CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 mars 1989

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 14289/88                       by E.E.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 14 March 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                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;           Having regard to the application introduced on 28 July 1988 by E.E. against the Federal Republic of Germany and registered on 20 October 1988 under file No. 14289/88;           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 facts of the case, as they have been submitted by the applicant, may be summarised as follows:           The applicant, born in 1925, is a German national.   When lodging his application he was detained at Straubing Prison.   Before the Commission the applicant is represented by Mr.   C. Rückel, a lawyer practising in Munich.           The applicant's previous application No. 3606/68 concerning his conviction for murder and sentence to life imprisonment by the Nuremberg Regional Court (Landgericht) on 24 October 1966 was declared inadmissible on 16 May 1969.           On 6 June 1984 the Regensburg Regional Court dismissed the applicant's request for suspension of the remainder of his sentence of life imprisonment.   The Court found that the execution of his sentence could not be suspended on probation under S. 57 (a) of the Penal Code (Strafgesetzbuch).           S. 57 (a) of the Penal Code, which refers partly to S. 57 para. 1 of the Penal Code, provides that the competent court suspends a sentence of life imprisonment after 15 years have been served if the heinous nature of the crime (besondere Schwere der Schuld) does not require further execution of the sentence, if it can reasonably be put to a test whether the applicant will not commit any offences outside prison, and if he agrees.           The Regional Court found that, although the applicant had committed a particularly heinous crime, further execution of his sentence would, in principle, no longer be necessary.   However, having regard to a psychiatric expert opinion of January 1983, the Court considered that the applicant had no sense of reality and could not yet live without control outside prison.           On 13 January 1988 the Regensburg Regional Court dismissed the applicant's second request that his sentence of life imprisonment be suspended on probation.           In its very detailed decision, the Court, having heard the applicant and having had regard to reports of the Straubing Prison dated December 1981, June 1982, July 1986 and December 1987, and to two medical expert opinions of January 1983 and October 1986, found that he could not be released on probation.   The composition of the chamber having changed, the Court considered in particular that the murder which the applicant had committed was particularly heinous and demanded the execution of his sentence of life imprisonment.   Further, the Court found that there was still a risk that the applicant would commit further serious crimes or even murder if at liberty.   He was still showing serious deficiencies in his social behaviour which outweighed the positive circumstances, in particular the relationship with his fiancée who would be prepared to take care of him.           In these and the following proceedings the applicant was represented by counsel.           On 9 March 1988 the Nuremberg Court of Appeal (Oberlandes- gericht) dismissed the applicant's appeal (Beschwerde).           On 25 May 1988 the Federal Constitutional Court (Bundes- verfassungsgericht) refused to admit the applicant's constitutional complaint (Verfassungsbeschwerde) on the ground that it offered no prospect of success.   The Constitutional Court found in particular that the decision of the Regional Court and of the Court of Appeal were based on detailed reasoning and did not appear arbitrary.   COMPLAINTS   1.       The applicant complains that the decisions of the Regensburg Regional Court of 13 January 1988 and the Nuremberg Court of Appeal of 9 March 1988 refusing his release from prison are arbitrary and amount to inhuman and degrading treatment within the meaning of Article 3 of the Convention.   He submits in particular that these court decisions contradict in their reasoning the earlier decision of the Regional Court of 1984 as to the particularly heinous nature of the crime. Furthermore, the Courts incorrectly assessed the evidence as to the question of his probable conduct outside prison.   2.       The applicant also complains under Article 5 para. 1(a) of the Convention that the Regensburg Regional Court and the Nuremberg Court of Appeal, in their decisions of January and March 1988, did not correctly consider the issue of his release on probation under S. 57 (a) of the Penal Code; and that thus his detention after conviction is no longer lawful.       THE LAW   1.       