CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 septembre 1991

.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. 16117/90                       by N.                       against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 2 September 1991, the following members being present:                  MM.   C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G.H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                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 13 December 1989 by N. against the Federal Republic of Germany and registered on 1 February 1990 under file No. 16117/90;           Having regard to the report provided for in Rule 47 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 1920, is a German national.   When lodging his application he was detained at S. Prison.   Before the Commission he is represented by Ms.   M. Kunisch, a lawyer practising in Munich.           On 28 February 1967 the Munich I Regional Court (Landgericht) convicted the applicant of murder and sentenced him to life imprisonment.           On 6 April 1983 the Regensburg Regional Court suspended the remainder of the applicant's sentence on probation.   The period of probation amounted to five years.   For this period the applicant was given a probation officer (Bewährungshelfer).   Furthermore, he was ordered to take residence in a particular residential home, not to leave his place of residence without prior consent of his probation officer, and to comply with the regulations of the above residential home.           On 7 March 1984 the Regensburg Regional Court revoked the suspension of the applicant's sentence to life imprisonment.   The Regional Court found in particular that since the end of May 1983 the applicant had been drinking alcohol, and had stayed in summer 1983 and in winter 1984 in a hospital for treatment of his alcohol addiction. He then refused any further therapy.   The management of the residential home refused to keep him on the ground that he had threatened to run amuck.   He also threatened and molested other persons, when he was drunk.   The Regional Court assumed that the positive prognosis for the applicant's future behaviour outside prison at the time of the decision to suspend the remainder of his sentence had been proven to be wrong.   The Regional Court referred to the applicant's alcohol addiction and the serious and continuous violations of the home regulations.   It noted that the applicant could not live on his own.   Having regard to his conduct after release, no other residential home would be prepared to accommodate him.   In these proceedings the applicant was represented by counsel.           Subsequently the applicant repeatedly requested that his sentence be again suspended on probation, but to no avail.           On 26 April 1989 the Regensburg Regional Court dismissed the applicant's request of January 1989 that his sentence be suspended. The Regional Court, referring in particular to a report of the prison, noted that the applicant had no social ties outside prison, and that his alcohol problems had not been solved, as no place for an alcohol therapy could be found.   The attempts of the applicant's counsel to find such a place had also failed.   Still in June 1988 an institution for such therapy, which the applicant had consulted on the initiative of his counsel, had refused him on the ground that he had no reasonable view of his illness.   For these reasons, the Regional Court, referring to S. 57a para. 1 of the Penal Code (Strafgesetzbuch), considered that for the time being it could not be put to a test whether the applicant committed further criminal offences outside prison.   In these and the following proceedings the applicant was represented by counsel.           On 31 May 1989 the Nuremberg Court of Appeal (Oberlandes- gericht) dismissed the applicant's appeal (Beschwerde).   The Court of Appeal considered in particular that if there were, as in the present case, the slightest risk that the sentenced person committed a further serious crime in connection with his alcohol addiction, his sentence could not be suspended.   As regards the applicant the existence of such a risk had to be assumed all the more so, as in the course of the previous suspension of his sentence he had again drunk alcohol.           On 27 November 1989 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 that the inferior court had shown in detail that the applicant continued to be dangerous due to his alcohol addiction.   However, in future the competent courts would have to consider the applicant's right to resocialisation, i.e. his right to have at least a chance to be at liberty again.   Having regard to the applicant's age and the increasing weight to be given to his right to liberty, the courts would have to apply stricter standards as to the establishment of the relevant facts, in particular in respect of the applicant's alcoholism.   The appointment of an experienced expert or a therapy in hospital, as proposed by the applicant's counsel, might then suggest themselves.     COMPLAINTS   1.       The applicant complains under Article 5 para. 1 of the Convention about the Regensburg Regional Court's decision of 7 March 1984 revoking the suspension of his sentence to life imprisonment, and also of the proceedings concerned.   He considers that since that date he has been unlawfully detained.   2.       The applicant also complains under Article 5 para. 1 of the Convention of the Regensburg Regional Court's decision of 26 April 1989 not to suspend the remainder of his sentence to life imprisonment under S. 57a of the Penal Code.     THE LAW   1.       The applicant complains under Article 5 para. 1 (Art. 5-1) of the Convention about the Regensburg Regional Court's decision of 7 March 1984 by which the suspension of his sentence to life imprisonment was revoked.           However, 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 (Art. 26) of the Convention, 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 show that he lodged an appeal with the Court of Appeal under the relevant provision of the German Code of Criminal Procedure, or that he filed a constitutional complaint with the Federal Constitutional Court in this respect.   He cannot, therefore, 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 this part of his application must be rejected under Article 27 para. 3 (Art. 27-3) 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. 57a of the Penal Code to have his life sentence 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 Munich I Regional Court on 28 February 1967 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.           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, p. 21 et seq., paras. 38-53; No. 14289/88, Dec. 14.3.89).           In the present case, the Commission notes that the German courts, in detailed decisions, refused the applicant's conditional release under S. 57a in connection with S. 57 para. 1 of the Penal Code, on the ground that there was still a risk that he would commit criminal offences outside prison, in particular due to his alcoholism.           The Commission finds that these decisions were taken in accordance with the procedure prescribed by German law.   The applicant, who mainly challenges the decision of 7 March 1984, does not give any indication that the decisions of 1989 were arbitrary.   In particular he does not deny the facts underlying these decisions.           The Commission concludes that, 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 unanimously             DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission              (H.C. KRÜGER)                                (C.A. NØRGAARD)