CASE OF LECOMTE v. GERMANY
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary
6. The applicant was born in 1981 and lives in Lüneburg. 7. The applicant is an anti-nuclear and environmental activist. She has repeatedly used her climbing skills to draw public attention to her protest. 8. On 6 November 2008 around 11 a.m. the applicant and three further persons belonging to the Robin Wood organisation, an environmental protection group, climbed on the arch of a railway bridge. The group fixed banners expressing protest against the transport, by train, of radioactive waste from La Hague, France, to the interim storage facility in Gorleben, scheduled from 7 to 9 November 2008. The members of the group refused to have themselves roped down by the police, who had dissolved their assembly. They were finally roped down by Federal Police’s mountain rescue team. The police then arrested only the applicant at 2.40 p.m. while the other three participants remained at liberty. They further seized the banners and the climbing equipment. 9. On 6 November 2008 at 5.30 p.m. the Lüneburg District Court, having heard the applicant and the Lüneburg police, ordered the applicant’s detention for preventive purposes under section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act (Niedersächsisches Gesetz über die öffentliche Sicherheit und Ordnung, see paragraph 42 below). That detention was to last until the arrival of the “castor” containers in Dannenberg train station and until 10 November 2008, 0.00 p.m. at the most. 10. The District Court found that the applicant, who had been represented by counsel throughout the proceedings before the domestic courts, and three further persons had let themselves down on a rope on a railway bridge. They had unrolled banners protesting against the castor transport. A commuter train had to be stopped because its passage would have put the protesters at risk. 11. The District Court considered that the applicant’s detention was indispensable in order to prevent the imminent commission of a regulatory offence of considerable importance to the general public, as required by section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act. There was a risk that the applicant would block the forthcoming transport of the castor containers scheduled from 7 to 9 November 2011 by a climbing action. Thereby, she would commit regulatory offences under the Railway Construction and Operation Act (Eisenbahn-Bau- und Betriebsordnung) and the Assembly Act (Versammlungsgesetz) which would be dangerous to the public. That risk was also imminent in the applicant’s case as she was known for expressing political protest, including protest against the transport of castor containers, by climbing actions and for being ready to breach the law in that context. 12. On 7 November 2008 at 9.15 p.m. the Lüneburg Regional Court, having heard the applicant in person at 2.10 p.m., dismissed the applicant’s appeal against the District Court’s decision. 13. On 9 November 2008 at 5.25 p.m. the Lüneburg District Court quashed the order of 6 November 2008 for the applicant’s detention for preventive purposes and ordered the applicant’s immediate release. 14. The District Court found that, having regard to the applicant’s deteriorating state of health, there was no longer a risk that the applicant would commit a criminal or regulatory offence of considerable importance to the general public, as required by section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act, in the context of the transport of castor containers to Gorleben. Moreover, her continued detention was no longer proportionate in these circumstances. The District Court noted that medical doctor C., who had visited the applicant in detention on the latter’s request, had confirmed that the applicant suffered from serious rheumatism which necessitated her to move continuously and was in a poor mental condition. Her detention in Braunschweig Police Station, with little possibility to move, had already led to her joints having stiffened. The doctor had explained that she was not in a position to assess the applicant’s fitness for detention, but that it appeared excluded that the applicant would be capable of carrying out a climbing action in the days to come. 15. The applicant was released on the same day at 6.32 p.m. 16. Following her arrest on 6 November 2008 at 2.40 p.m. the applicant, having been found by a doctor of the Federal Police not to suffer from any health problems, was brought before the Lüneburg District Court which ordered her detention at 5.30 p.m. Following the District Court’s decision, the applicant was accompanied home by the police officers from 5.45 p.m. to 6.45 p.m. in order to enable her to take her own clothes and medication. She was detained in a cell in the Lüneburg Police Station from 7 p.m. onwards until 7 November 2008 at approximately 1.40 p.m., when she was brought to the Lüneburg Regional Court. The applicant’s small cell, equipped with a mattress and a chair, was lighted at least via a ventilation slot and by electric light. 17. Between the end of the hearing of the applicant by the Lüneburg Regional Court on 7 November 2008 at around 3 p.m. and its decision at 9.15 p.m. on that day, the applicant essentially stayed in the office area of the Lüneburg Police Station. She went outside for a walk on the banks of the Ilmenau river with the police officers three times during that period. 18. Following the Regional Court’s decision, the police decided to transfer the applicant to the Braunschweig Police Station which was considered being better equipped for police custody. When the applicant complained about breathing problems during the journey, the police called an ambulance. When both the ambulance crew and a police doctor had found that the applicant did not suffer from health problems, the transfer was continued in the ambulance. 19. The applicant was detained in the Braunschweig Police Station from 8 November 2008, 2.10 a.m. until her release on 9 November 2008 at 6.32 p.m. Her cell was equipped with a bed, an empty desk, a chair and an open cupboard and had a barred window with frosted glass. In the corridor of the detention wing, which she had to pass to go to the toilet, photographs of shackled persons were exposed. These included a picture of a person subject to ankle and hand cuffs, with both cuffs being tied together by a chain in the person’s back lying on a mattress on the ground. 