Am 10.01.2019 entschied der EGMR in der Sache eines Strafgefangenen aus Latvia und hat sich dabei mit grundlegenden Prinzipen der Behandlung in der JVA auseinandergesetzt, so wie Mindestgrundsätze der Vereinten Nationen für die Behandlung der Gefangenen (Nelson-Mandela-Regeln)
Grundsätze der Vereinten Nationen für die Behandlung weiblicher Gefangener und für nicht freiheitsentziehende Maßnahmen für weibliche Straffällige (Bangkok-Regeln)Grundsätze der Vereinten Nationen für die Behandlung weiblicher Gefangener und für nicht freiheitsentziehende Maßnahmen für weibliche Straffällige (Bangkok-Regeln)
CASE OF ĒCIS v. LATVIA (Application no. 12879/09) JUDGMENT STRASBOURG 10 January 2019
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Auszüge der Entscheidung:
The applicant was born in 1981 and lives in the Ventspils district.
The applicant’s imprisonment and the applicable prison regime
On 6 December 2001 the applicant was convicted of kidnapping, aggravated murder and aggravated extortion and sentenced to twenty years’ imprisonment. This judgment was upheld at two levels of appeal and took effect in 2002.
In accordance with section 504(1) of the Sentence Enforcement Code (Latvijas Sodu izpildes kodekss), the applicant was placed at the maximum security level in a closed prison.
On an unspecified date the applicant was transferred to the medium security level of that closed prison.
According to the applicant, in 2008 he realised that there was a difference in the respective treatment of male and female inmates with regard to the execution of custodial sentences. Male inmates who had been convicted of serious crimes started serving their sentences in closed prisons, while female inmates who had been convicted of the same crimes started serving their sentence in partly-closed prisons. As the applicant considered that this had a notable impact on restrictions of various prisoners’ rights, he lodged complaints about this issue with several State institutions.
On 30 September 2008 the applicant was informed that his father had died. On 2 October 2008 he requested permission to leave prison in order to attend his father’s funeral. On the same day the prison director replied that he had no authority to allow the request, as the applicant was serving his sentence at the medium-security level of a closed prison. Under the Sentence Enforcement Code only prisoners serving their sentence at the medium- or minimum- security level in partly-closed prisons were eligible for such leave.
In the years 2012-2015 the applicant was granted one prison leave day per year. The case file contains no information as to the type of prison and security level in which the applicant served his sentence during this time.
On 11 September 2015 the applicant was conditionally released.
The applicant claimed 20,000 euros (EUR) in respect of non pecuniary damage. He submitted no claim with respect to pecuniary damage.
The Sentence Enforcement Code (Latvijas Sodu izpildes kodekss)
Section 503 at the material time provided that both closed and partly closed prisons had three security levels (regimes under which sentences were to be served) – maximum, medium and minimum. Under section 501, both at the material time and at the time of adoption of this judgment, all prisoners who are to serve their sentence in closed or partly-closed prisons start serving their sentence at the maximum-security level of the respective prison. They are all subjected to the “progressive sentence execution” system, under which prisoners can be transferred to more lenient prison regimes following an individual assessment, but only after having served a certain pre-set proportion of their sentence under the stricter regimes.
Section 504(1) sets out two groups of convicts who serve their sentence in closed prisons: men sentenced to deprivation of liberty for the commission of serious or especially serious crimes and convicts who have been transferred from partly-closed prisons owing to gross or systematic regime violations. Prisoners placed in closed prisons have to serve no less than one fourth of the adjudged sentence at the maximum-security level. Following this time they may be transferred to the medium-security level, where they have to serve no less than another fourth of the adjudged sentence before becoming eligible for a transfer to the minimum security level. From the minimum security level prisoners may be transferred to a partly-closed prison or conditionally released before the completion of the sentence.
Section 505(1) lists ten different groups of convicts who serve their sentence in partly-closed prisons, including women serving sentences for intentionally committed crimes. At the relevant time this provision provided that when beginning a sentence a convicted person had to serve no less than one fifth of the adjudged sentence at the maximum-security level. Subsequently, he or she had to serve no less than a further fifth at the medium-security level but the remaining part could be served at the minimum security level. From the minimum security level a convicted person could be transferred to an open prison or conditionally released before the completion of the sentence.
Prisoners serving their sentence in closed prisons, regardless of the applicable prison regime, as well as prisoners serving their sentence in partly-closed prisons at the maximum-security level, were not eligible for prison leave. With respect to prisoners held at the medium- and minimum security level in partly-closed prisons, section 505 stated that they had the right, with the permission of their prison governor, to temporarily leave the prison for up to seven days a year, or up to five days on account of the death or life-threatening illness of a close relative.
