FIFTH SECTION
\nDECISION<\/p>\n
Application no. 70410\/16
\nPeter BREIDENBACH
\nagainst Germany<\/p>\n
The European Court of Human Rights (Fifth Section), sitting on 18\u00a0December 2018 as a Committee composed of:<\/p>\n
Andr\u00e9 Potocki, President,
\nAngelika Nu\u00dfberger,
\nM\u0101rti\u0146\u0161 Mits, judges,<\/p>\n
and Milan Bla\u0161ko, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 25 November 2016,<\/p>\n
Having regard to the declaration submitted by the respondent Government on 18 October 2018 requesting the Court to strike the application out of the list of cases,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
FACTS AND PROCEDURE<\/strong><\/p>\n The applicant, Mr Peter Breidenbach, is a German national, who was born in 1957 and is currently detained in Werl Prison. He was represented before the Court by Mr\u00a0D. Bach, a lawyer practising in Eschweiler.<\/p>\n The German Government (\u201cthe Government\u201d) were represented by their Agents, Mrs A. Wittling-Vogel, Mrs K. Behr and Mr H.-J. Behrens, of the Federal Ministry of Justice and Consumer Protection.<\/p>\n The applicant complained, in particular, under Article\u00a05 \u00a7\u00a01 and Article\u00a07\u00a0\u00a7\u00a01 of the Convention about the retrospective extension of his preventive detention executed in Aachen Prison, beyond the former ten\u2011year maximum duration applicable at the time of the applicant\u2019s offence, by decision of the Aachen Regional Court of 11 April 2014, confirmed on appeal by the Cologne Court of Appeal on 31 March 2015.<\/p>\n On 24 May 2017 the complaints under Article\u00a05 \u00a7\u00a01 and Article\u00a07 \u00a7\u00a01 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule\u00a054 \u00a7\u00a03 of the Rules of Court.<\/p>\n THE LAW<\/strong><\/p>\n The applicant complained about the retrospective extension of his preventive detention beyond the former ten\u2011year maximum duration. He relied on Article\u00a05 \u00a7\u00a01 and Article 7 \u00a7 1 of the Convention.<\/p>\n After the failure of attempts to reach a friendly settlement, by a letter of 24 November 2017 the Government informed the Court that they proposed to make a unilateral declaration 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.<\/p>\n By a letter of 7 December 2017 the applicant referred to Article\u00a037 \u00a7\u00a01 in fine and indicated that he was not satisfied with the terms of the unilateral declaration.<\/p>\n Following a letter by the Court of 31 May 2018, the Government, by a letter of 24 July 2018, submitted an amended unilateral declaration and again requested the Court to strike out the application in accordance with Article\u00a037 of the Convention.<\/p>\n By a letter of 8 August 2018, the applicant again referred to Article\u00a037 in fine and indicated that he was not satisfied with the terms of the unilateral declaration.<\/p>\n Following a letter by the Court of 4 October 2018, the Government, by a letter of 18 October 2018, submitted an amended unilateral declaration with a view to resolving the issue raised by the application and again requested the Court to strike out the application in accordance with Article\u00a037 of the Convention.<\/p>\n The declaration provided as follows:<\/p>\n \u201cAfter consulting with North Rhine-Westphalia, the Land concerned, with regard to this case, the Federal Government attempted to reach a friendly settlement with the Applicant. This proposal was made by telephone to the Applicant\u2019s legal counsel, attorney Bach, on 23 October 2017. Following consultations with his client, attorney Bach notified the Federal Government by telephone on 13 November 2017 that his client would not agree to the conclusion of the proposed settlement.<\/p>\n The Federal Government regrets that no friendly settlement could be reached with the Applicant. Because the Federal Government acknowledges that the Convention has been violated, it hereby submits to the Court the following unilateral declaration.<\/p>\n The Federal Government recognises that the Applicant\u2019s rights arising from Articles\u00a05 (1) and 7 (1) of the Convention were violated by the review decisions of Aachen Regional Court dated 11 April 2014 as well as of Cologne Higher Regional Court dated 31 March 2015.