20. During the applicant’s detention in the Braunschweig Police Station, the light in her cell remained switched on throughout the applicant’s first night in that cell. The applicant had climbed on the cupboard in her cell and passed the night thereon, failing to comply with the police’s order to descend. The applicant was taken out for a walk on the premises of the Braunschweig Police Station, which did not dispose of a closed courtyard, on 8 November 2008 from 2.20 p.m. until 3.02 p.m., being loosely shackled to a female police officer. On 9 November 2008 the applicant was allowed to stay outside on those premises from 12.22 p.m. until 12.35 p.m., without being shackled; she climbed on a tree on that occasion. The applicant was supplied with writing material on 8 November 2008. She was further allowed to receive three visits from a friend and two from her doctor C. She was also allowed to telephone her lawyer and her partner several times. 21. On 15 July 2009 the Lüneburg District Court dismissed the applicant’s action of 8 November 2008 under section 19 § 2 of the Lower Saxony Public Security and Order Act (see paragraph 43 below) against the Lüneburg police for a finding that both the order for her detention and the conditions of its execution had been unlawful. 22. As regards the lawfulness of the applicant’s detention the District Court, endorsing the findings of fact made by the Regional Court in its decision of 7 November 2008 (see paragraph 12 above) as well as its reasoning, confirmed that the detention had complied with section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act. 23. As regards the execution of the detention order against the applicant, the District Court considered that the manner in which the detention had been enforced had been lawful and had complied, in particular, with the provisions of the Police Custody Regulations (Polizeigewahrsamsordnung, see paragraph 45-49 below). 24. The District Court noted that the detention order was executed in the detention wing of the Lüneburg Police Station until 7 November 2008 and subsequently in the detention wing of the Braunschweig Police Station. 25. As to the applicant’s complaint that her detention cells did not have windows, but only ventilation slots, the District Court considered that the equipment of the detention cells had complied with no. 15 of the Police Custody Regulations (see paragraph 49 below) and that there had been enough light. The recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) were irrelevant here. The photographs of shackled persons exposed in the detention wing of the Braunschweig Police Station may have been tasteless, but did not render the applicant’s detention unlawful as a result of intimidation. 26. Moreover, there had not been a breach of the right to sufficient night’s rest provided by no. 12 of the Police Custody Regulations (see paragraph 48 below). In Lüneburg, some noise made by a ventilator may have made it more difficult for the applicant to fall asleep, but the police was not obliged to be considerate of individual sensitivities. The fact that the light had remained switched on all night in Braunschweig had been a consequence of the applicant’s own behaviour. She had insisted spending the night on the cell’s cupboard the height of which was 1.90 metres. The light had therefore been necessary for her own protection. It had not been possible for the police to guarantee that, in case the applicant had fallen down from the cupboard, they would notice it immediately otherwise. According to the District Court, the applicant could ask herself whether she would have preferred having been shackled for her protection instead. 27. Furthermore, the court noted that on 8 November 2008 the applicant had been outside on the premises of the Braunschweig Police Station from 2.20 p.m. until 3.02 p.m. She had to be shackled as, being an excellent climber, there had been a risk that she would climb on trees or buildings and abscond. The applicant had not, therefore, been “taken for a walk like an animal” on the parking. On 9 November 2008 the applicant had been outside from 12.22 p.m. until 12.35 p.m. She had not been shackled and had been allowed to climb on a tree. She had not objected to returning to the detention wing afterwards. 28. The District Court further considered that the applicant had failed to substantiate that her state of health in detention had deteriorated in a manner so as to render her detention disproportionate already prior to the District Court’s decision of 9 November 2008 ordering her release. There had not been a written and impartial medical report proving the applicant’s allegation in that respect. The doctor who had visited the applicant in detention and had persuaded the then competent District Court judge to order her release had probably been a sympathiser. 29. On 28 October 2009 the Lüneburg Regional Court dismissed the applicant’s appeal against the District Court’s decision of 15 July 2009. 30. As to the legality of the applicant’s detention, the Regional Court, endorsing the findings in its decision of 7 November 2008, confirmed that the applicant’s detention as such had complied with section 18 § 1 no. 2 of the Lower Saxony Public Security and Order Act. 31. The Regional Court further confirmed that the conditions of the applicant’s detention, albeit onerous for the applicant, had complied with the applicable legal provisions and had not been so unacceptable as to render the execution of her detention unlawful. 32. As regards the applicant’s detention during the first night in the detention cell in the Lüneburg Police Station, the Regional Court found that the cell had been uncomfortable, but had complied with no. 15.1 of the Police Custody Regulations in the version then in force (see paragraph 49 below). In that police station there were no detention cells suitable for a deprivation of liberty lasting several days. Despite this, the police had convincingly explained that transporting the applicant to and back from Braunschweig for the hearing before the Regional Court the following day would have restricted her even more in her liberty of movement. Furthermore, she had not complained to the police about the noise at night emanating from a ventilator. 