THE FACTS

The facts of the case as submitted by the applicant may be summarised
as follows:

The applicant is a German citizen born in 1929 and at present detained
in prison at B., Federal Republic of Germany.

On .. December 1968 the Regional Court (Landgericht) of F. convicted
the applicant of fraud in recidivism and sentenced him to five years'
imprisonment; by judgment of .. October 1966 the same court convicted
the applicant for fraud in 16 other cases to another five years'
imprisonment. In both judgments the Court also decided that the
applicant should be detained in preventive detention
(Sicherungsverwahrung) after having served his sentence. On .. June
1967, however, it had been decided to give the applicant a collective
penalty (Gesamtstrafe) of eight years' imprisonment instead of the
above two separate penalties, followed by preventive detention. This
decision has become res judicata (rechtskräftig).

On .. September 1968 the applicant requested the Regional Court at F.
to decide that the execution of the above sentence was unlawful and
that he should be released according to the provisions of Article 458
of the German Code of Criminal Procedure (Strafprozessordnung). The
applicant submitted that Articles 20a, 42e and 264 of the German
Criminal Code (Strafgesetzbuch), which form the basis of his
conviction, violated the provision of the German Basic Law
(Grundgesetz), the European Convention on Human Rights and the general
principles of international law. Article 20a of the Criminal Code
provides special rules for penalties for habitual criminals, Article
42e regulates the preventive detention for dangerous habitual criminals
and Article 264 gives the details as to the crime of fraud in
recidivism.

By decision of .. October 1968 the Regional Court at F. dismissed the
applicant's request. The Court held that the applicant's complaints
were inadmissible, since the lawfulness of a final judgment which is
the basis of the execution of the sentence cannot be examined in
proceedings concerning the execution of the sentence. The Court further
pointed out that the Federal Court (Bundesgerichtshof), by judgment of
July 1962, had declared that Article. 20a of the Criminal Code was not
at a variance with the Basic Law, and that the Federal Constitutional
Court (Bundesverfassungsgericht) had also found that Article 42e of the
above Code did not violate the Basic Law. The Court also expressed its
opinion that Article 264 was not unconstitutional and consequently
valid.

On the applicant's immediate appeal (sofortige Beschwerde), the Court
of Appeal (Oberlandesgericht) at F., on .. December 1968, confirmed the
Regional Court's decision.

The applicant then lodged a constitutional appeal
(Verfassungebeschwerde) with the Federal Constitutional Court. He
alleged that Articles 20a and 42e of the Criminal Code violated
Articles 2, 3, 103 and 104 of the German Basic Law, since they were
added to the Criminal Code under the Nazi regime and, consequently,
could not be considered as being "law" within the meaning of the German
law. He also indicated that, according to Article 5 of the Convention,
no one can be detained in prison unless such deprivation of the
personal liberty was provided for by law. Since the above Articles of
the Criminal Code were not enacted as "laws" in a democratic and
parliamentary sense, such as provided under the Basic Law, they could
not also be considered as being laws in the meaning of Article 5 of the
Convention.

By decision (Beschluss) of .. July 1969, the Federal Constitutional
Court dismissed the applicant's appeal as being inadmissible. The Court
held that the present appeal was made in the course of proceedings
concerning the execution of a judgment which was given by a court and
which has achieved the force of res judicata. Consequently, the
Constitutional Court could not deal with any alleged violation of the
Basic Law as regards this judgment as such. Only if the applicant could
show that the authorities which executed the judgement had committed
new violations of the Basic Law could the Constitutional Court examine
the appeal. This Court further indicated that the applicant should have
made his objections against his conviction on the basis of Articles 20a
and 42e of the Criminal Code in an appeal against the original judgment
of the Court concerned.

The applicant now complains that Articles 1, 5, 13, 14, 17 and 18 of
the Convention were violated in his case. The applicant alleges in this
respect that Articles 20a and 42e of the German Criminal Code
characteristically represented the Nazi ideology towards personal
liberty. Moreover, since these Articles have never been enacted by a
parliament, hence they have no democratic origin, they cannot be
considered as being "law" within the meaning of Article 5 of the
Convention. He also alleges that these Articles are not binding law
under the German Basic Law, but are applied by the German courts only
on a customary basis and cannot, consequently, serve as a valid basis
for his detention in prison.