<\/p>\n If the Court strikes this case from its list, the Federal Government is willing to accept a claim for compensation in the amount of \u20ac13,000.00. This sum of \u20ac13,000.00 would be deemed to settle all potential claims of the Applicant in connection with the above-mentioned Application against the Federal Republic of Germany and the Land of North-Rhine Westphalia, including in particular compensation for the Applicant\u2019s damage (including non-pecuniary damage) as well as costs and expenses. The Federal Government considers a sum of \u20ac13,000.00 to be fair in light of the Court\u2019s case law in similar cases.<\/p>\n The Federal Government therefore requests that this Application be struck out of the Court\u2019s list of cases pursuant to Article 37 (1) (c) of the Convention. The Federal Government\u2019s acknowledgement of a violation of Article 5 (1) and 7 (1) of the Convention and its acceptance of the claim for compensation in the amount of \u20ac13,000.00 constitutes \u2018[an]other reason\u2019 within the meaning of this provision. \u201d<\/p>\n By a letter of 19 November 2018, the applicant informed the Court that he maintained his position expressed in his letter of 8 August 2018.<\/p>\n The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article\u00a037\u00a0\u00a7\u00a01\u00a0(c) enables the Court in particular to strike a case out of its list if:<\/p>\n \u201cfor any other reason established by the Court, it is no longer justified to continue the examination of the application\u201d.<\/p>\n It also reiterates that in certain circumstances, it may strike out an application under Article\u00a037\u00a0\u00a7\u00a01\u00a0(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.<\/p>\n To this end, the Court has examined the declarationin the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v.\u00a0Turkey (preliminary objections) [GC], no.\u00a026307\/95, \u00a7\u00a7 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v.\u00a0Poland (dec.), no.\u00a011602\/02, 26 June 2007; and Herman v.\u00a0the Netherlands (dec.), no.\u00a035965\/14, \u00a7\u00a7\u00a015-18, 17 November 2015).<\/p>\n The Court has established its practice in a number of cases brought against Germany concerning complaints about the violation of the right to liberty under Article 5 \u00a7 1 of the Convention and of the prohibition on retrospective punishment under Article 7 \u00a7 1 of the Convention in applications concerning the retrospective prolongation of the applicants\u2019 preventive detention beyond the former statutory ten-year maximum duration applicable at the time of their offences (see, for example, Glien v.\u00a0Germany, no.\u00a07345\/12, 28 November 2013).<\/p>\n Having regard to the nature of the admissions contained in the Government\u2019s declaration, as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the present application (Article\u00a037 \u00a7\u00a01\u00a0(c)).<\/p>\n 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\u00a037 \u00a7\u00a01 in fine).<\/p>\n The Court considers that the above amount should be paid within three months from the date of notification of the Court\u2019s decision issued in accordance with Article 37 \u00a7 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.<\/p>\n 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\u00a037 \u00a7\u00a02 of the Convention (Josipovi\u0107 v. Serbia (dec.), no.\u00a018369\/07, 4 March 2008).<\/p>\n In view of the above, it is appropriate to strike the case out of the list.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Takes note of the terms of the respondent Government\u2019s declaration under Article 5 \u00a7 1 and Article 7 \u00a7 1 of the Convention, and directs in consequence:<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant EUR\u00a013,000 (thirteen thousand euros), within three months from the date of notification of this decision, in respect of pecuniary and non-pecuniary damage as well as costs and expenses;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n Decides to strike the application out of its list of cases in accordance with Article\u00a037 \u00a7\u00a01\u00a0(c) of the Convention.<\/p>\n Done in English and notified in writing on 24 January 2019.<\/p>\n Milan Bla\u0161ko\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Andr\u00e9 Potocki
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n