RELEVANT INTERNATIONAL LAW AND PRACTICE
A. United Nations
The set of norms and principles established within the United Nations concerning the treatment and protection of detainees is summarised in Khoroshenko v. Russia ([GC], no. 41418/04, §§ 69-75, ECHR 2015). International standards on the protection of women prisoners are described in Khamtokhu and Aksenchik v. Russia ([GC], nos. 60367/08 and 961/11, §§ 27-31, 24 January, 2017).
In addition, the relevant parts of the UN Standard Minimum Rules for the Treatment of Prisoners, as revised by the General Assembly on 17 December 2015 (“the Nelson Mandela Rules”), provide:
“I. Rules of general application
1. The present rules shall be applied impartially. There shall be no discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status. The religious beliefs and moral precepts of prisoners shall be respected.
2. In order for the principle of non-discrimination to be put into practice, prison administrations shall take account of the individual needs of prisoners, in particular the most vulnerable categories in prison settings. Measures to protect and promote the rights of prisoners with special needs are required and shall not be regarded as discriminatory.
Separation of categories
The different categories of prisoners shall be kept in separate institutions or parts of institutions, taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment; thus:
(a) Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women, the whole of the premises allocated to women shall be entirely separate;
The prison administration shall inform a prisoner at once of the serious illness or death of a near relative or any significant other. Whenever circumstances allow, the prisoner should be authorized to go, either under escort or alone, to the bedside of a near relative or significant other who is critically ill, or to attend the funeral of a near relative or significant other.
II. Rules applicable to special categories
A. Prisoners under sentence
1. The fulfilment of these [guiding] principles requires individualization of treatment and for this purpose a flexible system of classifying prisoners in groups. It is therefore desirable that such groups should be distributed in separate prisons suitable for the treatment of each group.
2. These prisons do not need to provide the same degree of security for every group. It is desirable to provide varying degrees of security according to the needs of different groups. ...”
The Grundsätze der Vereinten Nationen für die Behandlung weiblicher Gefangener und für nicht freiheitsentziehende Maßnahmen für weibliche Straffällige (Bangkok-Regeln), supplement the Standard Minimum Rules for the Treatment of Prisoners by addressing the distinctive needs of women prisoners. The relevant parts of the Bangkok Rules provide:
“I. Rules of general application
1. Basic principle
[Supplements rule 2 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)]
In order for the principle of non-discrimination, embodied in rule 6 of the Standard Minimum Rules for the Treatment of Prisoners to be put into practice, account shall be taken of the distinctive needs of women prisoners in the application of the Rules. Providing for such needs in order to accomplish substantial gender equality shall not be regarded as discriminatory.
II. Rules applicable to special categories
A. Prisoners under sentence
1. Classification and individualization
[Supplements rules 93 and 94 of the Nelson Mandela Rules]
The gender-sensitive risk assessment and classification of prisoners shall:
(a) Take into account the generally lower risk posed by women prisoners to others, as well as the particularly harmful effects that high security measures and increased levels of isolation can have on women prisoners;
Social relations and aftercare
[Supplements rules 106 to 108 of the Nelson Mandela Rules]
Prison authorities shall utilize options such as home leave, open prisons, halfway houses and community-based programmes and services to the maximum possible extent for women prisoners, to ease their transition from prison to liberty, to reduce stigma and to re-establish their contact with their families at the earliest possible stage.”
B. Council of Europe
On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member States on the European Prison Rules (which replaced Recommendation No. R (87) 3 on the European Prison Rules), which took into account the developments in penal policy, sentencing practice and the overall management of prisons in Europe. The relevant parts of the amended European Prison Rules read as follows:
1. All persons deprived of their liberty shall be treated with respect for their human rights.
2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.
3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.
Scope and application
13. These rules shall be applied impartially, without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Conditions of imprisonment
Allocation and accommodation
18.10 Accommodation of all prisoners shall be in conditions with the least restrictive security arrangements compatible with the risk of their escaping or harming themselves or others.
Contact with the outside world
24.5 Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so.
24.6 Any information received of the death or serious illness of any near relative shall be promptly communicated to the prisoner.
24.7 Whenever circumstances allow, the prisoner should be authorised to leave prison either under escort or alone in order to visit a sick relative, attend a funeral or for other humanitarian reasons.
34.1 In addition to the specific provisions in these rules dealing with women prisoners, the authorities shall pay particular attention to the requirements of women such as their physical, vocational, social and psychological needs when making decisions that affect any aspect of their detention.