The applicant complains that the decisions of the Regensburg Regional Court and the Nuremberg Court of Appeal of 1988 refusing the suspension of his sentence of life imprisonment constituted a violation of Article 3 (Art. 3) of the Convention, which reads:   "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."           The Commission recalls that a sentence to life imprisonment does not as such constitute a breach of Article 3 (Art. 3) of the Convention (cf.   No. 7994/77, Dec. 6.5.78, D.R. 14 p. 238).           In the present case, the Commission observes that, following a judgment of the Federal Constitutional Court of 21 June 1977 (cf. EuGRZ 1977 p. 267), the German Penal Code has been amended and now provides the prisoner with a legal possibility of obtaining conditional release in court proceedings after having served at least 15 years of his sentence of life imprisonment.   This legal provision also applied to the applicant.           As regards the contested decisions of the Regensburg Regional Court and the Nuremberg Court of Appeal dismissing the applicant's requests for release, the Commission recalls that treatment will be considered inhuman only if this treatment reaches a certain stage of gravity, causing considerable mental or physical suffering (Eur.   Court H.R., judgment in the case of Ireland v. the United Kingdom of 18 January 1978, Series A no. 25, p. 65, para. 162).         Furthermore, as regards the criteria concerning the notion of "degrading treatmant", the treatment itself will not be degrading unless the person concerned has undergone humiliation or debasement attaining a minimum level of severity.   That level has to be assessed with regard to the circumstances of the case (see the above-mentioned judgment, pp. 65 et seq., paras. 162, 167 and 179-81).           In the present case, the Commission, having examined in the light of the above case-law the applicant's complaint that the refusal of his release was arbitrary, finds that in the circumstances of this case, the detailed reasons given by the German courts do not disclose any appearance of a violation of Article 3 (Art. 3) of the Convention.           It follows that this aspect of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also complains under Article 5 para. 1 (a) (Art. 5-1-a) of the Convention that the Regensburg Regional Court and the Nuremberg Court of Appeal incorrectly examined his request under S. 57 (a) of the Penal Code to have his sentence of life imprisonment suspended on probation.           Article 5 para. 1 (Art. 5-1) of the Convention, in so far as relevant, reads:   "1.      Everyone has the right to liberty and security of person.   No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:           (a)      the lawful detention of a person after conviction by a competent court;    ..."           The Commission observes that the applicant was convicted of murder by the Nuremberg Regional Court on 24 October 1966 and sentenced to life imprisonment, and has, therefore, been lawfully detained within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.   This the applicant does not deny.           The Commission recalls that the rights and freedoms safeguarded by the Convention do not include a right to have a penalty imposed by a court in criminal proceedings suspended on probation (cf. No. 7648/76, Dec. 6.12.77, D.R. 11 p. 175).   However, the Convention organs have examined subsequent decisions relating to detention, in particular decisions to revoke a conditional suspension of a sentence of life imprisonment under Article 5 para. 1 (a) (Art. 5-1-a) of the Convention (cf. Eur.   Court H.R., Weeks judgment of 2 March 1987, Series A No. 114, pp. 21 et seq., paras. 38 - 53).           In the present case, the Commission notes that the German courts, in detailed decisions, refused the applicant's release under S.57 (a) in connection with S. 57 para. 1 of the Penal Code, on the two grounds that first the heinous nature of the murder which he had committed required the further execution of his sentence, and second that there was a risk that he would commit criminal offences outside prison.          The Commission finds that these court decisions were taken in accordance with the procedure prescribed by German law.   The refusal of the applicant's release on probation was based on grounds which refer to and depend upon his conviction in 1966, especially as regards the heinous nature of the murder committed by him.   The Commission does not find it arbitrary that the Regensburg Regional Court, in its second decision of 13 January 1988, the composition of the chamber having changed, deviated from its first decision of 1984 as to the question whether or not the heinous nature of the crime required further execution of the applicant's sentence of life imprisonment.           Consequently, in the circumstances of the present case there is no appearance of a violation of Article 5 para. 1 (Art. 5-1) of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE       Secretary to the Commission          President of the Commission             (H. C. KRÜGER)                        (C. A. NØRGAARD)