CASE OF BUIJEN v. GERMANY
Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger
5. The applicant was born in 1950 and lives in Amsterdam. 6. On 20 November 2001 the applicant was arrested in Lübeck in Germany. On 21 November 2001 the Lübeck District Court (Amtsgericht) issued a warrant for the applicant's arrest on suspicion of trafficking in and importing narcotic substances. He was subsequently remanded in custody. 7. Following negotiations with the applicant's legal representatives, the Lübeck Public Prosecutor gave the applicant an assurance that the prosecution service would institute proceedings under Article 11 of the Convention on the Transfer of Sentenced Persons (European Treaty Series no. 112, “the Transfer Convention”) if the applicant confessed to the alleged crimes. Furthermore, they would refrain from requesting a sentence exceeding eight years' imprisonment. 8. On 25 March 2002 the applicant confessed in writing to having committed the crimes specified in the arrest warrant. 9. On 6 May 2002 the Lübeck Public Prosecutor issued an indictment against the applicant. 10. Prior to the oral hearing, the applicant's counsel informed the trial court of the agreement reached between the applicant's defence lawyers and the public prosecution service. 11. During the oral hearing before the Lübeck Regional Court (Landgericht), which took place on 26 August 2002, the applicant gave a full confession. The Public Prosecutor requested a sentence of eight years' imprisonment. According to the transcript of the hearing, the Public Prosecutor moreover declared as follows: “....the Public Prosecution Office does not see any reason not to proceed in accordance with Article 11 of the Council of Europe's Transfer Convention.” 12. On 26 August 2002 the Lübeck Regional Court, on the basis of the applicant's confession, convicted him of unlawful trafficking in and importing narcotic substances and sentenced him to eight years' imprisonment. The court accepted the applicant's confession as a mitigating factor. The applicant having waived his right to appeal, the judgment became final on the same day. 13. On 28 August 2002 the applicant applied to the Schleswig-Holstein Ministry of Justice to institute transfer proceedings under Article 11 of the Transfer Convention. In his pleadings, the applicant's counsel relied upon the agreement between the defence, the criminal chamber at the Lübeck Regional Court and the Public Prosecutor's Office at the Lübeck Regional Court. 14. On 9 September 2002 the Ministry of Justice acknowledged receipt of the applicant's request and informed him that the Head of the Chief Public Prosecutors (Leitender Oberstaatsanwalt) in Lübeck had been invited to submit comments on it. 15. On 20 February 2003 the Head of the Chief Public Prosecutors stated that he would only endorse a transfer under Article 10 of the Transfer Convention on condition that the Dutch authorities gave an assurance of continued enforcement and did not release him before two-thirds of the sentence had been served. 16. By a letter of 5 March 2003 the applicant reminded the Justice Ministry that, during the oral hearing held on 26 August 2002, the Public Prosecutor had given an assurance that he would support the applicant's request to be transferred under Article 11 of that Convention. 17. On 12 March 2003 the Justice Ministry sent the applicant's submissions to the Head of the Chief Public Prosecutors for comment. They pointed out that it was no longer standard practice in Germany to institute transfer proceedings under Article 11. 18. On 24 April 2003 the Head of the Chief Public Prosecutors submitted a report containing a statement given by the Public Prosecutor at the hearing. The latter stated that, when giving the assurance, he had not known the difference between Articles 10 and 11 of the Transfer Convention and had expected the applicant to be transferred to the Netherlands to serve the sentence imposed by the German courts. It had been important to him to express his view that the applicant should be allowed to serve his sentence in his home country. 19. Based on this statement, the Head of Public Prosecution considered that the applicant could not be under the impression that he had been promised a transfer under Article 11 with binding effect on the Ministry of Justice. Subsequently, the Head of the Chief Public Prosecutors refused to endorse a transfer under Article 11 and suggested a transfer under Article 10 of the Transfer Convention. 20. On 17 March 2003 the applicant asked the Schleswig-Holstein Court of Appeal (Oberlandesgericht) for a judicial determination under section 23 of the Introductory Act to the Courts Act (Einführungsgesetz zum Gerichtsverfassungsgesetz, EGGVG, see Relevant Domestic Law, below) with regard to the Public Prosecutor's decision to pursue the applicant's transfer under Article 10 and not, as he had previously been assured, under Article 11 of the Transfer Convention. He submitted that he had only confessed in the light of the Public Prosecutor's assurance that the prosecution service would support his transfer under Article 11, and that the Public Prosecutor's decision to pursue the transfer under Article 10 violated his right to a fair trial under the Convention. 21. On 20 May 2003 the Court of Appeal rejected the applicant's request as inadmissible. Referring to the Public Prosecutor's submissions, the Court of Appeal considered that the Public Prosecutor's comment on the applicant's transfer request did not constitute a judicial decision within the meaning of section 23 of the Courts Act, as it did not concern the domestic administration of criminal justice, but related to a diplomatic relationship with a foreign State. Furthermore, the Convention on the Transfer of Sentenced Persons did not confer any individual rights on the applicant. 22. On 26 May 2003 the applicant requested the Ministry of Justice to reconsider its decision, having regard to the principle of fair trial. 23. On 18 June 2003 the Ministry of Justice informed the applicant of its intention to pursue proceedings under Article 10 of the Transfer Convention, having regard to State practice in relation to the Netherlands. 24. On 1 October 2003 the applicant gave his consent to his transfer under Article 10 of the Transfer Convention. On 6 October 2003 the Dutch Justice Ministry gave its consent to the applicant's transfer under Article 10 of the Transfer Convention. 25. On 22 October 2003 the applicant was handed over to the Dutch authorities and subsequently served the remainder of his sentence in a Dutch prison. 26. On 18 January 2004 the applicant lodged a constitutional complaint against the Ministry's decision of 18 June 2003. 