EHRM, 07-03-2013, nr. 15598/08

The applicant submitted, in particular, that his detention could not have been ‘reasonably considered necessary to prevent his committing an offence’ for the purposes of sub-paragraph (c) of Article 5 § 1. There had not been a sufficient suspicion that he had to be prevented from committing an unlawful act. The police's suspicion in this respect had only been based on his entry into the database of the Bremen police as a person prepared to use violence in the context of sports events. As the entries in that database were wrong and unlawful and as he had never been in a position to have examined his entry in that database before the domestic courts, the fact that he figured in that database could not have raised any sufficient suspicion that he was about to commit an offence. Without that unlawful entry into the police database, he would never have been taken into custody as a supposed gang leader of football hooligans. In any event, according to the information contained in that database, he had allegedly been involved in only ten incidents during a period of more than seven years and had been detained only once. Given the large number of football matches he had been present at, the small number of incidents did not justify his classification as a violent offender.

The applicant stressed that, in the factual circumstances of the case, the police's suspicion that the commission of a criminal offence by him had been imminent had been completely unfounded. He had separated from the group of Bremen football fans in the pub as he still had to pay and had to go to the bathroom which he had informed the police of. He had gone to the ladies' room as the men's room was in a poor state. A police officer and a male person from Frankfurt had approached him there and he had left the pub with the police without resistance before he had been taken into custody.

Moreover, the applicant argued that his detention had, in any event, been unnecessary. The police had had the situation fully under control. Due to their police surveillance and the previous seizure of objects considered as dangerous, the commission of any offence by the group of unarmed football fans would have been impossible. It would have been sufficient in order to avert a hooligan brawl prior to the match to escort the applicant together with the Bremen group of football fans to the football stadium or to simply separate him from the Bremen group and to seize his mobile phone without taking him into custody.

The applicant further argued that his detention had not been covered by sub-paragraph (b) of Article 5 § 1 either. It had neither been based on a court order nor had it been ordered to secure the fulfilment of any statutory obligation.

In the Government's submission, the applicant's detention had been justified under sub-paragraph (c) of Article 5 § 1 in the first place, as it had been ‘reasonably considered necessary to prevent his committing an offence’. They stressed that the applicant had not yet committed a criminal offence as his preparatory acts arranging a hooligan brawl were not punishable under German law. However, the applicant had to been taken into custody by the police for preventive purposes as the police had reasonably considered his detention necessary in order to stop him from committing serious offences, in particular bodily injuries, breaches of the peace and participation in a brawl (Articles 223, 125 and 231 of the Criminal Code, see paragraphs 37–39 above), in the context of the football match.

The Government stressed that the applicant was a hooligan seeking violent altercations. Since the end of the 1980s, the applicant, who held right-wing extremist views and has worked for the right-wing National-Democratic Party of Germany (Nationaldemokratische Partei Deutschlands), has belonged to a group of nationalist football fans in Bremen classified by the police as ‘hooligans seeking violence’ (so-called category C fans). He has been identified as one of the leaders of that group notably during a previous demonstration of hooligans against travel restrictions organised and animated by him. He has previously been convicted of breach of the peace in 1994 and criminal investigation proceedings were opened against him on a number of occasions, inter alia, for breaches of the peace and bodily injury.

In the Government's view, preventive police custody as that of the applicant was covered by sub-paragraph (c) of Article 5 § 1, despite the fact that it was not connected with criminal proceedings as required in the Court's current case-law, if it was indispensable to avert an imminent, specific criminal offence. This was confirmed by the wording of Article 5 § 1 (c), second alternative, which authorised detention of a person ‘when it is reasonably considered necessary to prevent his committing an offence’. It was not necessary that the person concerned had already committed a criminal offence as this situation was covered by the first alternative of Article 5 § 1 (c) — detention ‘on reasonable suspicion of having committed an offence’ — and the second alternative would be superfluous otherwise. Police custody for preventive purposes, which was only authorised as a measure of last resort in order to avert imminent serious offences, also did not amount to arbitrary detention.

Furthermore, the State's duty flowing from Articles 2 and 3 of the Convention to protect the public from offences should be taken into account in the interpretation of Article 5 § 1 and militated in favour of an authorisation of preventive police custody under that provision.

The Government further argued that the fact that everyone detained in accordance with the provisions of paragraph 1 (c) of Article 5 § 1 was entitled, under Article 5 § 3 of the Convention, to ‘trial within a reasonable time’ did not warrant the conclusion that Article 5 § 1 (c) only covered pre-trial detention. It was true that no criminal trial would be held in respect of persons held in police custody for preventive purposes as they were not accused of a criminal offence. However, the duty to bring a detainee promptly before a judge, as equally required by Article 5 § 3, also applied to persons in preventive police custody. The term ‘trial’, in these circumstances, had to be understood as referring to the judicial decision on the lawfulness of the preventive police custody of the person concerned.