THE LAW

Whereas the applicant submits that his preventive detention
(Sicherungsverwahrung) under Articles 20a and 42e of the German Penal
Code violated Article 5 (1) (Art. 5-1) of the Convention which permits
detention of a person only in certain circumstances and "in accordance
with a procedure prescribed by law"; that the above Articles of the
Penal Code were the sole legal basis of his detention; that these
Articles cannot be considered as being "law" within the meaning of
Article 5 (Art. 5) since, having been enacted under the Nazi regime on
24 November 1933, they characteristically represent the Nazi ideology
in regard to personal liberty; further, that these provisions, having
never been enacted by a parliament, had not democratic origin and were
not binding law under the German Basic Law (Grundgesetz); but were
applied by the German courts only by way of custom; whereas, for these
reasons, the applicant complains that no valid basis existed for his
detention in prison;

Whereas the Commission accepts that Articles 20a and 42e of the German
Penal Code had been introduced into the German Penal Code by a law of
24 November 1933 and therefore under the Nazi Government; that these
amendments of the Penal Code were not approved by Parliament but were
made under special legislative conditions, namely on the basis of the
Special Powers Act 1933 (Ermächtigungsgesetz);

Whereas the Commission notes that, as regards the legal status
generally of such laws as come into force prior to the entry into force
of the Basic Law, Article 123 (1) thereof provides as follows: "Law
from the period prior to the meeting of the Federal Parliament remains
in force, insofar as it is not incompatible with the Basic Law" ("Recht
aus der Zeit vor dem Zusammentritt des Bundestages gilt fort, soweit
es dem Grundgesetz nicht widerspricht"); that, consequently, all law,
which was enacted during the period of Nazi Government and which is not
incompatible with the Basic Law, remains in force and is valid today;

Whereas, with regard to the question whether preventive detention was
incompatible with the Basic Law, the German Federal Constitutional
Court held (BVerfGE 2, 118): "Article 104 (1) of the Basic Law provides
that any restriction of personal liberty has to have a legal basis.
This basis is in the present case Article 42e of the Penal Code ...";
that this Court thus held that Article 42e of the Basic Law was not
incompatible with the Basic Law and it follows that the provisions
concerning preventive detention, as were added to the German Penal Code
under the Nazi Government, are considered to be still in force and not
abrogated by the Basic Law;

Whereas, moreover, this jurisprudence regarding the validity of
restrictions of personal liberty affected under Nazi laws, which do not
involve violations of the German Basic Law, was similarly applied by
many German courts in different situations (see Court of Appeal of
Cologne , NJW 1962, p. 1216; Court of Appeal of Bavaria, NJW 1962, p.
453; Court of Appeal of Berlin, NJW 1963, p. 2135);

Whereas, the Court of Appeal of F. in its decision on the applicant's
appeal given on .. December 1968, found that: "Insofar as the convicted
alleges that the provisions of Articles 20a, 42e of the Penal Code have
been introduced by the law of 24 November 1933, that, consequently,
they were not enacted through the process of a democratic parliamentary
legislature, and that, therefore, they would not be formal law within
the meaning of Article 104 (1) of the Basic Law;

Whereas, thereby, he attacks the lawfulness of the judicial decision
... No objections exist as regards the lawfulness of the applicant's
conviction and the application of Articles 20a and 42e of the Penal
Code. The Penal Code has been again promulgated, including these
Articles in their present wording, on 25 August 1953. Thereby, the
legislature has included these provisions within its legislative
intention; this has the result that their validity cannot any longer
be questioned on the ground of their introduction by law of 24 November
1933. The legislative aim of Articles 20a and 42e of the Penal Code
was, moreover, already included in the draft Penal Code of 1925 and
1927."

Whereas the Commission, noting the reasons given by the German courts,
is satisfied that Articles 20a and 42e of the German Penal Code are
valid law under the Basic Law since these provisions were not
incompatible with the Basic Law and since, in any event, the Federal
legislature, when again promulgating the Penal Code in 1953, had
included the above provisions in the new version;

Whereas, consequently, the Commission finds that the applicant was kept
in preventive detention in accordance with the provisions of Article
5 (1) (a) (Art. 5-1-a) of the Convention, since it was a "lawful
detention of a person after conviction by a competent court" within the
meaning of the said Article; whereas, in this respect, the Commission
also refers to its constant jurisprudence (see inter alia decision on
the admissibility of Application No. 99/55, Yearbook, Vol. 1, p. 160);

Whereas the application is manifestly ill-founded and must be rejected
in accordance with Article 27, paragraph (2) (Art. 27-2), of the
Convention;

Now therefore the Commission DECLARES THIS APPLICATION INADMISSIBLE