THE FACTS
I. The facts presented by the parties and apparently not in dispute
between them may be summarised as follows:
1. The applicant is a German citizen, born in 1956 in East Berlin and
at present detained in the women's prison in West Berlin. In the
proceedings before the Commission, she is represented by Rechtsanwalt
G.J. Roos, a lawyer practising in West Berlin and acting under a
power-of-attorney signed by the applicant and her mother.
2. The applicant's parents were divorced in 1956 and in 1957 the mother
went to West Berlin with the child. In 1959 the father took the child
with him to East Berlin against the mother's will and the mother's
subsequent attempts to have the child returned to West Berlin failed.
In October 1972 the present husband of the mother, who ha married
again, succeeded in bringing the applicant back to West Berlin where
she was taken into the household of her mother and stepfather. In
November 1972 the District Court (Amtsgericht) of Berlin-Neukölln
transferred the parental power to her mother.
3. On 10 May 1973 the applicant confessed to the police in West Berlin
that she had killed her father at a rubbish dump near Königs
Wusterhausen in the German Democratic Republic (GDR) in July 1972. On
the same day the District Court (Amtsgericht) of Berlin-Tiergarten, in
investigation proceedings pending in West Berlin, issued a warrant for
her arrest and she was remanded in custody.
4. In the GDR, too, investigation proceedings were opened against the
applicant. On 7 May 1973 the Attorney General of GDR, referring to a
warrant issued by the District Court (Kreisgericht) of Königs
Wusterhausen on 4 May, requested the Attorney General at the Court of
Appeal (Kammergericht) of West Berlin to inform him when the applicant
could be made available for prosecution in the GDR.
5. On 11 May 1973 the applicant and her mother were heard on the above
request. Both objected to a transfer (Zulieferung) of the applicant to
the GDR. They were afraid that the applicant might be sentenced to an
additional penalty for having left the GDR illegally and further stated
that, apart from her late father's 86 year old mother, the applicant
had no family contact in the GDR.
6. By letter of 17 May 1973 the Attorney General at the Court of Appeal
asked the Attorney General of the GDR for certain assurances regarding
the proposed proceedings against the applicant in the GDR. By letter
of 4 June the Attorney General of the GDR gave six assurances, the
contents of which he defined more precisely in a further letter of 15
June 1973. In particular, he stated that the applicant would in no case
have to serve a sentence exceeding then years' imprisonment, i.e. the
maximum sentence which she could receive if convicted under the law of
the Federal Republic of Germany.
7. By letter of 20 June 1973 counsel for the applicant requested the
Attorney General at the Court of Appeal to refuse the request for her
transfer to the GDR. He submitted that the request could not be based
on the relevant Act of Inner German Mutual Assistance in Criminal
Matters (Gesetz über die innerdeutsche Rechts- und Amtshilfe in
Strafsachen, herinafter referred to as Mutual Assistance Act) of 1953.
Moreover, the applicant's transfer to the GDR would be contrary to
Article 16 (2), first sentence, of the Basic Law which prohibits the
extradition of nationals.
8. On 21 June 1973 the applicant and her mother were again heard on the
above request for transfer. Having been informed of the assurances
given by the Attorney General of the GDR in his letters of 4 and 15
June, they both maintained their objection. The applicant stated
generally that she was afraid of the conditions prevailing in the GDR.
Her mother said that she would not expose herself to the risks involved
in any visits to her daughter in a GDR prison.
9. On 26 June 1973 the Attorney General at the Court of Appeal,
referring to the assurances given by the Attorney General of the GDR,
granted the request for transfer under Articles 2 and 3 of the Mutual
Assistance Act.
10. On 27 June 1973 the applicant, by an application for judicial
decision under Article 5 of the Mutual Assistance Act, challenged the
order granting her transfer. Her counsel further submitted on 18 July
1973 that, according to a medical opinion, there was a danger of the
applicant committing suicide in the case of her transfer to the GDR.
11. On 10 August 1973 the Court of Appeal dismissed the application.
The Court held inter alia:
- that the applicant's transfer would be used by the GDR only in
accordance with the principles of the rule of law;
- that these principles were observed in ordinary criminal proceedings
in the GDR; and
- that it was to be assumed that, as a result of her transfer, the
applicant would suffer a substantial disadvantage incompatible with the
rule of law. The Court observed in this connection that alleged danger
of the applicant committing suicide did not constitute such a
disadvantage.
12. By letter of 11 August 1973 counsel for the applicant, stating
that he intended to seize the European Commission of Human Rights of
her case, asked the Attorney General at the Court of Appeal to suspend,
pending the Commission's decision, the execution of the order
authorising the applicant's transfer to the GDR. The Attorney General
replied on 13 August 1973 that the execution of the transfer order had
been suspended.
II. Proceedings before the Commission and the domestic authorities
since the introduction of the present application.
1. The present application arrived in the Commission's Secretariat on
16 August 1973 and was registered on the same day. On 17 August it was
given precedence and unofficially brought to the attention of the
Government of the Federal Republic of Germany.
