CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 décembre 1963

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   Whereas the facts presented by the Applicant may be summarised as follows:   The Applicant is a German citizen born in ...   On ... 1961 the Applicant and a certain Y were arrested on the suspicion that, acting in concert in A and B in 1961 they deceived hotel-keepers with regard to their solvency and defrauded them of specified sums of money, committed burglary in B and a passport falsification offence in A. On ... 1961 the Regional Court of B found both men guilty of these offences and sentenced the Applicant to 10 months imprisonment. Since the time spent in custody pending investigation was deducted from the penalty, the Applicant completed his sentence on ... 1962. He was re-arrested pending extradition, however, on the same day, Austrian police enquiries and later information from the Interpol services of various States having revealed that, prior to their arrest in Austria, the Applicant and Y had been accomplices in criminal offences committed in numerous countries, where they were consequently wanted by the judicial (and police) authorities.   Section 39 of the Penal Code provides that the State in which an offence regarded by Austrian law as a crime was committed shall be asked whether it wishes the extradition of the offender. Accordingly, the Federal Ministry of Justice, acting on a report by the Regional Court of B, asked the Minister of Justice of North Rhine-Westphalia and the Senator for Justice in Berlin (since suspicion first arose concerning criminal offences committed in the Federal Republic of Germany and in Berlin) on ... 1961 whether they wanted the extradition of the above persons. On ... 1961 the Senator for Justice in Berlin did, in fact, request the extradition of the Applicant for criminal proceedings, warrants for his arrest having been issued by the Court in Berlin on ... 1961 and ... 1961 on grounds of criminal offences committed by him in collaboration with Y in the Federal Republic of Germany, the Netherlands, Belgium, France, Spain, Italy and Switzerland. The Senator for Justice in Berlin made a request at the same time for the extradition of Y, but only on account of the criminal offences he had committed in Berlin. In accordance with Section 39 of the Penal Code, this entailed asking the Netherlands, French and Spanish Governments also, through diplomatic channels, whether they desired the extradition of Y. The French did, in fact, make a formal request on ... 1961 and ... 1962 for the extradition, not only of Y but also of the Applicant. Finally, the Spanish Government, having first of all requested the extradition of Y asked in ... 1962 that the Applicant be extradited first to France and not to Berlin, since he could not subsequently be extradited from there to France on account of his German nationality.   Despite the individual time-limits set for the submission by the Governments concerned of requests for extradition, delays occurred owing to the fact that a number of requests were received late while others were not at first presented in the proper form. Further delays were caused because the documents transmitted with the requests had first to be translated.   Finally, requests had been filed by three Governments for the Applicant's extradition, partly on grounds of the same offences. These requests could not be dealt with individually, but had to be examined conjointly so that it could be decided which request should be given priority - in other words to which Government the Applicant was to be handed over first - and whether and how far his subsequent extradition by that Government to the others was permissible. Furthermore the decisions regarding the Applicant's and Y's extradition had to be taken jointly, it being necessary, owing to their complicity, to secure a confrontation of the two accused. Finally, authorization had to be obtained from the transit countries for the extradition of the accused to France and/or Spain through their territory.   Not until ... 1963 was it known definitely which of the Governments concerned desired the extradition of the Applicant. In order to facilitate extradition proceedings, the Federal Ministry of Justice on ... 1963 instructed the Regional Court of B to draw up a report on the case, to be placed at the Court's disposal.   Since investigations conducted meanwhile had confirmed suspicion regarding further offences committed by the Applicant in other States, the Federal Ministry of Justice asked the Swiss and Belgian Governments through diplomatic channels on ... 1962 whether they wanted the extradition of the Applicant and Y; these States, however, replied in the negative. Consequently, it was not until ... 1963, after various questions concerning the said extradition requests had been cleared up and the Judge's Council (Ratskammer) of the Regional Court of B had submitted its report on ... 1963 in accordance with Section 59 of the Code of Criminal Procedure, that the Court of Appeal of B was able to take a joint decision concerning all the requests. The Court gave priority to the French Government's request and authorised the Applicant's and Y's extradition to France first, subject to that country's consent to their eventual extradition to Spain and Berlin. In its decision, the Court took account, in particular, of the French Government's statements and the advisability of the Applicant and Y being jointly tried by - in succession - the competent French, Spanish and German Courts for the offences committed jointly by them. The Applicant and Y were accordingly handed over to the Swiss authorities on ... 1963 for their transfer to France.   