CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 3 novembre 2009

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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 1986 the Frankfurt Regional Court convicted the applicant, who had previously served a prison sentence for, inter alia , sexual assault, rape and theft, of triple murder in coincidence with two offences of aggravated robbery, falsification of documents and fraud, and sentenced him to life imprisonment. The court held that the applicant, who had committed the offences while on probation, acted intentionally, in two cases motivated by greed ( Habgier ) and to make another offence possible ( Ermöglichung einer Straftat ), and in one case to conceal an offence ( Verdeckung einer Straftat ). Based on an expert opinion it further held that the applicant tended to be brutal, had sadistic tendencies and was antisocial. On 26 October 2002, having first served the remainder of the previous sentence after probation had been revoked, fifteen years of the sentence had been served and the applicant became eligible for parole. On 13 October 2004 the prison authorities imposed certain restrictions on the applicant, inter alia solitary confinement. All restrictions were suspended again until, at the latest, 7 December 2004. By decision of 9   August 2005 the Gießen Regional Court found the restrictions unlawful as far as they were still in place after 13 November 2004. 2.     Decisions regarding the applicant’s request to relax the conditions of his detention (Vollzugslockerungen) In April and May 2004 the applicant asked for a relaxation of the conditions of his detention, inter alia , prison leave ( Hafturlaub ) and leave to meet with his lawyer. The prison authorities refused the request; they found the risk that the applicant would use such leave to commit crimes or flee was too high. On 17 January 2006 the Kassel Regional Court dismissed an appeal by the applicant. The court held that the prison authorities had not abused their discretion when refusing the prison leave. As to the request for leave to meet his lawyer, it argued that the lawyer could visit the applicant in prison. On 14 July 2006 the Frankfurt Court of Appeal dismissed an appeal by the applicant. On 27 February 2007 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for adjudication without giving reasons. 3.     Decisions on the suspension of the applicant’s sentence on probation In view of his renewed request for a suspension of his sentence on probation in October 2003 the Gießen Regional Court ordered an expert opinion on the question whether the applicant continued to present a danger; the expert examined the applicant on 11 and 12 November 2004. On 7 February 2006 the Gießen Regional Court, after having heard the applicant and having regard to a report by the prison authorities as well as the expert opinion, refused to suspend the applicant’s life sentence on probation and decided that the “particular seriousness” of the applicant’s guilt warranted the continuation of his imprisonment until he had served twenty-five years. It primarily relied on the expert’s opinion, explained by him in person during a hearing, who had diagnosed a dissocial and narcissistic personality disorder and concluded that the risk of the applicant again committing crimes when released had not substantially decreased. The   Regional Court found that these findings alone warranted the refusal of a suspension of the sentence on probation in due consideration of the interests of the security of the public. It further noted that the applicant had been convicted of three offences of murder, committed shortly after he had been released from prison and while still on probation. Although the Regional Court observed that in view of his age it was unlikely that the applicant’s personality would change, it pointed out that a suspension of his sentence on probation could still become possible once he no longer presented a danger because of old age and related health problems. On 21 July 2006 the Frankfurt Court of Appeal dismissed the applicant’s appeal. It confirmed the Regional Court’s findings that the degree of guilt, the circumstances of the crimes and the applicant’s personality, as well as his refusal of therapy, necessitated his further imprisonment, at least until he had served twenty-five years. On 24 July 2007 the Federal Constitutional Court refused to admit a constitutional complaint by the applicant for adjudication. It found no fault in the lower courts’ detailed and reasoned decisions to refuse the suspension of the applicant’s sentence on probation and to order that he should remain in prison pursuant to the life sentence until he had served at least twenty ‑ five years. Since the applicant had submitted neither a 1999 expert opinion he had referred to nor the 2005 expert opinion the Federal Constitutional Court could especially not find a violation of the lower courts’ duty to clarify the relevant facts ( Aufklärungspflicht ). Finally, it held that the lower courts had, as far as could be determined without having read the convicting judgment which the applicant had not submitted, correctly determined the “particular seriousness” of the applicant’s guilt. B.     Relevant domestic law Section 57(a) § 1 in conjunction with section 57 of the German Criminal Code Pursuant to 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. COMPLAINTS     The applicant complained under Articles 2 and 3 of the Convention that his life sentence had not been commuted to probation after fifteen years, but he had been ordered to remain in prison until he had served twenty-five years.     The applicant further complained under Article 5 § 1 of the Convention that his detention was unlawful because he had not received therapy and no social rehabilitation measures had been taken, namely that the conditions of his detention had not been relaxed. He submitted that this had already been the case when he was first imprisoned in the 1970s. He also complained about his solitary confinement in 2004. The applicant complained under Article 6 § 2 (c) of the Convention that no counsel had been appointed for him. He also complained about the length of proceedings without referring to specific proceedings. In substance also complaining under Article 6 of the Convention the applicant submitted that the domestic courts had based their decisions not to suspend his sentence on probation on the 2005 expert opinion for which the examination had taken place while he was detained in solitary confinement. The applicant further complained under Article 13 of the Convention that his application to the Court was hindered by not allowing him to copy documents. The applicant finally also complained under Articles 1 and 8 of the Convention without substantiating his complaints in this respect. THE LAW 1.     Alleged violation of Articles 2 and 3 of the Convention The applicant complained under Articles 2 and 3 of the Convention that his life sentence had not been commuted to probation after fifteen   years’ imprisonment, but his further imprisonment been ordered until he had served twenty-five years. 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 notes that States have a duty under the Convention to take measures to protect the public from violent crime (see V. v. the United Kingdom [GC], no.   24888/94, ECHR 1999-IX, § 98). The present case resembles the Court’s decision in Streicher v. Germany (see Streicher v. Germany (dec.), no. 40384/04, 10 February 2009). As in that case, the Court notes in the instant case 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, in particular that he continued to present a danger. The Court accepts that a period of possibly twenty-five 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. The domestic 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. In this respect the Court observes that the domestic courts even explicitly stated that a release on probation might indeed become possible once the applicant’s old age had sufficiently reduced the danger he presented. 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. 2.     Other alleged violations of the Convention The applicant also alleged violations of Articles 1, 5, 6, 8 and 13 of the Convention. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. If follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Claudia Westerdiek   Peer Lorenzen   Registrar   President