MÜLLER v. THE CZECH REPUBLIC
Inadmissible
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
The applicant, Mr František Müller, is a Czech national who was born in 1966 and is currently serving a prison sentence in Horní Slavkov (Czech Republic). He is represented before the Court by Mr D. Strupek, a lawyer practising in Prague. On 2 April 1998 the Munich I Regional Court found the applicant guilty of aiding and abetting murder. The court held that on 10 March 1995, a certain D.P. and the applicant had entered a jewellery shop and that D.P. had taken a shop assistant to another room and shot him dead. The applicant was given a mandatory sentence of life imprisonment. D.P. was tried in the Czech Republic and sentenced to thirteen and a half years’ imprisonment. The applicant was initially serving his prison sentence in Straubing Prison in Germany. He could work, move freely in the building for most of the day, freely interact with any of the other 400 prisoners, make an appointment with a psychologist, psychiatrist or social worker at any time, follow vocational courses and study programmes, engage in outdoor exercise for up to three hours a day or more, a wide range of sports activities were available to him, and his cell was ventilated and dark at night. He was entitled to apply for conditional release after serving fifteen years, that is, on 3 May 2012. On 4 December 1998 the Munich Aliens Office issued an administrative expulsion order against the applicant. On 12 November 2007 the Ministry of Justice of Bavaria requested the Czech Republic to take over the execution of the applicant’s sentence. The applicant did not give his consent to his transfer. The Czech Ministry of Justice, however, agreed to the transfer. On 18 August 2008 the Prague Regional Court (krajský soud) validated the German judgment regarding the applicant’s conviction and converted his sentence to fifteen years’ imprisonment. It held that, despite the applicant’s objection to the transfer, all the conditions of the Convention on the Transfer of Sentenced Persons, having regard to the Additional Protocol, had been met. It noted that at the time of the commission of the crime a sentence of more than fifteen years’ imprisonment could have been given under the Czech Criminal Code only, inter alia, on the condition that the possibility of the offender’s rehabilitation was particularly remote. Based on the available evidence, it held that this condition had not been met and thus a sentence of imprisonment of more than fifteen years would not be compatible with Czech law. The Prague Regional Prosecutor (krajský státní zástupce) appealed against the decision, requesting the imposition of a sentence of twenty-five years’ imprisonment because of the exceptional degree of danger to society posed by the applicant’s crime. On 10 October 2008 the Prague High Court (vrchní soud) quashed the Regional Court’s judgment and ruled that the applicant should continue to serve his sentence of life imprisonment without any conversion. It held that the Regional Court had not been entitled to consider whether all the conditions for a life sentence had been met, but only to determine whether under Czech law the sentence imposed by the foreign court was at all possible for the crime in question. As it found that the Czech Criminal Code generally provided for a sentence of life imprisonment for murder, it held that that sentence must continue to be served in the Czech Republic. On 12 February 2009 the Constitutional Court (ústavní soud) dismissed a constitutional appeal by the applicant as manifestly ill-founded. It held that Czech courts could alter a foreign sentence only if the sentence was not envisaged at all under Czech law for the crime in question. On 15 April 2009 the applicant was transferred to the Czech Republic and taken into detention pending a court ruling on the execution of his sentence. On 19 June 2009 the Regional Court ruled that the applicant should serve his sentence in a secure prison (věznice s ostrahou). It held that under the Convention on the Transfer of Sentenced Persons, the penal position of sentenced persons could not be aggravated by their transfer and that this also applied to conditions of detention. Consequently, the applicant could not serve his sentence in a prison with heightened security (věznice se zvýšenou ostrahou) as would normally be the case for prisoners sentenced to life imprisonment. The applicant appealed, arguing that his penal position would be aggravated because the conditions of detention in a Czech secure prison were much harsher than in Straubing Prison, where he had served his sentence before being transferred. On 2 September 2009 the High Court upheld the decision. It held that any disadvantages of a Czech secure prison compared to Straubing prison were offset by the advantages of serving the sentence in the applicant’s home country, where his mother tongue was spoken and where he had better possibilities of visits. Since then the applicant has served his sentence in Horní Slavkov Prison in a section for life-sentenced prisoners. In that prison he allegedly has not been offered any employment; he must spend twenty-three hours a day in his cell or one room on the same floor; he is allowed only one hour, or exceptionally two, of outdoor exercise daily in a very small area; he is able to interact only with two other life-sentenced prisoners; his access to a psychologist or psychiatrist is limited; he cannot follow any vocational or study courses; his cell is lit twenty-four hours a day and it is not possible to open a window in his cell; and there is no possibility of sports activities except for table tennis in summer. The applicant lodged a constitutional appeal, disagreeing, inter alia, with the advantages of serving his sentence in the Czech Republic noted by the High Court. He argued that he had already become accustomed to a German environment, was fluent in German, was visited by people from the outside and could receive parcels without any problem. In comparison, in the Czech Republic he was in contact only with his mother, who, however, lived in Ostrava, which was more than 500 km away from his prison. On 30 June 2010 the Constitutional Court dismissed his constitutional appeal as manifestly ill-founded. Under Article 29 § 2 of the Criminal Code as in force in 1995, an extraordinary sentence of between fifteen and twenty-five years could be imposed by a court only if the degree of danger to society posed by the offender’s crime was very high and the possibility of rehabilitating the offender was regarded as remote. Under Article 29 § 3, a life sentence could be imposed on an offender who had committed murder where: (a) the degree of danger posed by such a crime to society was extremely high because of the particularly contemptible manner in which the crime was committed, or a particularly contemptible motive on the part of the offender, or a particularly serious result of the crime for which it was difficult to compensate, and; (b) the imposition of such a sentence was required for the effective protection of society, and; there was no hope that the offender could be rehabilitated by a prison sentence of between fifteen and twenty-five years’ duration. Under Article 88 § 5 of the Criminal Code a life-sentenced prisoner is eligible for parole after serving a minimum of twenty years of his sentence. Under Article 10 of this Convention the administering State is bound by the legal nature and duration of the sentence as determined by the sentencing State. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure must, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State. Under Article 11, in the case of conversion of a sentence, the competent authority must not aggravate the penal position of the sentenced person, and is not bound by any minimum which the law of the administering State may provide for the offence or offences committed. Under Article 3 § 1 of the Additional Protocol, upon being requested by the sentencing State, the administering State may agree to the transfer of a sentenced person without the consent of that person, where the sentence passed on the latter, or an administrative decision consequential to that sentence, includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing State once he or she is released from prison. Articles 7 and 8 provide: “This Protocol shall be applicable to the enforcement of sentences imposed either before or after its entry into force. 1. Any Contracting State may at any time denounce this Protocol by means of a notification addressed to the Secretary General of the Council of Europe. ... 3. This Protocol shall, however, continue to apply to the enforcement of sentences of persons who have been transferred in conformity with the provisions of both the Convention and this Protocol before the date on which such denunciation takes effect. ...”