CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 décembre 1989

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 15776/89                       by P. and R.H.                          and L.L.                       against Austria             The European Commission of Human Rights sitting in private on 5 December 1989, the following members being present:                MM.   C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                Mr.   H. C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 16 November 1989 by P. and R.H. and L.L. against Austria and registered on 17 November 1989 under file No. 15776/89;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicants, who are represented by Otto Triffterer, professor of criminal law in Salzburg, are citizens of the United States of America, born in 1954, 1951 and 1931 respectively.   They are at present detained in the prison of Wels pending their extradition to the United States.           The facts submitted may be summarised as follows.           The applicants' extradition was requested by the United States on 8 June 1989, on the basis of an indictment preferred against them on 20 November 1987 before the United States District Court, Southern District of Indiana, Indianapolis Division, and warrants of arrest issued against them by the same Court on 23 November 1987 and 21 April 1989.           In the indictment the applicants were charged with various serious drug offences including:           as regards all three applicants:           - conspiracy with a view to large scale distribution of           marijuana in the United States, and to import large quantities           of marijuana from Colombia, South America and elsewhere           to the United States; possession with intent to distribute           large quantities of marijuana; travelling between the           United States and abroad with the criminal intention to           acquire marijuana, distribute it and invest the money           proceeds.   Two counts (Nos. 32 and 33) concerned travelling           for criminal purposes to Austria, i.e. organising from           Austria the transport of some 140,000 lbs. of marijuana           to the United States, and causing the transfer of criminal           proceeds (some $135,000) from the United States to Austria.           These charges were based on Title 21, Sections 841 (a)(1),           846, 952 and 963 and Title 18, Sections 1952 subsection 2           and 1623 of the United States Code;           as regards the first applicant:           - engaging in a continuing criminal enterprise in violation           of Title 21, Section 848, United States Code, by           committing a continuing series of felony violations of           the Controlled Substances Act, in the position of           manager, organiser or supervisor of more than five persons           and making a substantial profit (importation of marijuana           from Colombia, South America and elsewhere into the           United States; unloading of marijuana from the boats used           for importation; sale of marijuana in Indiana and other           parts of the United States; collection, transportation,           investment and other dispositions of the money proceeds)           (Count 11).           As regards the last-mentioned offence, it is provided in Title 21, Section 848, subsection (c) that as regards any sentence imposed under this Section (which according to subsection (a) shall be imprisonment not less than 10 years up to life imprisonment), imposition or execution of such sentence shall not be suspended and probation shall not be granted.           It appears that in the present case the prosecution had requested a life sentence for the first applicant under this head, and a total of some 50 years' imprisonment for the other offences at issue for each of the applicants.           On 28 September 1989 the Linz Court of Appeal (Oberlandes- gericht) found that the extradition requested by the United States was admissible in respect of all offences for which it had been requested, except one (count 34 concerning an alleged perjury offence by the first applicant in connection with statements which he had made in defence in a criminal case; the Court observed that such statements were not punishable in Austria and therefore could not provide a basis for extradition).           As regards the drug offences, the Court rejected the applicants' submission that they were all linked together and, because some of them (counts 32 and 33) had been committed on Austrian soil, subject to exclusive Austrian jurisdiction.   It was possible from a procedural point of view to deal with these offences separately, and this was also required by Article 36 para. 2 of the International Agreement on Narcotizing Drugs (Nairobi Convention of 1961).   The examination of the question of the admissibility of extradition under Section 16 of the Austrian Extradition Act (Auslieferungs- und Rechtshilfegesetz) thus was only justified with regard to the two offences allegedly committed on Austrian soil.           Under this Section an extradition was inadmissible in respect of offences which were subject to Austrian jurisdiction (para. 1) unless special reasons concerning the establishment of truth, the length of the sentence, or the enforcement of the sentence spoke in favour of conducting the proceedings in the requesting State (para. 2). In the latter case the extradition was, however, inadmissible if it was to be feared that, taking all circumstances into account, a conviction in the requesting State would lead to a considerably less favourable treatment of the person concerned than under Austrian law (para. 3).           The Court noted that in the present case Austrian jurisdiction in respect of the two offences in question could only result from Section 64 para. 1 subpara. 4 of the Penal Code (Strafgesetzbuch), i.e. if the offences violated Austrian interests and if an extradition was inadmissible.   There was no violation of Austrian interests if, as in the present case, the offences charged concerned the acquisition and distribution of drugs by foreigners in foreign States, without participation of Austrians.   