The Government stressed that the possibility to have recourse to such custody for preventive purposes was indispensable for the police in order to maintain public security and order. All German Länder therefore had provisions similar to those applicable in Hesse, which authorised custody for preventive purposes for a short period where this was indispensable to avert an imminent significant criminal or regulatory offence. The authorisation of custody for preventive purposes was particularly important in cases of imminent domestic violence or where there was a risk of clashes provoked by violent participants or counter-demonstrators in the context of demonstrations of right-wing or left-wing groups. Likewise, preventive police custody served to prevent persons ready to block the transport of casks for the storage and transport of radioactive material (CASTOR) on streets or by train from doing so. The weekly football matches of the German Federal football league and football championships, in particular, could no longer be carried out in a peaceful manner without taking recalcitrant hooligans provoking violent clashes with rival hooligans into preventive police custody. Finally, altercations between drunk persons in pubs or on fairs could often not be prevented without taking the person(s) concerned in preventive police custody.

Such preventive police custody was particularly important in Germany where, contrary to the applicable law in other Member States, criminal law punished acts by which an offence was prepared only in exceptional cases. Thereby, potential offenders were incited to give up their plans to commit an offence (without being punishable). However, in order to protect potential victims effectively, the police could not await the commission of an offence and the occurrence of serious damage prior to their intervening. It would, however, run counter to the protection of fundamental rights if, in order for a preventive custody to comply with Article 5 § 1 (c) (first alternative), the State had to provide for more preparatory acts to be punishable under criminal law.

There had been no less intrusive means than the applicant's detention for a short duration in order to achieve the aim of crime prevention. The applicant no longer had to be brought before a judge as required by Article 5 § 3 as a court decision could not have been obtained before the end of the applicant's short detention. Requiring a court order would therefore have deprived the applicant of his liberty longer than necessary. The applicant had been free to obtain a court decision on the lawfulness of his detention after his release.

The applicant had further been arrested and detained in compliance with sub-paragraph (b) of Article 5 § 1 in order to secure the fulfilment of an obligation prescribed by law. Prior to his detention, the applicant had repeatedly been warned by the police, notably by police officer G., that the group of hooligans he had been part of would be escorted by the police on the way to the football stadium and that everyone who left that group might be arrested. It had been clear to the applicant that the police's order had been aimed at preventing arrangements of altercations with other hooligan groups. The applicant had failed to comply with the police's order, which had implemented his obligation prescribed by law — section 11 of the Hessian Public Security and Order Act (see paragraph 31 above) — to remain with the group and not to arrange an altercation. As it had been clear from his conduct that he would not comply with that order in the future, he had been taken into custody under section 32 § 1 no. 2 of the Hessian Public Security and Order Act.

The order had been lawful as there had been sufficient facts to indicate that the applicant — known to the police as a violence-seeking hooligan holding right-wing extremist views — had intended to evade the police escort in order to organise by mobile phone and take part in an altercation between hooligans supporting Eintracht Frankfurt football club and hooligans supporting Werder Bremen football club before or after the football match. The police could reasonably base that assumption on their surveillance of the applicant prior to his arrest. The applicant had been observed speaking to a hooligan from Frankfurt am Main and had given no plausible explanation why he had attempted to evade police surveillance by hiding in the ladies' toilets. The Government contested in particular that the applicant had informed the police that he still had to pay and to go to the restroom prior to leaving the group.

Moreover, the applicant had been identified by the Bremen police as the leader of a group of violence-seeking hooligans during many years of surveillance and criminal investigation proceedings had been opened for related offences against him on several occasions. Furthermore, objects typically serving to attack or defend oneself during hooligan altercations had been found on members of the applicant's group. In addition, the police had generally experienced that hooligans, as a rule, fixed the time and place of altercations with rival hooligan groups in advance. During the altercation which the applicant had attempted to arrange, significant offences punishable under the Criminal Code, in particular bodily injuries, breaches of the peace and participation in a brawl, would have been committed by the applicant and the other hooligans involved.

The Government stressed in that context that, contrary to the applicant's view, the police's estimation that he had planned to organise an altercation between hooligans had not been based on the lawful entries concerning him in the database on violent football fans. At the time the Frankfurt am Main police had taken the applicant into custody, they had not been aware of those entries. The Bremen police had only informed them that the applicant was the leader of a group of violence-seeking hooligans travelling to Frankfurt. The police's view that he posed a threat to public security and his detention had not, therefore, been predetermined by his entry into that database.

