M.S. v. GERMANY
Inadmissible
Matti Pellonpää
The applicant, born in 1971, is a citizen of former Yugoslavia residing in Duisburg (Germany). He is the general manager and a shareholder of a building company. Before the Court he is represented by Mr K. Brinkmann, a lawyer practising in Ratingen (Germany). In 1987 the applicant arrived in Germany. In 1994 and 1995 he travelled for short periods to the United States. In April 1998 he married L.M., a German citizen. He is the father of two children, born in 1997 and 1998. On 26 August 1998 the applicant was arrested and subsequently taken into detention with a view to extradition (Auslieferungshaft). The applicant’s arrest was based on an international arrest warrant of 1 September 1995 issued by a court in the United States, the Tarrant County District Court (Texas). The applicant was suspected of having raped a woman in December 1994 in Texas. On 17 July 1998 the United States Embassy in Germany submitted to the German judicial authorities a request for the applicant’s extradition to the United States. On 22 September 1998 the Düsseldorf Court of Appeal (Oberlandesgericht) ordered the applicant’s continued detention with a view to extradition. Subsequently, the court ordered the applicant’s extradition to the United States and found that there were no obstacles to it. The prosecution of the applicant had not yet become time-barred and concerned an extraditable offence. Furthermore, the applicant was not a German citizen. The applicant had denied having committed the offence he was charged with. However, whether or not the accusation was well-founded was not an issue to be addressed in the extradition proceedings, and there was no indication that the request for extradition had been made arbitrarily. Regarding the necessity of the applicant’s detention with a view to extradition, the court noted that the risk of the applicant’s absconding existed. In case of a conviction he risked a severe sentence. Furthermore, when he had been arrested in the United States in the context of the criminal proceedings against him in March 1995, he had been released on bail and had absconded. On 19 October 1998 the Court of Appeal rejected the applicant’s request for having his extradition declared unlawful and rejected the request for release from detention with a view to extradition. The Court of Appeal found that since its decision of 22 September 1998 the applicant’s situation had not changed. Neither the fact that the applicant had been recognised as refugee by the German authorities nor the fact that he was married to a German citizen made him a German citizen within the meaning of the Basic Law (Grundgesetz). Therefore he could not rely on the prohibition to extradite German citizens provided for in Article 16 § 2 of the Basic Law . On 4 November 1998 the applicant applied to the Federal Constitutional Court (Bundesverfassungsgericht). He submitted that the prohibition to extradite German citizens should also apply to him because, although not being a German citizen, he had close personal and family links to Germany On 12 November 1998 the Federal Constitutional Court declined to accept the appeal for adjudication on the ground that it did not have a sufficient prospect of success.