Ostendorf v Germany: ECHR 7 Mar 2013

The applicant was registered on a German database as a person prepared to use violence in the context of sports events. He travelled with a group of others from Bremen to Frankfurt in order to attend a football match. They were kept under police surveillance. Some (not the applicant) were searched and found to be in possession of things associated with the perpetration of crowd violence. The applicant was arrested at a pub. He was taken to a police station close to the football stadium where he was detained until one hour after the match had ended. In all, he was under arrest and in detention for about four hours. He was not charged at any stage. The German courts rejected his complaints of unlawful arrest and detention.
Held: The arrest and detention were lawful pursuant to Article 5 (1)(b) but not in relation to Article 5(1)(c). It is with Article 5(1)(c) that we are concerned at this stage.
Under the second alternative of subparagraph (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 . .
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 (No3) . . ).
Subparagraph (c) thus permits deprivation of liberty only in connection with criminal proceedings . . It governs pre-trial detention . . This is apparent from its wording, which must be read in conjunction both with subparagraph (a) and with paragraph 3, which form a whole with it . . 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 a trial within a reasonable time . .
The Court . . recalls that under paragraphs 1(c) and 3 of Article 5, 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’ and that the person is ‘entitled to trial within a reasonable time’. Under its long established case law, the second alternative of Article 5 (1)(c) therefore only governs pre-trial detention and not custody for preventive purposes without the person concerned being suspected of having already committed a criminal offence . .
It is, however, clear that the aim of his detention was purely preventive from the outset. As noted above, it is indeed uncontested that the applicant in the present case was not suspected of having committed a criminal offence as his preparatory acts were not punishable under German law. His police custody only served the (preventive) purpose of ensuring that he would not commit offences in an imminent hooligan altercation. He was to be released once the risk of such an altercation had ceased to exist and his detention was thus not aimed at bringing him before a judge in the context of a pre-trial detention and at committing him to a criminal trial.
The Court notes that the Government advocated a revision of the Court’s case-law on the scope of Article 5 ss 1 (c) in this respect. It agrees with the Government that the wording of the second alternative of sub-paragraph (c) of Article 5 ss 1, in so far as it permits detention ‘when it is reasonably considered necessary to prevent his committing an offence’, would cover purely preventive police custody in order to avert imminent specific serious offences which is here at issue.
However, that interpretation could neither be reconciled with the entire wording of sub-paragraph (c) of Article 5 ss 1 nor with the system of protection set up by Article 5 as a whole. Sub-paragraph (c) of Article 5 ss 1 requires that the detention of the person concerned is ‘effected for the purpose of bringing him before the competent legal authority’ and under Article 5 ss 3 that person is ‘entitled to trial within a reasonable time’. As the Court has confirmed in its case-law on many occasions, the second alternative of Article 5 ss 1 (c) is consequently only covering deprivation of liberty in connection with criminal proceedings. In particular, contrary to the Government’s submission, the term ‘trial’ does not refer to a judicial decision on the lawfulness of the preventive police custody. Those proceedings are addressed in paragraph 4 of Article 5.
The Court further observes that, contrary to the Government’s view, the second alternative of Article 5 ss 1 cannot be considered as superfluous in addition to the first alternative of that provision (detention ‘on reasonable suspicion of having committed an offence’). A detention under sub-paragraph (c) of Article 5 ss 1 may be ordered, in particular, against a person having carried out punishable preparatory acts to an offence in order to prevent his committing that latter offence. That person may then be brought before a judge and be put on a criminal trial, for the purposes of Article 5 ss 3, in respect of the punishable preparatory acts to the offence.’
Mark Villiger, P
15598/08 – HEJUD, [2013] ECHR 197, 34 BHRC 738
Bailii
European Convention on Human Rights
Human Rights
Cited by:
CitedHicks and Others, Regina (on The Application of) v Commissioner of Police of The Metropolis CA 22-Jan-2014
The claimants said that the restrictive tactics used by the respondent when policing crowds at a royal wedding.
Held: The appeals failed. The police had reasonable grounds for suspecting that the claimants were likely to cause a breach of the . .
Not followedHicks and Others, Regina (on The Application of) v Commissioner of Police for The Metropolis SC 15-Feb-2017
The claimants had wanted to make a peaceful anti-monarchist demonstration during the wedding of the Duke and Duchess of Cambridge. They complained that the actions of the respondent police infringed their human rights by preventing that . .

These lists may be incomplete.
Updated: 10 February 2021; Ref: scu.471518