CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 10 février 2009

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He was represented before the Court by Mr J. Sklebitz, a lawyer practising in Munich. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background to the case On 21 March 1990 the Ansbach Regional Court convicted the applicant of murder and attempted murder and sentenced him to life imprisonment. It held that in both cases he had acted intentionally, treacherously and from base motives , reducing his victims to mere objects of his aggression. It also found that the applicant was emotionally cold, had a tendency to overreact, and was psychopathic and antisocial. It also decided that, inter alia , due to the degree of his guilt a lifelong prison sentence had to be imposed for both offences. 2.     Decisions on the suspension of the applicant’s sentence on probation On 25 March 2004 the Regensburg Regional Court – the applicant would have become eligible for parole on 6 November 2004 – after having heard the applicant and after having obtained a report by the prison authorities, refused to suspend his sentence on probation and decided that the “particular gravity” of the applicant’s guilt as well as his personality warranted extending the sentence to at least 26 years’ imprisonment in total. It thereby relied on the fact that the applicant had been sentenced to life imprisonment for both offences and referred to the Regional Court’s findings that in both cases he had acted treacherously and from base motives and that therefore two special features of murder had been made out, and that he had committed the offences while on probation for attempted rape. The court also relied on the report of the prison authorities, which stated that he had been subject to numerous disciplinary measures and apparently had not formed any personal bonds. On 30 April 2004 the Nürnberg Court of Appeal rejected his appeal. It confirmed the Regensburg Regional Court’s findings that the degree of guilt, the consequences of the crimes and considerations concerning the execution of the sentence clearly necessitated the applicant’s continued imprisonment. It rejected the applicant’s submission that he had changed, referring in particular to his failure to face up to his crimes, and his ongoing disputes in prison and continued aggressive behaviour. On 9 August 2004 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication. B.     Relevant domestic law and practice 1.     Section 211 § 1 of the German Criminal Code provides: “The murderer shall be punished with imprisonment for life.” 2.     Section 57(a) § 1 in conjunction with section 57 of the German Criminal Code: Under these provisions the court shall suspend the execution of the remainder of a sentence of imprisonment for life and grant probation, if, inter alia , fifteen years of the sentence have been served, the degree of the convicted person’s guilt does not require its continued execution and if this can be justified upon consideration of the security interests of the general public. When taking the decision, the following shall be taken into consideration; the personality of the convicted person; his previous history; the circumstances of his act; 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 effects suspension could be expected to have. 3.     Decision of the Federal Constitutional Court dated 3 June 1992 (BVerfGE 86, 288) The Federal Constitutional Court found that the feature “particular gravity of a person’s guilt” was sufficiently clear, in particular as its meaning could sufficiently be derived from the context, further provisions, its history and respective case-law. It also held that contrary to the wording of section 57(a) § 1 of the German Criminal Code, it was for the sentencing courts to decide on the particular gravity of a person’s guilt. However, in those cases already decided upon (so-called “ Altfälle ”) the courts supervising the execution of sentences and deciding on parole should remain competent to take this decision. COMPLAINTS The applicant complained under Articles 2 and 3 of the Convention that his sentence of life imprisonment was not commuted to probation after 15 years’ imprisonment, but extended to a total of “at least” 26 years’ imprisonment. Relying on Article 7 of the Convention, he complained that the courts supervising the execution of sentences did not have a coherent approach as regards decisions on the particular gravity of a person’s guilt. THE LAW A.     Alleged violation of Articles 2 and 3 of the Convention The applicant complained under Articles 2 and 3 of the Convention that his sentence of life imprisonment was not commuted to probation after 15 years’ imprisonment, but extended to at least 26 years’ imprisonment. The Court considers that these complaints fall to be examined under Article 3 of the Convention alone, which provides: “No one shall be subjected to torture or to inhuman and degrading treatment or punishment.” The Court observes at the outset that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article   3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom , 18   January 1978, Series A no. 25, p. 65, § 162). The Court moreover reiterates that the imposition of a sentence of life imprisonment on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention. At the same time, however, the Court has also held that the imposition of an irreducible life sentence on an adult may raise an issue under Article 3. An analysis of the Court’s case-law on the subject discloses that where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3 (see , inter alia , Kafkaris v. Cyprus [GC], no. 21906/04, judgment of 12 February 2008, §§ 97, 98). Finally, the Court would also like to point out that States have a duty under the Convention to take measures for the protection of the public from violent crime (see V. v. the United Kingdom [GC], no.   24888/94, ECHR 1999-IX, § 98). In the