Furthermore, the extradition was not inadmissible under Section 16 paras. 2 or 3 of the Austrian Extradition Act.   As regards paragraph 2, a prosecution in the United States appeared appropriate (zweckmässig) in view of the fact that it was easier for the American courts to establish the truth on the basis of the evidence situated in the United States.   As regards paragraph 3, the Court considered that the applicants would not, on the whole, be treated considerably less favourably than in Austria if they were prosecuted in the United States.   This was so because they had to expect severe sentences (several prison sentences of 15 years to be imposed cumulatively) already for the purely American offences.   The "Austrian offences" therefore would not weigh heavily beside these penalties. Moreover, there was no generally recognised principle according to which a more severe penalty than the one applicable in the requested State (10-20 years in Austria) could not be imposed by the requesting State, or according to which the former State could demand that a more severe penalty should not be imposed.           As regards the "American offences", the extradition was admissible under the Extradition Treaty between Austria and the United States of 1930 (in the version of 1934) read in conjunction with the International Agreement on Narcotizing Drugs.   Although the Extradition Treaty did not expressly include drug offences, it had been clarified by the Agreement that the latter offences were also extraditable.   The facts charged were punishable in both States, and it was irrelevant in this respect that Austrian and American law did not define the offences in question in exactly the same terms.   In this context the Court also confirmed that the conditions of a criminal association (Bande) and commission of the offences with commercial intention (Gewerbsmässigkeit), as stipulated in the Austrian Narcotic Drugs Act (Suchtgiftgesetz), were met.           The Court then dealt with the question whether there was reasonable suspicion and whether the applicants had adduced evidence shaking that suspicion.   The Court observed that in this respect its jurisdiction was limited and that the principle "in dubio pro reo" did not apply.   It was sufficient that the evidence submitted had been examined provisionally by United States courts and had led to the issuing of judicial warrants of arrest, and that the applicants had not adduced evidence easily verifiable in Austria which showed that the charges against them were unfounded.           The Court finally saw no reason to apply the hardship clause (Section 22 of the Austrian Extradition Act), to doubt reciprocity (Section 3 of the Act) or to assume that the offences were subject to statutory prescription either in Austria or in the United States (Section 18 of the Act).           The Court's decision was transmitted to the Federal Minister of Justice who was competent to take the final decision on extradition.   It appears that before making his decision, the Minister submitted the case to the Attorney General's Office (Generalprokuratur) with a view to examining the applicants' objections against the Court of Appeal's decision.   They had, in particular, claimed that the Court's decision was unlawful and violated the Extradition Act and the Extradition Treaty.   However, on 23 November 1989 the applicants were informed by the Minister that the Attorney General had seen no reason to file a plea of nullity for safeguarding the law (Nichtigkeits- beschwerde zur Wahrung des Gesetzes).           According to the applicants' letter of 1 December 1989 the Minister has already given his consent to the extradition which is to be executed as soon as the Minister's decision has been served upon them.   COMPLAINTS   1.       All applicants complain that there has been a violation of the presumption of innocence (Article 6 para. 2 of the Convention) in that the Court of Appeal allegedly based its finding that the extradition in respect of the Austrian offences was admissible on the assumption that they would be convicted on the American charges.   In doing so, it had failed to consider the possibility that only the Austrian charges could be established, in which case the applicants would suffer considerable disadvantages making their extradition inadmissible under the Austrian Extradition Act.   2.       The first applicant, in addition, complains that his extradition, if carried out, would amount to inhuman and degrading treatment contrary to Article 3 of the Convention, in that he must expect a life sentence under Title 21, Section 848 of the U.S. Code which, according to sub-section (c), cannot be suspended.   A life sentence without any hope of early release, except in case of physical or mental unfitness to serve a penalty, is in his submission incompatible with Article 3 of the Convention.   He invokes decisions to this effect by the German Federal Constitutional Court and the Italian Constitutional Court.   He also claims that his situation is similar to that in the Soering case (Eur.   Court H.R., judgment of 7 July 1989, Series A no. 161).   PROCEEDINGS           The applicants' request for an interim measure under Rule 36 of the Commission's Rules of Procedure was refused by the President on 17 November 1989.           The applicants renewed their above request and further requested that their case be given precedence under Rule 27.   On 5 December 1989, the Commission granted the latter request.   THE LAW   1.       All three applicants complain that the decision granting the request for their extradition violated the presumption of innocence under Article 6 para. 2 (Art. 6-2) of the Convention.   They claim that the Court of Appeal assumed that they would, in any event, be convicted of the "American charges" and therefore the "Austrian charges" would not weigh heavily beside these charges.           Although extradition proceedings do not come within the scope of Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention (cf.   No. 7729/76, Agee v. United Kingdom, Dec. 17.12.76, D.R. 7 p. 164; No. 10479/83, Kirkwood v. United Kingdom, Dec. 12.3.84, D.R. 37 p. 158), the Commission has regarded the applicants as "charged with a criminal offence" within the meaning of Article 6 para. 2 (Art. 6-2) of the Convention.           