33. Moreover, the Lüneburg police had taken care of the applicant’s well-being after her hearing before the Regional Court (on 7 November 2008 from 2.10 p.m. until 2.50 p.m.) while they waited for the Regional Court’s decision until approximately 9 p.m. with the applicant in an office in the Lüneburg Police Station in that they had taken her outside three times. 34. As regards the applicant’s subsequent detention in the Braunschweig Police Station, the Regional Court noted that the applicant arrived at that station on 8 November 2008 at 2.10 a.m. after the crew of the ambulance called by the police and a police doctor had confirmed her fitness for detention despite the breathing difficulties she had informed the police of. The Regional Court further confirmed the District Court’s finding that the pictures of shackled persons in the corridor of the detention wing – which included a photograph of a person subject to ankle and hand cuffs – may have been tasteless. However, it had neither been shown that the pictures had been put up to intimidate prisoners nor that the applicant had been intimidated in a considerable manner by them. Moreover, the court considered that it had been lawful for the police to leave the light switched on during the night. It noted that the applicant had climbed on a cupboard measuring 1.90 metres and had failed to descend on the police’s request. By choosing not to descend her by force and by leaving the light on instead the police had respected as much as possible the applicant’s right to liberty. 35. As regards the applicant’s right to stays outside during her detention in Braunschweig, the Regional Court, endorsing the findings of the District Court in this respect, found that the right provided by no. 10 of the Police Custody Regulations (see paragraph 46 below) to be allowed to stay outside for 45 minutes per day in so far as the staffing and infrastructural situation permitted had not been breached. Shackling the applicant to a female police officer on 8 November 2008 had been necessary in order to prevent the applicant from absconding. The applicant, an excellent climber, had previously shown that she was not ready to comply with the police’s orders and there had not been a closed courtyard as in prison. On 9 November 2008 the applicant had not been shackled during her time outside and had been allowed to climb on a tree. She had also been able to move within her cell in order to alleviate ailments resulting from her rheumatism. 36. As regards the applicant’s right to receive visits in detention, the Regional Court observed that under no. 11 of the Police Custody Regulations (see paragraph 47 below), such visits were permitted in so far as they did not endanger the purpose of the detention and were authorised by the police. The said provision had to be read in conjunction with section 20 § 4 of the Lower Saxony Public Security and Order Act (see paragraph 44 below). The Regional Court noted that the Braunschweig Police had received some 200 telephone calls of sympathisers of the applicant, some of whom had insulted the police, which had considerably disturbed the execution of the applicant’s detention. It had not been unlawful in these circumstances for the police not to permit visits by persons who had presented themselves at the police station without having lodged a request for a visit. In any event, the applicant had been visited by three persons while in detention, in addition to the two visits by her doctor, C., who had prescribed her necessary medication and had brought a couple of magazines. Her right to receive visits had not been unlawfully restricted in these circumstances. 37. The Regional Court’s decision was served on the applicant’s counsel on 6 November 2009. 38. By submissions dated 1 December 2009 the applicant, represented by counsel, lodged a constitutional complaint with the Federal Constitutional Court against the decision of the Lüneburg District Court of 6 November 2008, confirmed on appeal by the Lüneburg Regional Court on 7 November 2008, and against the decision of the Lüneburg District Court of 15 July 2009, confirmed on appeal by the Lüneburg Regional Court on 28 October 2009. She argued, in particular, that her right to liberty, the principle of proportionality and her right to freedom of assembly and of expression had been violated by her long illegal detention in unreasonable conditions in order to prevent insignificant regulatory offences. Her complaint was registered under file no. 2 BvR 2794/09. 39. In a letter dated 18 August 2010 addressed to the applicant in person, the Federal Constitutional Court informed the applicant that her constitutional complaint of 1 December 2009 against the decisions of the Lüneburg District Court of 15 July 2009, confirmed on appeal by the Lüneburg Regional Court on 28 October 2009, in so far as the decisions concerned the conditions of her detention, had been registered under file no. 2 BvR 1779/10. 40. On 24 August 2010 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the abovementioned four decisions in so far as these decisions concerned the lawfulness of the applicant’s detention, without giving reasons (file no. 2 BvR 2794/09). The Federal Constitutional Court’s decision was served on the applicant’s counsel on 21 September 2010. In her letter to the Federal Constitutional Court dated 3 October 2010 the applicant’s counsel, referring to the two file numbers assigned to the applicant’s constitutional complaint, the letter of 18 August 2010 and the decision of 24 August 2010, asked for a progress report; she was informed that it was not possible to indicate when a decision on the complaint under file no. 2 BvR 1779/10 would be taken. 41. On 30 May 2012 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the decision of the Lüneburg District Court dated 15 July 2009, confirmed on appeal by the Lüneburg Regional Court on 28 October 2009, without giving reasons (file no. 2 BvR 1779/10). The decision was served on the applicant’s counsel on 18 June 2012.