present case, the Court notes that the severity of the offence was but one element of the refusal to suspend the sentence on probation which was also based on the applicant’s personality and conduct in prison. The Court accepts that a period of possibly 26   years’ imprisonment is a very lengthy period of imprisonment which may cause anxiety and uncertainty to the applicant. Nevertheless, the applicant is not deprived of all hope of being released again. German Law expressly provides for a parole system and the applicant is free to lodge a new request to be released on probation at any time. Moreover, there is nothing to suggest that the continued detention actually causes him considerable mental or physical suffering. The mere reference to his age is not as such sufficient. In view of these considerations, and taking into account the high threshold set by Article 3 of the Convention, the refusal to commute the applicant’s sentence of life imprisonment to probation cannot be qualified as inhuman treatment within the meaning of Article   3 of the Convention. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. B.     Alleged violation of Article 5 of the Convention By submitting that the feature “particular gravity of the convicted person’s guilt” was applied inconsistently by the courts supervising the execution of the sentence – the absence of this feature is one precondition for release after 15 years’ imprisonment – the applicant in substance also invoked Article 5 of the Convention, suggesting that his continued detention had become arbitrary and ceased to be, within the meaning of Article   5   §   1   (a) of the Convention, “... the lawful detention of a person after conviction by a competent court”. The Court reiterates that the “lawfulness” of detention primarily requires any arrest or detention to have a legal basis in domestic law, but also relates to the quality of the law. In addition, any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see, among many other authorities, Amuur v. France , judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, pp. 850-51, § 50). In the present case, the applicant’s continued detention had a basis in national law, namely section 57 (a) § 1 in conjunction with section 57 § 1 of the Criminal Code (see Relevant domestic law and practice, above). The Court also notes that the Regensburg Regional Court’s finding that the applicant’s guilt was of a particular gravity was based on the Ansbach Regional Court’s findings that in both cases the applicant had acted treacherously and from base motives and that consequently in both cases two special features of murder had been made out. Furthermore, apart from the reasons related to the offences as such, the court also – in compliance with the positive obligation to take measures for the protection of the public from violent crime – relied on considerations of prevention, namely, the applicant’s aggressive behaviour in prison and the fact that he had committed the crimes while still on probation. Finally, it must also be noted that the applicant did not substantiate his allegation that there was an inconsistent approach as regards decisions on the particular gravity of a person’s guilt – a feature which the Federal Constitutional Court found to be sufficiently clear – but merely generally referred to the existence of other cases allegedly decided upon differently, without specifying these cases. In view of these considerations the applicant’s continued detention cannot be qualified as arbitrary. It follows that also this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. C.     Alleged violation of Article 7 of the Convention The applicant also complained under Article 7 § 1 of the Convention about the refusal to suspend his sentence to life imprisonment on probation, submitting that there was no consistent approach on the part of the courts supervising the execution of the sentence as regards the application of the feature “particular gravity of the convicted person’s guilt”. Article 7   §   1 of the Convention, in so far as relevant, provides: “Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” The Court reiterates that the guarantee enshrined in Article 7 is an essential element of the rule of law. It embodies, in general terms, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ). The term “law” implies qualitative requirements, including those of accessibility and foreseeability. These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence in question carries. An individual must know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable and what penalty will be imposed for the act committed and/or omission (see, among other authorities, Kafkaris , cited above, § 137-140). In the present case, at the time the applicant committed the offences (and was convicted thereof), life imprisonment was mandatory and an early release after 15 years’ imprisonment clearly depended on whether the court supervising the execution of a sentence established the particular gravity of a convicted person’s guilt. The Federal Constitutional Court, in its decision of 3 June 1992, laid down in detail that the feature “particular gravity of guilt” was sufficiently clear. There is no indication that it was applied inconsistently. As already found above, the applicant’s respective allegations have not been sufficiently substantiated (see, a contrario, Kafkaris , cited above). In the present case, there is also no element of retroactivity, because the substantive provisions and the provisions concerning parole remained unchanged. It follows that the decision on the particular gravity of the applicant’s guilt cannot be qualified as a retroactive imposition of a “heavier penalty” which failed to meet the requirements of Article 7 § 1 of the Convention. Consequently, this part of the application must also be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Claudia Westerdiek   Peer Lorenzen   Registrar   President