The applicant's detention had also been proportionate. The applicant had persistently refused to comply with the police's orders. Moreover, there had been no effective alternative way to keep him under surveillance before and during the football match in order to prevent him from organising and taking part in an altercation between hooligans after the match. In particular, separating him from the group and seizing his mobile phone would have been insufficient to prevent him from organising a brawl with a different telephone. The duration of the custody of four hours had been the minimum period necessary as his detention had been necessary until the football match had been over and the hooligan groups had left the football stadium and its vicinity. The applicant's custody had served to prevent serious criminal offences and to maintain public order as no altercation between hooligans from Frankfurt and Bremen had taken place as a result of that custody.

The Government stressed that the police could not be expected to wait for the altercation to start before terminating it, which would have been very difficult, if not impossible, would necessitate a considerable number of police officers and entail dangers for life and limb of those officers as well as of uninvolved third persons. It would also not have sufficed to issue the applicant with a banning order under section 31 § 1 of the Hessian Public Security and Order Act (see paragraph 32 above). The banning order would have had to comprise the entire city of Frankfurt am Main as a hooligan altercation could have been organised anywhere within that city. The police would have been unable to control whether the applicant complied with such an order.

The Court reiterates that Article 5 § 1 protects the physical liberty of the person. It does not concern mere restrictions upon liberty of movement, which are addressed by Article 2 of Protocol no. 4 (see Engel and Others v. the Netherlands, 8 June 1976, § 58, Series A no. 22; Guzzardi v. Italy, 6 November 1980, § 92, Series A no. 39; and Raimondo v. Italy, 22 February 1994, § 39, Series A no. 281-A).

The Convention institutions have repeatedly found that being brought to a police station against one's will and being held in a cell amounted to a deprivation of liberty, even if the interference lasted for a relatively short duration (see, for instance, Murray v. the United Kingdom [GC], 28 October 1994, §§ 49 ss., Series A no. 300-A, concerning custody at an army centre for less than three hours for questioning; Novotka v. Slovakia (dec.), no. 47244/99, 4 November 2003 with further references, concerning one hour spent in police custody; Shimovolos v. Russia, no. 30194/09, §§ 49–50, 21 June 2011, concerning police custody of 45 minutes for questioning; see also Witold Litwa v. Poland, no. 26629/95, § 46, ECHR 2000-III, concerning confinement for six and a half hours in a sobering-up centre).

The Court reiterates that sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see, inter alia, Witold Litwa, cited above, § 49; Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008; and Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 60, ECHR 2012). Only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his liberty (see, among many others, Shimovolos, cited above, § 51).

Under the second alternative of sub-paragraph (c) of Article 5 § 1, the detention of a person may be justified ‘when it is reasonably considered necessary to prevent his committing an offence’. Article 5 § 1 (c) does not, thereby, permit a policy of general prevention directed against an individual or a category of individuals who are perceived by the authorities, rightly or wrongly, as being dangerous or having propensity to unlawful acts. That ground of detention does no more than afford the Contracting States a means of preventing a concrete and specific offence (see Guzzardi, cited above, § 102; Ciulla v. Italy, 22 February 1989, § 40, Series A no. 148; and Shimovolos, cited above, § 54) as regards, in particular, the place and time of its commission and its victim(s) (see M. v. Germany, no. 19359/04, §§ 89 and 102, ECHR 2009). This can be seen both from the use of the singular (‘an offence’) and from the object of Article 5, namely to ensure that no one should be dispossessed of his liberty in an arbitrary fashion (see Guzzardi, cited above, § 102; and M. v. Germany, cited above, § 89).

Under the Court's well-established case-law, detention to prevent a person from committing an offence must, in addition, be ‘effected for the purpose of bringing him before the competent legal authority’, a requirement which qualifies every category of detention referred to in Article 5 § 1 (c) (see Lawless v. Ireland (no. 3), 1 July 1961, pp. 51–53, § 14, Series A no. 3; and, mutatis mutandis, Engel and Others, cited above, § 69; and Jėčius v. Lithuania, no. 34578/97, §§ 50–51, ECHR 2000-IX).

Sub-paragraph (c) thus permits deprivation of liberty only in connection with criminal proceedings (see Ječius, cited above, § 50). It governs pre-trial detention (see Ciulla, cited above, §§ 38–40). This is apparent from its wording, which must be read in conjunction both with sub-paragraph (a) and with paragraph 3, which form a whole with it (see, inter alia, Ciulla, cited above, § 38; and Epple v. Germany, no. 77909/01, § 35, 24 March 2005). Paragraph 3 of Article 5 states that everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of Article 5 shall be brought promptly before a judge — in any of the circumstances contemplated by the provisions of that paragraph — and shall be entitled to trial within a reasonable time (see also Lawless (no. 3), cited above, pp. 51–53, § 14; and Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 72, ECHR 2011 (extracts)).