As the Commission has consistently held, the "right to be presumed innocent until proved guilty according to law" is not only a procedural guarantee in criminal proceedings, but requires all State organs to refrain from statements on the guilt of the accused before that guilt has been established by the competent court.   By contrast, the State organs are not prevented by Article 6 para. 2 (Art. 6-2) of the Convention from making statements on the existence of a criminal suspicion (cf. No. 7986/77, Krause v. Switzerland, Dec. 3.10.78, D.R. 13 p. 73; No. 9295/81, X v. Austria, Dec. 6.10.82, D.R. 30 p. 227; No. 10847/84, R.F. and S.F. v. Austria, Dec. 7.10.85, D.R. 44 p. 238).           In the present case the Linz Court of Appeal was required under Section 16 of the Austrian Extradition Act to examine whether, in respect of the two offences allegedly committed on Austrian soil, the applicants would on the whole be treated considerably less favourably in the United States than in Austria.   In striking the balance, the Court observed that the "Austrian charges" were not the only ones raised against the applicants, and that they had to expect severe penalties regarding the "American charges" to which the lesser "Austrian charges" were linked.           It is true that the Court of Appeal did not expressly consider that the applicants might be convicted only of the "Austrian charges". However, it follows from the context of its judgment that both as regards the "Austrian" and the "American charges" it did not judge the prospects of the criminal proceedings in the United States.   It only had to examine whether the conditions of extradition were met, and in this context, whether the suspicion against the applicants underlying the request for their extradition was contradicted by evidence easily verifiable in Austria.   The Court thus only found the existence of a state of suspicion.           For this reason, there is no appearance of a violation of the principle of presumption of innocence, as guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention.   The   applicants' complaint in this respect   is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The first applicant further complains that, if extradited to the United States, he would risk a life sentence, which could not be suspended.   He invokes Article 3 (Art. 3) of the Convention, which provides:   "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."           However, it does not appear that this complaint was, at least in substance, raised before the Court of Appeal.   The first applicant has not filed his appeal, and the judgment does not deal with this issue.   As the Convention forms part of Austrian constitutional law, the first applicant could have relied on Article 3 (Art. 3) already in the judicial proceedings, but he appears to have done so only in his subsequent representations to the Federal Minister of Justice which, as he himself admits, did not constitute a remedy within the meaning of Article 26 (Art. 26) of the Convention.   The question therefore arises whether the first applicant has exhausted domestic remedies.           However, in any case his complaint under Article 3 (Art. 3) must be rejected for the following reasons:           Under the Commission's case-law a person's deportation or extradition may give rise to an issue under Article 3 (Art. 3) of the Convention only where there are serious reasons to believe that the individual will be subjected, in the receiving State, to treatment contrary to that Article.   This case-law has recently been confirmed by the Court in the Soering case (Eur. Court H.R., judgment of 7 July 1989, Series A no. 161, para. 91).           The first applicant argues that Article 3 (Art. 3) would be violated by his extradition because he would in all likelihood get a life sentence which under the law of the United States could not be suspended.   However, it is not established that the first applicant, if extradited, would actually risk imprisonment for life without any hope of release.   Even if convicted, he might get a lesser sentence, and, even if he should receive a life sentence, he might be released before having completed his sentence.   The possibility under the law of the United States, referred to by the applicant, of release of persons found to be physically or mentally unable to serve a penalty shows concern to prevent treatment incompatible with Article 3 (Art. 3) of the Convention.   The Commission further observes that release before the completion of the sentence by way of an act of grace is not excluded in the present case.           The Commission further recalls its decision on Application No. 7994/77 (Kotälla v. the Netherlands, Dec. 6.5.78, D.R. 14 p. 238) which concerned a death penalty commuted into a life sentence which subsequently had been enforced for thirty years.   In that case the Commission found that Article 3 (Art. 3) of the Convention cannot be read as requiring that an individual serving a lawful sentence of life imprisonment must have that sentence reconsidered by a national authority, judicial or administrative, with a view to its remission or termination.   The Commission is not required to pronounce itself on the question whether the same reasoning would apply with regard to a "normal" life sentence in one of the Convention States (cf. in this respect the judgments of the German Federal Constitutional Court of 21 June 1977, 1 BvL 14/76, BVerfGE 45, 187, and of the Italian Constitutional Court of 7/22 November 1974, Raccolta ufficiale delle sentenze e ordinanze della Corte Costituzionale, vol. 42 (1974) p. 353, to which the first applicant has referred).   The Commission considers that Article 3 (Art. 3) cannot be interpreted in the sense that it would require a procedure for the reconsideration of a life sentence with a view to its remission or termination in any country to which extradition from a Convention State is envisaged.           The Commission concludes that first applicant's complaint under Article 3 (Art. 3) is manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission          (H.C. KRÜGER)                               (C.A. NØRGAARD)