Case of European Court of Human Rights, September 07, 2017 (case Stollenwerk v. Germany)

Resolution Date:September 07, 2017

Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)


Information Note on the Court’s case-law 210

August-September 2017

Stollenwerk v. Germany - 8844/12

Judgment 7.9.2017 [Section V]

Article 5

Article 5-4

Review of lawfulness of detention

Rejection of convicted prisoner’s appeal against continued detention without affording him opportunity to reply to prosecution’s submissions: Article 5 § 4 applicable; violation

Facts – The applicant was arrested and remanded in custody in connection with drugs offences. The decision to detain him was reviewed on eight occasions. The applicant was convicted at his trial and given a custodial sentence. He appealed. The trial court also issued a separate order continuing his detention.* The applicant’s appeal against that order and his subsequent request for a hearing were dismissed by the Court of Appeal.

In the Convention proceedings the applicant complained that the proceedings before the Court of Appeal had been unfair since that court, in breach of the principle of equality or arms, had examined both his appeal against the order for his continued detention and his request for a hearing without affording him an opportunity to reply to the Chief Public Prosecutor’s written submissions.

Law – Article 5 § 4: The set of proceedings that led to the court of appeal’s decision not to release the applicant pending the outcome of his substantive appeal had commenced after the trial court’s judgment convicting him. Accordingly, Articles 5 § 1 (c) and 5 § 3 of the Convention were no longer applicable to the applicant’s detention.

Although Article 5 § 4 of the Convention did not normally come into play as regards detention governed by Article 5 § 1 (a) of the Convention (lawful detention after conviction by a competent court), it was applicable in the applicant’s case because domestic law provided that a person is detained on remand until his or her conviction becomes final, including during appeal proceedings, and accorded the same procedural rights to all remand prisoners. Where a Contracting...

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