Detention is further authorised under the second limb of sub-paragraph (b) of Article 5 § 1 to ‘secure the fulfilment’ of an obligation prescribed by law. It concerns cases where the law permits the detention of a person to compel him to fulfil a specific and concrete obligation incumbent on him, and which he has until then failed to satisfy (see, inter alia, Engel and Others, cited above, § 69; Guzzardi, cited above, § 101; Ciulla, cited above, § 36; Epple, cited above, § 37; A.D. v. Turkey, no. 29986/96, § 20, 22 December 2005; and Lolova-Karadzhova v. Bulgaria, no. 17835/07, § 29, 27 March 2012).

A wide interpretation of sub-paragraph (b) of Article 5 § 1 would entail consequences incompatible with the notion of the rule of law from which the whole Convention draws its inspiration (see Engel and Others, cited above, § 69; and Iliya Stefanov v. Bulgaria, no. 65755/01, § 72, 22 May 2008). That provision therefore does not justify, for example, administrative internment meant to compel a citizen to discharge his general duty of obedience to the law (see Engel and Others, cited above, § 69; and Schwabe and M.G., cited above, § 73). Likewise, the duty not to commit a criminal offence in the imminent future cannot be considered sufficiently concrete and specific to fall under Article 5 § 1 (b), at least as long as no specific measures have been ordered which have not been complied with (see Schwabe and M.G., cited above, § 82).

In order to be covered by Article 5 § 1 (b), the arrest and detention must further aim at or directly contribute to securing the fulfilment of the obligation and not be punitive in character (see already Johansen v. Norway, no. 10600/83, Commission decision of 14 October 1985, Decisions and Reports (DR) 44, p. 162; Vasileva v. Denmark, no. 52792/99, § 36, 25 September 2003; Gatt v. Malta, no. 28221/08, § 46, ECHR 2010; Osypenko v. Ukraine, no. 4634/04, § 57, 9 November 2010; and Soare and Others v. Romania, no. 24329/02, § 236, 22 February 2011). If sub-paragraph (b) could be extended to cover punishments, such punishments would be deprived of the fundamental guarantees of sub-paragraph (a) (see Engel and Others, cited above, § 69; and Johansen, cited above, p. 162).

In addition, it is required that the nature of the obligation within the meaning of Article 5 § 1 (b) whose fulfilment is sought must in itself be compatible with the Convention (see already McVeigh, O'Neill and Evans v. the United Kingdom, nos. 8022/77, 8025/77 and 8027/77, Commission's report of 18 March 1981, DR 25, p. 15, § 176; and Johansen, cited above, p. 162). As soon as the relevant obligation has been fulfilled, the basis for detention under Article 5 § 1 (b) ceases to exist (see Vasileva, cited above, § 36; Epple, cited above, § 37; Osypenko, cited above, § 57; Sarigiannis v. Italy, no. 14569/05, § 43, 5 April 2011; and Lolova-Karadzhova, cited above, § 29).

Finally, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question and the importance of the right to liberty (see Vasileva, cited above, § 37; Epple, cited above, § 37; and Gatt, cited above, § 46). The nature of the obligation arising from the relevant legislation including its underlying object and purpose, the person being detained and the particular circumstances leading to the detention as well as its duration are relevant factors in drawing such a balance (see Vasileva, cited above, §§ 37–38 with further references; Iliya Stefanov, cited above, § 72; Gatt, cited above, § 46; and Soare and Others, cited above, § 236).

The Court further reiterates that Article 5 § 1 of the Convention requires that any deprivation of liberty be ‘lawful’, which includes the condition that it must be effected ‘in accordance with a procedure prescribed by law’. The Convention here essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see, inter alia, Witold Litwa, cited above, §§ 72–73; and Vasileva, cited above, § 32).

The Court has to determine, first, whether the applicant's arrest and confinement in the context of the football match on 10 April 2004 amounted to a deprivation of liberty for the purposes of Article 5 § 1. It notes that the applicant was arrested by the police in a pub in Frankfurt am Main at approximately 2.30 p.m. and was brought to and detained in a police station against his will until approximately 6.30 p.m. in order to prevent him from committing an offence. Having regard to its case-law (see paragraph 64 above), the Court considers that, despite the relatively short duration of the detention, the applicant was thereby deprived of his liberty within the meaning of Article 5 § 1. The Government indeed did not contest this.

That detention was justified only if it complied with one of the permissible grounds for a deprivation of liberty listed in sub-paragraphs (a) to (f) of Article 5 § 1.

The Court further considers that the applicant's detention, based on section 32 § 1 no. 2 of the Hessian Public Security and Order Act, was lawful and effected in accordance with the procedure prescribed by domestic law. This was indeed not contested by the parties.

Having regard to the foregoing, the Court concludes that, the applicant's detention having complied with sub-paragraph (b) of Article 5 § 1, there has been no violation of Article 5 § 1 of the Convention.