51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody.
51.3 As soon as possible after admission, prisoners shall be assessed to determine:
a. the risk that they would present to the community if they were to escape;
b. the risk that they will try to escape either on their own or with external assistance.
51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk.
51.5 The level of security necessary shall be reviewed at regular intervals throughout a person’s imprisonment.
Objective of the regime for sentenced prisoners
102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.
Implementation of the regime for sentenced prisoners
103.6 There shall be a system of prison leave as an integral part of the overall regime for sentenced prisoners.”
The relevant parts of the Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules read:
“Rule 24.5 places a positive duty on the prison authorities to facilitate links with the outside world. One way in which this can be done is to consider allowing all prisoners leave from prison in terms of Rule 24.7 for humanitarian purposes. The ECtHR has held that this must be done for the funeral of a close relative, where there is no risk of the prisoner absconding (Ploski v. Poland, No. 26761/95, judgment of 12/11/2002). Humanitarian reasons for leave may include family matters such as the birth of a child.”
The relevant parts of Recommendation No. R (82) 16 of the Committee of Ministers to member States on prison leave, adopted on 24 September 1982, read:
“The Committee of Ministers ...
Considering that prison leave contributes towards making prisons more humane and improving the conditions of detention;
Considering that prison leave is one of the means of facilitating the social reintegration of the prisoner;
Recommends the governments of member states:
1. to grant prison leave to the greatest extent possible on medical, educational, occupational, family and other social grounds;
2. to take into consideration for the granting of leave:
- the nature and seriousness of the offence, the length of the sentence passed and the period of detention already completed,
- the personality and behaviour of the prisoner and the risk, if any, he may present to society,
- the prisoner’s family and social situation, which may have changed during his detention,
- the purpose of leave, its duration and its terms and conditions;
3. to grant prison leave as soon and as frequently as possible having regard to the aforementioned factors;
4. to grant prison leave not only to prisoners in open prisons but also to prisoners in closed prisons, provided that it is not incompatible with public safety;
9. to inform the prisoner, to the greatest extent possible, of the reasons for a refusal of prison leave; ...”
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter “the CPT”) following a visit to Latvia that took place from 5 to 15 September 2011 published a report to the Latvian Government, dated 27 August 2013. The relevant parts of that report read:
“47. Before setting out the delegation’s findings regarding the establishments visited, the CPT would like to raise one issue of a more general nature concerning the regime applied to prisoners.
The Latvian Code of Execution of Sentences provides that all prisoners in closed and semi-closed prisons shall be subject to the progressive sentence execution regime, irrespective of the duration of the sentence imposed. Prisoners held in closed prisons serve their sentences in three consecutive regime levels: low, medium and high. The law requires that such prisoners serve at least a quarter of their sentence on the low regime level and demonstrate good behaviour in order to qualify for the medium level. After having served at least a quarter of their sentence on the medium regime level, they may be further transferred to the high regime level ... It is noteworthy that prisoners on the low regime level inter alia have generally limited work opportunities and fewer possibilities for maintaining contact with the outside world ...
The CPT recalls that “imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.” Moreover, although it is for the judicial authority to determine the appropriate length of sentence for a given offence, prison authorities should be responsible for determining security and regime requirements, on the basis of professionally agreed criteria and individual assessments of prisoners. In this context, it is difficult to justify a prisoner being required to serve a minimum part of the prison sentence in a specific regime level (low or medium). In the CPT’s view, progression from one regime level to another should be based on the prisoner’s attitude, behaviour, participation in activities (educational, vocational, or work related), and in general adherence to reasonable pre-established targets set out in a sentence plan. For this purpose, regular individual reviews should be carried out.
The CPT invites the Latvian authorities to review the relevant legislation and practice in the light of the above remarks.” [emphasis and footnotes omitted]
Following the next visit to Latvia that took place from 12 to 22 April 2016 the CPT in its report to the Latvian Government, dated 29 June 2017, referred back to the findings it had made during the visit of 2011. It reiterated its reservations about the “progressive sentence execution” system and emphasised that the progression from one regime level to another should be determined by prison authorities, based on professionally agreed criteria and individual assessments.
The Court has consistently held that in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations. The requirement to demonstrate an analogous position does not require that the comparator groups be identical. An applicant must demonstrate that, having regard to the particular nature of his or her complaint, he or she was in a relevantly similar situation to others treated differently (see, for example, Fábián v. Hungary [GC], no. 78117/13, § 113, ECHR 2017 (extracts)).
