his interrogation by the police.   On 28 May 1984 a group of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) rejected a constitutional complaint against the warrant of arrest and the Bavarian Constitutional Court's decision.   The decision states that the applicant's complaints under Articles 2 (2), 103 (1) and 104 (1) and (3), first sentence, of the Basic Law (GG) are unsubstantiated and therefore inadmissible.   On 30 May 1984 the applicant accepted a friendly settlement in the civil proceedings pending before the Nuremberg Court of Appeal (Oberlandesgericht) concerning his claim for damages.   According to this settlement the defendant State Bavaria accepted to pay DM 1,055.74 and all costs of the proceedings.   The applicant submits that the finding and reasons contained in the Bavarian Constitutional Court's decision caused the State of Bavaria to accept a friendly settlement.   COMPLAINTS   The applicant maintains his complaints raised before the German constitutional courts, namely that he was arbitrarily arrested and detained on remand, and that he was not given adequate opportunity to defend himself after his arrest.   In view of the Commission's decision rejecting Application No. 9997/82 he does not maintain the complaint that judge M was not competent to act as investigating judge.   He invokes Articles 5 and 6 of the Convention (Art. 5, art. 6).   THE LAW   1.       The applicant alleges that his rights under Articles 5 and 6 of the Convention (Art. 5, art. 6) were violated by his arrest and detention on remand from 6 to 13 March 1981.   One of the conditions for the admissibility of an application under Article 25 of the Convention (Art. 25) is that the applicant may claim to be a victim of an action or omission, by a High Contracting Party, which in his view violates his rights under the Convention.   In the present case the applicant complained of his arrest and detention both to the Bavarian Constitutional Court and subsequently to the Federal Constitutional Court as well as to the civil courts dealing with his claim for compensation.   In the civil proceedings the applicant expressly relied on the argument that his arrest and subsequent detention were the result of a misconduct in office (Amtspflichtverletzung).   However, in the civil proceedings the applicant accepted, subsequent to the decisions rejecting his constitutional complaints, a friendly settlement.   This contractual arrangement settled his claims for compensation with regard to the alleged arbitrary arrest and detention.   The defendant State not only accepted to pay the full amount of compensation claimed by the applicant but also the entire costs of the civil proceedings.   The applicant has himself pointed out that this settlement had been influenced by the findings and reasons stated in the decision of the Bavarian Constitutional Court.   The applicant has thus, by using domestic remedies available to him, namely an action for damages before the civil courts, received and accepted compensation for the alleged violation and has therefore renounced to the further use of local remedies, ie to have his appeal in the civil proceedings decided by the competent court.   This appeal was, inter alia, based on alleged misconduct in office and thus in substance raised the same issues as the applicant's constitutional complaints.   In these circumstances the Commission concludes that the applicant can no longer claim to be a victim of the alleged violations and his application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention (Art. 27-2) (see Decs. Nos. 5577-5583/72, 15.12.75, D.R. 4, 4 <87>;   No. 8865/80, 10.7.81, D.R. 25, 252).   2.       Even assuming that the friendly settlement reached before the Court of Appeal did not cover the applicant's complaint under Article 5 para. 1 of the Convention (Art. 5-1), the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Article 26 of the Convention (Art. 26), it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.   In the present case the applicant failed to substantiate his complaints concerning alleged violations of Articles 2 (2) and 104 GG (protecting the liberty of the person) in his constitutional appeal to the Federal Constitutional Court which consequently rejected the appeal as being to this extent inadmissible.   In these circumstances he cannot be considered to have exhausted the remedies available to him under German law.   Moreover, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and his application would in this respect have to be rejected under Article 27 para. 3 of the Convention (Art. 27-3).   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission            President of the Commission   (H.C. KRÜGER)                          (C.A. NØRGAARD)