2. On 30 August 1973 a preliminary examination of the admissibility of
the application was carried out by a single member of the Commission,
appointed as Rapporteur under Rule 45 of the Commission's Rules of
Procedure. On his instructions the Government were invited to submit
the texts of the letters of 4 and 15 June 1973 from the Attorney
General of the GDR to the Attorney General at the Court of Appeal (see
I, 6 above).
Copies of the said letters were filed by the Government on 19
September, and the applicant's comments on this information were
received on 5 October 1973.
3. On 21 September the Tiergarten District Court annulled its arrest
warrant of 10 May 1973 (see I. 3 above). On the same day the arrest
warrant issued by the Königs Wusterhausen District Court (see I, 4
above) was served on the applicant under Article 4 (3) of the Mutual
Assistance Act.
4. On 1 October 1973 the Commission examined the admissibility of the
application. It decided that notice of the application should be given
to the respondent Government and that the Government should be invited
to submit their observations on the admissibility of the application,
insofar as it raised questions under Article 5 (1) (f) of the
Convention.
The Government's observations arrived on 14 December 1973, the
applicant's reply was received on 30 January 1974.
5. On 17 December 1973 the applicant, referring to the proceedings
before the Commission, requested the Court of Appeal to set aside, or
to suspend the execution of, the arrest warrant of the Königs
Wusterhause District Court. This was refused by the Court of Appeal on
21 December.
6. On 18 January 1974 the applicant lodged a constitutional appeal
(Verfassungsbeschwerde) with the Federal Constitutional Court
(Bundesverfassungsgericht). She submitted that her transfer to the GDR,
and her detention in West Berlin for that purpose, were
unconstitutional because, at any rate since the conclusion of the Basic
Treaty of 21 December 1972 between the Federal Republic of Germany and
the German Democratic Republic, the Mutual Assistance Act no longer
provided a constitutional basis for these measures.
7. On 27 March 1974 the Federal Constitutional Court rejected the
constitutional appeal as being in part inadmissible and in part
manifestly ill-founded.
The Court stated that it was not competent to examine measures taken
by Berlin authorities or courts; the constitutional appeal was
therefore inadmissible, insofar as it was directed against the
applicant's proposed transfer by, and her detention for that purpose
in, West Berlin.
On the other hand, the appeal was admissible, but manifestly
ill-founded, insofar as it indirectly attacked a Federal law, namely
the Mutual Assistance Act: The Federal Constitutional Court confirmed
the constitutional validity of this Act and at the same time fixed
inter alia the following criteria for its application:
"The constitutional conditions for the transfer of an accused to the
authorities of the German Democratic Republic ... require not only that
the person concerned should appear before an impartial court and
receive a fair hearing in fair proceedings in which he can put forward
a proper defence but also that the object and purpose of the
proceedings should take account of requirements of justice and
humanity. There must be no danger of the infliction of an obviously
unjust sentence or other measure or of the person concerned having to
serve his sentence in a manner that does not take account of his
fundamental rights. Finally there must be guarantees that while serving
his sentence or otherwise detained the convicted person is allowed to
have reasonable contact with his relatives and friends in the Federal
Republic of Germany without he or his visitors suffering any detriment
on that account. His right to return to the Federal Republic of Germany
on acquittal or the completion of his sentence must not be restricted.
In view of the fundamental rights of the person concerned particularly
those set out in Articles 1 and 2 of the Basic Law and the
constitutional principle of proportionality which are deemed to be
incorporated in the 'ordinary laws' the Mutual Assistance Act must be
interpreted in such a way that transfer for a criminal trial in the
German Democratic Republic is out of the question if there are adequate
medical grounds for the assumption that such a measure might owing to
the mental state of the person concerned lead to serious damage to
health or the danger of suicide.
Only when it is beyond all reasonable doubt that all these requirements
are fulfilled is a transfer compatible with the public policy (ordre
public) of the Federal Republic of Germany.
Doubts that legal or administrative assistance is being used in
accordance with the rule of law cannot be ruled out in advance in cases
where the circumstances are such that it is impossible to exclude with
certainty that political objects although not mentioned are a
determining factor for the prosecution in the German Democratic
Republic and the person concerned might suffer disadvantage because he
holds different political views or merely because it is considered he
might be an opponent of the dominant regime in the German Democratic
Republic. This may not infrequently be the position in the case of the
so-called deserters of the Republic."
The Federal Constitutional Court stated in conclusion that it was
prevented by the Berlin Reservation of the Three Powers to examine
whether the above constitutional criteria had been respected by the
Court of Appeal of West Berlin. It remained the task of the competent
authorities of Berlin to ensure the application of these criteria in
the proceedings which were open to them.