In the case of Khamtokhu and Aksenchik (cited above) the male applicants, inter alia, complained about discrimination on the grounds of sex, as life imprisonment could not be imposed on women. The Court found that the applicants were in an analogous situation to that of all other offenders, including female offenders, who had been convicted of the same or comparable offences (see Khamtokhu and Aksenchik, cited above, § 68; compare also Laduna, cited above, §§ 56-58 and Clift v. the United Kingdom, no. 7205/07, §§ 67-68, 13 July 2010).
In the present case the difference in treatment concerns men and women who were convicted of serious or especially serious crimes. Thus, as in Khamtokhu and Aksenchik, it relates to persons who committed the same or comparable offences and were all sentenced to deprivation of liberty (contrast Gerger v. Turkey [GC], no. 24919/94, § 69, 8 July 1999, where the Court found that unfavourable treatment of persons convicted of terrorist offences was a distinction made not between different groups of people, but between different types of offence). As to the nature of the complaint the Court observes that it relates to the manner in which the applicable prison regime affects the restrictions on prisoners’ family life, in particular, with regard to their right to prison leave on compassionate grounds. Accordingly, the complaint concerns an issue that is of equal relevance to all prisoners (compare Varnas v. Lithuania, no. 42615/06, § 113, 9 July 2013).
Thus, the Court finds that in the light of the nature of the particular complaint the applicant can claim to be in an analogous position to that of women prisoners convicted of the same or comparable offences.
Not every difference in treatment will amount to a violation of Article 14. The Court has consistently held that a difference in treatment is discriminatory if it has no objective and reasonable justification – in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, for example, Konstantin Markin, cited above, § 125).
The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. The scope of that margin of appreciation will vary according to the circumstances, the subject matter and the background of the case (see Khamtokhu and Aksenchik, cited above, § 77). The national authorities, whose duty it is also to consider the interests of society as a whole, should enjoy broad discretion when they are asked to make rulings on sensitive matters such as penal policy (ibid., § 85). As pointed out by the Government, the Court has indeed accepted that, in principle, a wide margin of appreciation applies in questions of prisoners and penal policy (see Alexandru Enache v. Romania, no. 16986/12, § 78, 3 October 2017, and Varnas, cited above, § 115).
On the other hand, the Court has repeatedly held that the advancement of gender equality is today a major goal in the member States of the Council of Europe, and very weighty reasons would have to be put forward before such a difference in treatment could be regarded as compatible with the Convention. In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country cannot, by themselves, be considered to amount to sufficient justification for a difference in treatment, any more than similar stereotypes based on race, origin, colour or sexual orientation (see Konstantin Markin, cited above, § 127; Khamtokhu and Aksenchik, cited above; § 78, and Carvalho Pinto de Sousa Morais v. Portugal, no.17484/15, § 46, ECHR 2017).
From the arguments they put forward it can be seen that, according to the Government, the difference in treatment pursued the aim of protecting women prisoners from being adversely affected by identically tailored approaches that would not sufficiently take the specific needs of women prisoners into account.
The Court agrees that a difference in treatment that is aimed at ensuring substantive equality may be justified under Article 14 of the Convention. The Court is mindful of the various European and international instruments drafted to ensure that the distinctive needs of women prisoners are adequately taken into account (see paragraphs 33-37 above). Also the Court has acknowledged that providing for the distinctive needs of women prisoners, particularly in relation to maternity, in order to accomplish substantial gender equality should not be regarded as discriminatory (see Alexandru Enache, cited above, § 77). Accordingly, certain differences in the prison regimes that are applicable to men and women are acceptable and may even be necessary in order for substantive gender equality to be ensured. Nonetheless, also within the context of the penitentiary system and prison regimes a difference in treatment that is based on sex has to have a reasonable relationship of proportionality between the means employed and the aim sought to be realised (ibid., § 70).
The Court turns to the Government’s claim that the Latvian penitentiary system treats comparable groups similarly, as male and female prisoners who serve their sentences at the medium-security level are granted the same privileges (see paragraph 66 above). The Court notes that this claim disregards the fact that the gravity of the regime is determined not only by the security level but also by the type of the prison. Male and female prisoners start serving their sentences in different types of prison, resulting in varied degrees of restrictions of their rights at the medium-security level. In particular, the Sentence Enforcement Code provides that all male prisoners convicted of serious and particularly serious crimes must be placed in closed prisons at the maximum-security level (see paragraphs 22-23 above). Furthermore, no prisoner serving his sentence in a closed prison is entitled to prison leave (see paragraph 25 above). They would acquire such a right only after being moved to a partly-closed prison a transfer they may become eligible for only after serving one half of the imposed sentence (see paragraph 23 above). In contrast, women prisoners who have been convicted of the same crimes are placed in this type of prison from the very beginning of their sentence (see paragraph 24 above).
