European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2010/2108.html
Cite as: [2010] ECHR 2108

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FIFTH SECTION

DECISION

Application no. 9643/04
by Frank OBERLÄNDER
against Germany

The European Court of Human Rights (Fifth Section), sitting on 7 December 2010 as a Chamber composed of:

Peer Lorenzen, President,
Renate Jaeger,
Rait Maruste,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva,
Ganna Yudkivska, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 9 March 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Frank Oberländer, is a German national who was born in 1966. He was detained in Naumburg Prison until 13 December 2006 and appears to be living in Quedlinburg since then. He was granted legal aid and was represented before the Court by Mr V. Buchwald, a lawyer practising in Halle. The respondent Government were represented by their Agent,
Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice, assisted by Mr H. Schöch, Professor of criminal law, counsel.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 15 August 2002 the Halle Regional Court ordered the applicant’s continued placement in prison for preventive purposes for twelve months after he had fully served his prison sentences imposed in 1984 for murder and in 1992 for attempted homicide. The applicant’s continued detention was based on sections 1 and 2 of the Saxony-Anhalt Act for the placement of persons particularly liable to reoffend in order to avert considerable dangers for public security and order (Saxony-Anhalt (Dangerous Offenders’) Placement Act) of 6 March 2002.

On 2 September 2002 the Naumburg Court of Appeal dismissed the applicant’s appeal.

On 10 February 2004 the Federal Constitutional Court partly allowed the applicant’s constitutional complaint (no. 2 BvR 1588/02), in which he had alleged a violation of his right to liberty, together with that of another complainant, Mr Haidn, who subsequently lodged application no. 6587/04 with the Court. It found that the Saxony-Anhalt (Dangerous Offenders’) Placement Act, as well as another comparable Act, the Bavarian (Dangerous Offenders’) Placement Act, were incompatible with the Basic Law as the Länder did not have the power to enact the legislation in question. The court, however, ordered the continued application of the statutes until 30 September 2004 and the applicant thus remained in prison.

Since 29 July 2004 the applicant was provisionally placed in preventive detention, ordered retrospectively under the provisions inserted into the Criminal Code by the newly enacted federal Act on the introduction of retrospective preventive detention.

On 13 December 2006 the Magdeburg Regional Court refused to order the applicant’s preventive detention retrospectively as it considered that there was no longer a high risk that the applicant, who had made a therapy, would commit serious offences. The applicant was released on that day.

COMPLAINTS

The applicant complained under Article 5 § 1 and Article 3 of the Convention about his retrospective detention for preventive purposes after he had fully served his prison sentence on the basis of the unconstitutional Saxony-Anhalt (Dangerous Offenders’) Placement Act.

PROCEDURE BEFORE THE COURT

On 9 January 2007 the President of the Chamber decided to communicate the application to the respondent Government.

By a letter dated 16 October 2007 the Government’s observations of 28 September 2007 were sent to the applicant’s counsel, who was requested to submit his observations in reply together with any claims for just satisfaction by 27 November 2007. The applicant’s counsel failed to submit any observations on behalf of the applicant.

By a registered letter with A/R dated 17 December 2007 the applicant’s counsel was notified that the period allowed for the submission of his client’s observations had expired on 27 November 2007 without any extension of time having been requested. His attention was drawn to Article 37 § 1 (a) of the Convention, which provided that the Court could strike a case out of its list of cases where the circumstances led to the conclusion that the applicant did not intend to pursue the application. The applicant’s counsel did not reply to that letter.

As for the above-mentioned letter no confirmation of receipt had been received at the Court, a copy of the letter dated 17 December 2007 was again sent by registered mail with A/R to the applicant’s counsel. A confirmation of receipt signed by the latter, but no further correspondence, was received at the Court on 18 October 2010.

None of the Court’s correspondence with the applicant’s counsel, who has kept practising as a lawyer at the same address, has been returned to the Court as undeliverable. The applicant has never contacted the Court in writing himself.

THE LAW

Article 37 § 1 of the Convention, in so far as relevant, provides:

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; ...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court reiterates that an applicant’s failure to submit written observations on the admissibility and merits of the case or other information or documents requested by the Court may warrant the conclusion that he or she does not intend to pursue the application (see, inter alia, Kazimov v. Russia (dec.), no. 17645/04, 9 March 2006; Zayed v. Germany (dec.), no. 35866/03, 20 February 2007; and Perek v. Poland (dec.), no. 37021/05, 9 September 2008).

Having regard to the failure of the applicant’s counsel to submit observations in reply to the Government’s observations in the circumstances described above, the Court considers that the applicant must be regarded as no longer wishing to pursue his application within the meaning of Article 37 § 1 (a) of the Convention.

Furthermore, the Court does not find any reasons of a general character, affecting respect for human rights as defined in the Convention and its Protocols, which require to continue the examination of the present application in accordance with Article 37 § 1 in fine of the Convention (see, for instance, Karner v. Austria, no. 40016/98, §§ 26-28, ECHR 2003 IX).
It observes in this respect that the application of Haidn v. Germany, no. 6587/04, which concerns issues similar to those raised in the present case and relates to the same leading judgment of the Federal Constitutional Court, has been pursued and is still pending before the Court.

Accordingly, the Court considers that the present application should be struck out of its list of cases under Article 37 § 1 (a) of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Claudia Westerdiek Peer Lorenzen
Registrar President