Last Updated on April 28, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 9608/16
Michael Friedrich Martin SCHNEPP
against Germany
The European Court of Human Rights (Fifth Section), sitting on 21 March 2019 as a Committee composed of:
Síofra O’Leary, President,
MārtiņšMits,
Lado Chanturia, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having regard to the above application lodged on 15 February 2016,
Having regard to the declaration submitted by the respondent Government requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The details relating to the applicant, who is a Romanian national, and his application are set out in the appended table.
He was represented before the Court by Mr H. Schwarz, a lawyer practising in Weidenberg.
The applicant complained that the continuation of his preventive detention had been unlawful and thus breached his right to liberty under Article 5 § 1 of the Convention, in particular in view of the domestic courts’ failure to comply with the statutory time-limit for periodic review of the necessity of that detention. The Regensburg Regional Court took its decision by which it ordered the applicant’s preventive detention to continue on 17 November 2015, whereas the one-year time-limit under Article 67e of the Criminal Code for judicial review of whether the applicant’s preventive detention was still necessary had expired on 3 June 2015.
The application was communicated to the German Government (“the Government”) on 11 April 2018.
The Government of Romania, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right.
THE LAW
After the failure to reach a friendly settlement, by letter of 21 November 2018, the Government informed the Court that they proposed to make a unilateral declaration (which they amended on 10 December 2018 to correct clerical errors) with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided, in relevant parts, as follows:
“…
The Federal Government recognises that the Applicant’s rights arising from Article 5 (1) of the Convention were violated by the review decision by [the Regensburg] Regional Court dated 17 November 2015. In his Application dated 5 February 2016, the Applicant did not complain of any further violations of the Convention.
Should the Court decide to strike this Application out of its list of cases, the Federal Government is prepared to recognise the Applicant’s compensation claim in the amount of EUR 8,500.00. This sum of EUR 8,500.00 would be deemed to settle all potential claims of the Applicant in connection with the above-mentioned Application and the review decision of [the Regensburg] Regional Court dated 17 November 2015 against the Federal Republic of Germany and the Land of Bavaria, in particular compensation for damage suffered by the Applicant (including non-pecuniary damage) as well as costs and expenses. In the light of the Court’s rulings in similar cases, the Federal Government considers the amount of EUR 8,500.00 to be reasonable.
The Federal Government therefore requests that this Application be struck out of the Court’s list of cases pursuant to Article 37 (1) (c) of the Convention. The Federal Government’s acknowledgement of a violation of Article 5 (1) of the Convention and its acceptance of a claim for compensation in the amount of EUR 8,500.00 constitutes “[an]other reason” within the meaning of that provision.
…”
By letter of 4 December 2018, the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the ground that violations like the one at issue in the present case frequently occurred and warranted a judgment by the Court.
The Court observes that Article 37 § 1 (c) enables it to strike a case out of its list if:
“… for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Thus, it may strike out applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see, in particular, Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75‑77, ECHR 2003-VI).
The Court has dealt with a number of cases brought against Germany concerning complaints about the violation of the right to liberty under Article 5 § 1 of the Convention in applications concerning the failure of the domestic courts to comply with the statutory time-limit for periodic review of whether a person’s preventive detention was still necessary (see, in particular, H.W. v. Germany, no. 17167/11, 19 September 2013).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amount awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
The Court considers that the above amount should be paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the Convention. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration and of the arrangements for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 11 April 2019.
Liv Tigerstedt Síofra O’Leary
Acting Deputy Registrar President
APPENDIX
| Application no. Date of introduction |
Applicant’s name
Date of birth Nationality
|
Representative’s name and location | Date of receipt of Government’s declaration | Date of receipt of applicant’s comments, if any | Amount awarded for pecuniary and non-pecuniary damage and costs and expenses
(in euros)[i] |
| 9608/16
15/02/2016 |
Michael Friedrich Martin Schnepp
18/05/1961 Romanian |
Hans-Christoph Schwarz
Weidenberg |
21/11/2018 | 04/12/2018 | 8,500 |
[i]. Plus any tax that may be chargeable to the applicant.
Leave a Reply