CASE OF SMITH v. GERMANY
Preliminary objection joined to merits and 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 Groningen. 6. On 27 July 2001 the Ahrensburg District Court (Amtsgericht) issued a warrant for the applicant's arrest. 7. On 30 January 2002 the applicant was arrested in Germany and remanded in custody at Oldenburg Prison. 8. On 22 May 2002 the Lübeck Public Prosecutor issued an indictment against the applicant on several counts of trafficking and importing narcotic substances (cannabis and marihuana). 9. On 20 June 2002 the Lübeck Regional Court (Landgericht) opened the applicant's trial. 10. On 22 July 2002 the Schleswig-Holstein Court of Appeal quashed the arrest warrant for failure to comply with the obligation to expedite criminal proceedings where an applicant is in detention pending trial. Following his release from detention, the applicant returned to the Netherlands. 11. 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 returned to Germany for his trial and confessed to the alleged crimes. 12. During the oral hearing before the Lübeck Regional Court, which took place on 16 September 2002, the applicant, who had voluntarily returned from the Netherlands, gave a full confession. The Public Prosecutor gave the following statement, as recorded in the transcript of the hearing: “In this case the current view is that there are no objections to the transfer of the defendant to the Netherlands under the Transfer Convention of 21 March 1983 or against the application of Article 11 of the Transfer Convention.” 13. Following the hearing, the Lübeck Regional Court, on the basis of the applicant's confession, convicted him on twenty-six counts of unlawful importing and unlawful trafficking of narcotic substances, and sentenced him to three and a half years' imprisonment. 14. The court accepted as mitigating factors the applicant's confession and the fact that he had voluntarily returned from the Netherlands in order to stand trial. It considered that the oral hearing could probably not have taken place without his cooperation. The applicant having waived his right to appeal, the judgment became final on 16 September 2002. 15. Following the hearing, the applicant returned to the Netherlands. 16. On 17 September 2002 the applicant applied to the Schleswig-Holstein Ministry of Justice for the institution of 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 of the Lübeck Regional Court, and the Public Prosecutor's Office at the Lübeck Regional Court. 17. On 7 October 2002 the Ministry of Justice forwarded the application to the Head of the Chief Public Prosecutors (Leitender Oberstaatsanwalt) in Lübeck with a request for him to submit a report. 18. On 22 November 2002 the Head of the Chief Public Prosecutors stated that, as a general rule, execution of sentence in the home country was not an option in such serious cases of drug trafficking. However, the special circumstances of this particular case justified lodging an application for execution assistance with the Dutch Justice Ministry. 19. On 19 December 2002 the Schleswig Holstein Justice Ministry wrote to the Dutch Justice Ministry enquiring whether it would be possible for it to continue the execution of the German sentence directly under Article 8 § 1 (a) of the Convention between the Member States of the European Communities on the Enforcement of Foreign Criminal Sentences of 13 November 1991 (“the EC Convention on Enforcement” – see International Treaties below). The German Ministry expressed the opinion that the Transfer Convention was not applicable, as the applicant was not in German custody. 20. On 17 March 2003 the Dutch Justice Ministry declared that in principle there was a willingness to allow the sentence to be executed in the Netherlands. However, in the Netherlands continued enforcement was allowed only in exceptional circumstances, which did not apply in the present case. The Dutch Ministry therefore requested its German counterpart to approve the conversion of the prison term imposed on the applicant, under Article 8 § 1 (b) of the EC Convention on Enforcement. 21. On 24 April 2003 the German Ministry requested the Head of the Chief Public Prosecutors to state his position. By a letter dated 1 July 2003 the Head of the Chief Public Prosecutors stated that he was opposed to a formal application for execution assistance because the Netherlands would make the execution dependent on a conversion of the sentence. 22. On 21 July 2003 the Ministry of Justice informed the applicant that it would refrain from lodging a formal application with the Netherlands. 23. In September 2003 the applicant was summoned to serve his sentence. His requests for the suspension of the execution of his sentence until a final decision on his transfer request was given were unsuccessful. 24. On 18 January 2004 the applicant lodged a constitutional complaint against the Ministry's decision not to institute transfer proceedings under Article 11 of the Transfer Convention. 25. On 10 February 2004 an arrest warrant was issued against the applicant as he had failed to start serving his sentence. 26. On 14 January 2005 the Federal Constitutional Court, sitting as a panel of three judges, declined to consider a constitutional complaint lodged by the applicant. 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 with 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.” 27. 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. 28. This decision was served on the applicant's counsel on 10 February 2005. 29. On 14 February 2005 the applicant lodged a fresh request with the Justice Ministry that execution of his sentence be taken over under Article 11 of the Transfer Convention. 30. A warrant is still out against the applicant for having failed to start serving his sentence. 31. 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 this 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). 32. 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, that 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. 33. 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 insofar 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.” Article 8 Determination of the custodial penalty “1. Where the transfer or enforcement of a custodial penalty is accepted, the competent authorities of the administering State shall: (a) enforce the penalty imposed in the sentencing State immediately or through a court or administrative order ... or (b) through a judicial or administrative procedure convert the sentence into a decision of the administering State, thereby substituting the penalty imposed in the sentencing State by a penalty laid down by the law of the administering State for the same offence...”