Dax v. Germany



AS TO THE ADMISSIBILITY OF

Application No. 19969/92

by Manfred DAX

against the Federal Republic of Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 7 July 1992, the following members being present:

MM. F. ERMACORA, Acting President of the First Chamber

J.A. FROWEIN

E. BUSUTTIL

A. S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C. L. ROZAKIS

Mrs. J. LIDDY

MM. M. P. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to First Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 February 1992

by Manfred DAX against the Federal Republic of Germany and registered

on 11 May 1992 under file No. 19969/92;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

19969/92 - 2 -

THE FACTS

The applicant is a German citizen born in 1947 and presently

detained in prison in Asperg.

It follows from his statements and the documents submitted that

on 29 April 1991 the applicant was convicted by the Freiburg Regional

Court (Landgericht) of rape and sentenced to four years and nine months

imprisonment. The court further ordered the applicant's preventive

detention (Sicherungsverwahrung).

Preventive detention is ordered in accordance with Section 66 of

the German Criminal Code (StGB), inter alia, if the convicted is an

habitual offender representing a danger to society because of a

tendency to commit offences causing serious bodily harm or material

damage. Section 67c provides for judicial review, at regular two-year

intervals (or less, at the discretion of the court), of the necessity

to maintain preventive detention.

The applicant's appeal on points of law was rejected by the

Federal Court (Bundesgerichtshof) on 10 September 1991 as being

ill-founded. The applicant then lodged a constitutional appeal

complaining of his preventive detention.

On 12 November 1991 this remedy was rejected by a panel of three

judges of the Federal Constitutional Court (Bundesverfassungsgericht)

as offering no prospect of success. It is stated in the decision that

according to constant jurisprudence preventive detention as a sanction

for criminal offences of certain weight and as a protection of the

public against the commission of further offences is compatible with

the Constitution. The fact that other legal systems in Europe did not

provide for preventive detention did not violate the principle of

equality or any general principles of international law. Furthermore

there was nothing to show that in the particular circumstances of the

applicant's case preventive detention had been ordered arbitrarily or

in violation of the applicant's constitutional rights.

COMPLAINTS

The applicant considers that his preventive detention violates

Article 6 para. 2 and Article 7 para. 1 in connection with Article 5

para. 1 and also read in conjunction with Article 14 of the Convention.

He submits that preventive detention is a measure which was introduced

by Nazi legislation and is not compatible with the rule of law as it

constitutes punishment for possible future offences.

THE LAW

The applicant complains of his preventive detention ordered by

the Freiburg Regional Court in connection with his conviction of rape

and a sentence of four years and nine months' imprisonment. He

considers this measure to run counter to various provisions of the

Convention.

However the Commission has already in previous cases held that

preventive detention is in principle justified under para. 5 para. 1

(a) being detention, as in the applicant's case, after lawful

conviction (No. 4210/69, Dec. 19.7.66, Collection 35, 144 (149 with

further references at p. 150)). The measure pursues the legitimate aim

of social protection and rehabilitation of offenders (cf. Eur. Court

H.R., Weeks judgment of 2 March 1987, Series A No. 114, p. 25, para.

47) and does not therefore disclose any appearance of a violation of

the Articles invoked by the applicant.

- 3 - 19969/92

In any event the grounds relied on by the sentencing court for

ordering preventive detention are by their very nature susceptible to

change with the passage of time and it will be open to the applicant

to pursue the remedies open to him once he has served his sentence and

starts being detained for preventive purposes only.

It follows that the application in the present circumstances has

to be rejected as being 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 First Chamber Acting President of the First Chamber

(M. de SALVIA) (F. ERMACORA)