27. On 14 January 2005 the Federal Constitutional Court, sitting as a panel of three judges, declined to consider the applicant's constitutional complaint. According to the Federal Constitutional Court, the applicant had failed to exhaust domestic remedies. With regard to domestic remedies, the Federal Constitutional Court found as follows: “The applicant has no right to a judicial review of the exercise of discretion in so far as the decision is based on general, in particular foreign policy, considerations..., the evaluation of which belongs to the core area of Government. However, the judicial review of discretionary powers in respect of law enforcement remains unaffected thereby, in particular with regard to the statement made on the day of the trial by the Lübeck Public Prosecutor's Office... It cannot be denied that uncertainties may remain for the person seeking justice in this connection in view of the previously disputed contestability of decisions by the authorising authority, as well as in regard to the possible legal remedies. Sufficient account is taken of the possible uncertainties in regard to the legal remedy on account of the possibility of a binding referral under section 17a § 2 of the Courts Act. It is reasonable to expect the applicant to have recourse to a disputed legal remedy.” 28. According to the Federal Constitutional Court, it was for the lower courts to decide which court was competent in the applicant's case. These courts had further to consider whether the impugned act interfered with the applicant's right to a fair trial or with the principle of protection of legitimate confidence. Notwithstanding the possibility of lodging a fresh request, the fact that the relevant time-limits for lodging appeals might in the meantime have expired did not lead to the constitutional complaint being admissible. 29. This decision was served on the applicant's counsel on 10 February 2005. 30. On 14 February 2005 the applicant unsuccessfully lodged a fresh request with the Justice Ministry that execution of his sentence be taken over under Article 11 of the Transfer Convention. 31. On 20 March 2007 the applicant was released from prison, having served two thirds of his sentence. 32. Section 17a § 2 of the Courts Act (Gerichtsverfassungsgesetz) reads as follows: “If the invoked court is not competent to adjudicate the case, the court shall decide thus of its own motion after hearing the parties and shall, at the same time, refer the legal dispute to the competent court...The decision shall be binding ... on the court to which the legal dispute is referred.” Section 23 of the Introductory Act to the Courts Act, in so far as relevant, provides as follows: “(1) Upon request, the ordinary courts shall decide on the lawfulness of directives, orders or other measures taken by the judicial authorities to regulate individual issues in the sphere of the civil law ... and the criminal law. (2) By means of a request for judicial determination an order requiring a judicial or executive authority to take a decision it has omitted or refused to take may also be sought.” In accordance with section 26 of the same Act, the request has to be lodged within one month of communication of the impugned administrative act. If a party has been prevented from complying with this time-limit through no fault of their own, they can lodge a request to restore the previous time-limit. However, such a request is inadmissible if it has been lodged more than one year after expiry of the time-limit, with the exception of cases of force majeure (section 26(4)). 33. The German Act on International Mutual Assistance in Criminal Matters does not explicitly define the role of the enforcement authority in the transfer proceedings. The Act merely provides that the authorising authority, which is the Federal Ministry of Justice – which can delegate its competence to the Land Ministry – must send a transfer request to the administering State. If the decision is taken by a Land Ministry, that Ministry, after consulting the public prosecutor's office, exercises discretion with regard both to foreign policy considerations and law-enforcement issues. 34. The aim of the Convention on the Transfer of Sentenced Persons (“the Transfer Convention” – European Treaty Series no. 112) is to develop international cooperation in the field of criminal law and to further the ends of justice and the social rehabilitation of sentenced persons. According to the Preamble, foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentence within their own society. Article 9 (“Effect of transfer for administering State”) reads as follows: “1. The competent authorities of the administering State shall: (a) continue the enforcement of the sentence immediately, or through a court or administrative order, under the conditions set out in Article 10, or (b) convert the sentence, through a judicial or administrative procedure, into a decision of that State, thereby substituting for the sanction imposed in the sentencing State a sanction prescribed by the law of the administering State for the same offence, under the conditions set out in Article 11. 2. The administering State, if requested, shall inform the sentencing State before the transfer of the sentenced person as to which of these procedures it will follow. 3. The enforcement of the sentence shall be governed by the law of the administering State and that State alone shall be competent to take all appropriate decisions. ...” Article 10 (“Continued enforcement”) provides: “1. In the case of continued enforcement, the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing State. 2. 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 shall, 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.” Article 11 (“Conversion of sentence”) reads as follows: “1. In the case of conversion of sentence, the procedures provided for by the law of the administering State apply. When converting the sentence, the competent authority: (a) shall be bound by the findings as to the facts in so far as they appear explicitly or implicitly from the judgment imposed in the sentencing State; (b) may not convert a sanction involving deprivation of liberty to a pecuniary sanction; (c) shall deduct the full period of deprivation of liberty served by the sentenced person; and (d) shall not aggravate the penal position of the sentenced person, and shall not be bound by any minimum which the law of the administering State may provide for the offence or offences committed. 2. If the conversion procedure takes place after the transfer of the sentenced person, the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure.”