In November and December 1962 the Applicant complained to the Ministry of Justice and to Parliament alleging an undue delay in the extradition proceedings, but apparently never received a reply. On ... 1963 he lodged a formal complaint (Dienstaufsichtsbeschwerde) with the Court of Appeal (Oberlandesgericht) of B, which was rejected on ... 1963 in a non-public session at which the Chief Public Prosecutor (Oberstaatsanwalt) was heard but the Applicant was not represented. In the beginning of ... 1963 he was orally informed of the above decision of ... 1963 by the Court of Appeal. He was, however, refused a copy of the decision.   Whereas the Applicant alleges violations of the following Articles of the Convention:   - Article 5, paragraph (1) (c) and (f), in that as from ... 1962 he is detained without a court decision to that effect; - Article 5, paragraph (3), in that the question of his extradition was not decided within a reasonable time; - Article 6, paragraph (3) (c), in that in spite of his request he was not given legal assistance during the extradition proceedings; consequently, he was not represented at the hearing of his case on ... 1963 by the Court of Appeal of B; - Article 6, paragraphs (2) and (3), in that under the pretext of "danger of escape" he is detained for a period which, in connexion with further convictions in Germany, France and Spain, will be out of proportion to the crimes committed, in particular, in view of his young age and his lack of a previous record; - Article 13, in that his complaints were either ignored or rejected.   Whereas the Applicant demands that the period spent in detention pending extradition shall be taken into account for the purposes of the calculation of the sentence to be given by a French court.   THE LAW   Whereas, in regard to the alleged violation of Article 5, paragraphs (1) (c) and (f) and (3) (Art. 5-1-c, 5-1-f, 5-3) of the Convention, it is to be observed that, under Article 26 (Art. 26) of the Convention the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law; whereas, under Article 113 of the Code of Criminal Procedure, the Applicant could have appealed to the Judge's Council of the Regional Court of B against any decision rejecting his request for a release; whereas, furthermore, under Article 114 of the same Code he could have lodged a further appeal with the Court of Appeal of B against a decision of the Judge's Council; and whereas the Applicant failed to avail himself of any of these remedies; whereas the disciplinary complaint (Dienstaufsichtsbeschwerde) lodged by the Applicant on ... 1963 cannot be considered to constitute an appeal within the meaning of these provisions of the Code of Criminal Procedure; whereas, therefore, he has not exhausted the remedies available to him under Austrian law; whereas, moreover, an examination of the case as it has been submitted, including an examination made ex officio, does not disclose the existence of any special circumstances which might have absolved the Applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal; whereas, in particular, the Applicant's ignorance of the existence of these remedies does not constitute any such special circumstance; whereas, in this respect the Commission refers to its decision on the admissibility of Application No. 1211/61 (M. v. the Netherlands - Collection of Decisions, Volume 9, page 46); whereas, therefore, the condition as to the exhaustion of domestic remedies laid down in Article 26 has not been complied with by the Applicant; whereas it follows that this part of the Application must be rejected in accordance with Article 27, paragraph (3) (Art. 27-3), of the Convention;   Whereas in regard to the alleged violations of Article 6, paragraphs (2) and (3) (Art. 6-2, 6-3) it is to be observed that these two paragraphs guarantee certain procedural rights to "everyone charged with a criminal offence"; whereas the Applicant, during the proceedings before the Regional Court of B and the Court of Appeal of B concerning his extradition, had already been convicted of the crimes which he committed on Austrian territory and had already served the sentence imposed upon him in respect of these crimes; whereas, in accordance with Article 59 of the Code of Criminal Procedure, the Courts were called upon to decide only the question whether or not the Applicant should be extradited to one or more foreign countries and, if so, to which of the countries which had requested his extradition; whereas, accordingly, during the proceedings before the Austrian Courts, the Applicant was not "charged with a criminal offence" within the meaning of the above two paragraphs;   Whereas it follows that the rights enlisted in paragraphs (2) and (3) are not applicable to the proceedings under Article 59 of the Code of Criminal Procedure; whereas, consequently, this part of the Application is incompatible with the provisions of the Convention and must be rejected in accordance with Article 27, paragraph (2) (Art. 27-2) of the Convention;   Whereas, in respect of the alleged violation of Article 13 (Art. 13) of the Convention, it is to be observed that this Article states that "an effective remedy before a national authority shall be given to everyone whose rights and freedoms as set forth in the Convention are violated"; whereas the Commission has held above that none of the rights and freedoms set forth in the Convention have been violated in the Applicant's case; whereas, therefore, Article 13 (Art. 13) has no application in the circumstances of the present case; whereas in this respect the Commission refers to its decisions on the admissibility of Applications Numbers 472/59 (W. v. the Federal Republic of Germany - Yearbook III, page 206) and 912/60 (W. v. Sweden); whereas it follows that this part of 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.