The aforementioned is confirmed by the applicant’s experience, as at the time that he submitted his request for prison leave to attend his father’s funeral he had already been moved to the medium-security level of the closed prison (see paragraphs 8 and 10 above). His request was not entertained exactly on the grounds of being placed at the medium-security level of the closed prison. Neither the domestic authorities, nor the Government have suggested that there was any other consideration that had informed this decision. Meanwhile, women prisoners in analogous circumstances, that is to say, convicted of the same crimes, given the same sentence, having served the same proportion of the sentence, and having progressed to the medium-security level, would have been eligible for such prison leave.
In justifying this distinction the Government argued that women prisoners, in general, were less violent and less prone to aggression towards other inmates or prison staff, whereas men prisoners were more predisposed to inter-prisoner violence and attempted prison-breaks and they posed higher threats to prison security and staff. The Government have not, however, submitted any data supporting this claim. In particular, the Court lacks information concerning the conduct of the relevant groups of prisoners, namely, men and women convicted of serious or especially serious crimes, with regard to the compliance with prison regime and, even more importantly, their conduct when released on prison leave.
Be it as it may, the Court is not persuaded that even if this claim had been supported by data, it would be sufficient to justify this distinction. Finding otherwise would be tantamount to concluding that all male prisoners, when compared to women who have committed exactly the same offences, are so much more dangerous that no individualised assessment is even purposeful. Such an approach would be incompatible with the case-law of the Court emphasising the need for an individualised risk assessment of all detainees with regard to prison leave (see paragraph 91 below). The Court also refers here to CPT’s repeated criticism of the Latvian “progressive sentence execution” system under which all prisoners are required to spend a predetermined minimum amount of time at both the maximum- and the medium-security level since it is the prison authorities who should be responsible for determining security and regime requirements, on the basis of professionally agreed criteria and individual assessments of prisoners (see paragraphs 39 and 40 above).
The Court fully shares the Government’s proposition that there is no objective need to subject women prisoners to conditions that are stricter than necessary. It emphasises, however, that this principle is equally applicable to male prisoners. The Court notes that while Article 8 of the Convention does not guarantee a detained person an unconditional right to leave prison in order to attend the funeral of a relative, the domestic authorities are called upon to assess each such request on its merits (see Giszczak, cited above, § 36, and Płoski, cited above, § 38). The Court has found a violation of that Article where the domestic authorities had failed to carry out a balancing exercise between the competing interests or had based their refusal solely on the grounds that the domestic law did not provide for such a right (see Császy v. Hungary, no. 14447/11, § 20, 21 October 2014, and Feldman v. Ukraine (no. 2), no. 42921/09, § 35, 12 January 2012).
Finally, the Court emphasises that, although there may be several legitimate penological grounds for a person’s detention, the emphasis in European penal policy is now on the rehabilitative aim of imprisonment (see Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, §§ 111 and 115, ECHR 2013 (extracts)). While this principle applies regardless of the crime committed or the duration of the sentence imposed (ibid., §§ 111-18), it also applies irrespective of the prisoner’s sex. The Court underlines that maintenance of family ties is an essential means of aiding social reintegration and rehabilitation of all prisoners, regardless of their sex (compare Khoroshenko, cited above, § 144). Furthermore, also prison leave is one of the means of facilitating social reintegration of all prisoners (see Mastromatteo v. Italy [GC], no. 37703/97, § 72, ECHR 2002 VIII, and Schemkamper, cited above, § 31).
In the light of that, and not discounting a possibility that certain divergences in the approaches towards male and female prisoners may be justified, the Court does not consider that a blanket ban for men to leave the prison, even for attending a funeral of a family member, was conducive to the goal of ensuring that the distinctive needs of women prisoners are taken into account.
Having found that the refusal to entertain the applicant’s request to attend his father’s funeral on the basis of the prison regime to which he was subjected owing to his sex had no objective and reasonable justification, the Court concludes that this treatment was discriminatory.
There has accordingly been a violation of Article 14 of the Convention, read in conjunction with Article 8 of the Convention.
Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage.
FOR THESE REASONS, THE COURT
1. Declares, unanimously, the application admissible;
2. Holds, by five votes to two, that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8 of the Convention;
3. Holds, by five votes to two,
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 10 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan Blaško Angelika Nußberger
Deputy Registrar President