8. On 4 April 1974 counsel for the applicant, referring to the above
judgment of the Federal Constitutional Court, requested the Attorney
General at the Court of Appeal:
- to ensure that the arrest warrant of the District Court of Königs
Wusterhausen of 4 May 1973 was immediately quashed and that an order
was made for the applicant's release;
- to request the Court of Appeal, under Article 9 (1) of the Mutual
Assistance Act, to set aside its decision of 10 August 1973 authorising
the applicant's transfer to the German Democratic Republic.
9. The applicant's request that the arrest warrant of the District
Court of Königs Wusterhausen should be set aside was refused by the
Court of Appeal on 5 April 1974.
On the same day counsel for the applicant challenged the judges of the
Court of Appeal who had participated in this decision.
10. The Commission, on 5 April 1974, considered the application in the
light of the parties' written observations and the Rapporteur's second
report of 7 March 1974. It noted that the applicant had filed a
constitutional appeal and that the Federal Constitutional Court had
given its judgment on 27 March 1974, but that the full text of this
decision had not yet been submitted by the parties in the present
proceedings.
The Commission decided:
- to invite the parties to submit the full text of the Federal
Constitutional Court's above judgment and also a copy of the file note
setting out the grounds of the decision of the Court of Appeal of 10
August 1973;
- to invite the parties to keep it informed as to the outcome of any
new proceedings before the Berlin authorities; and
- to inform the parties of its view that the alleged danger of the
applicant committing suicide in the case of her transfer to the GDR
might raise an issue under Article 3 of the Convention.
11. On 18 April 1974 the Attorney General at the Court of Appeal,
requested the Court to reconsider its decision of 10 August 1973 by
which it had authorised the applicant's transfer to the GDR.
12. On 22 April 1974 the Court of Appeal rejected the applicant's
challenge (see paragraph 9 above) and confirmed its decision of 5 April
by which it had refused the applicant's request that the arrest warrant
of the District Court of Königs Wusterhausen should be set aside.
13. On 6 May 1974 the Court of Appeal decided to seek a certificate by
the Commandant of the British Sector of Berlin as to whether it was
authorised to take the judgment of the Federal Constitutional Court
into consideration in reaching a decision on the applicant's petition
under Article 9 (1) of the Mutual Assistance Act (see paragraph 8
above).
14. The information requested by the Commission (see paragraph 10
above) was submitted by the parties under cover of their letters of 4
and 6 May (applicant) and 17 May 1974 (Government).
15. On 27 May 1974 the Commission considered the application in the
light of the above information and of the Rapporteur's third report of
24 May.
SUBMISSIONS OF THE PARTIES
I. The applicant alleges violations of Articles 3 and 5 to 11 of the
Convention and Article 3 of Protocol No. 4. She submits in particular:
1. that her proposed transfer to the GDR, and her continued detention
in West Berlin for that purpose, violate Article 5 of the Convention
which prohibits inhuman treatment. According to a medical certificate,
there is a danger of her committing suicide in the case of her transfer
to the GDR. She has in fact already twice attempted to commit suicide
and has started a hunger strike on 6 May 1974;
2. that the constitutional criteria laid down by the Federal
Constitutional Court for the application of the Mutual Assistance Act
have not been respected in her case by the Court of Appeal of Berlin.
Her detention for the purpose of her transfer to the GDR is therefore
unconstitutional and consequently not "lawful" within the meaning of
Article 5 (1) (f) of the Convention;
3. that the rights set forth in Articles 6, 7, 8, 9, 10 and 11 of the
Convention are not fully respected by the GDR. Her transfer to the GDR
would consequently violate the said provisions;
4. that she is a citizen of the Federal Republic of Germany. Her
transfer to the GDR would therefore, as "expulsion" of a national, be
contrary to Article 3 (1) of Protocol No. 4.
II. The respondent Government have in their observations of 12
December 1973, i.e. before the Federal Constitutional Court's judgment
of 27 March 1974, submitted that Article 5 (1) of the Convention is not
violated in the present case. The Mutual Assistance Act is valid law.
The applicant is therefore detained on a statutory basis and there is
consequently no violation of the general rule of Article 5 (1) of the
Convention, which authorises deprivation of liberty "in accordance with
a procedure prescribed by law". Her detention is furthermore justified
under Article 5 (1) (f) or, possibly, under Article 5 (1) (c).
The Government have made no submissions on the conclusions to be drawn
in the present case from the judgment of the Federal Constitutional
Court.
THE LAW
I. As to the exhaustion of domestic remedies
1. The Commission notes that, following the Federal Constitutional
Court's judgment of 27 March, the applicant has on 4 April 1974 filed
with the Court of Appeal a petition to reopen the proceedings under
Article 9 of the Mutual Assistance Act. It considers, however, that the
extraordinary remedy provided for by Article 9 does not in the
circumstances of the present case constitute an effective and
sufficient remedy which the applicant is required to exhaust, in
accordance with Article 26 (Art. 26) of the Convention, before
addressing herself to the Commission. It refers in this connection to
its case-law concerning applications for retrial under the German Code
of Criminal Procedure - see application No. 654/59, Yearbook, Vol. 4,
pp. 277, 283; application No. 918/60 Collection of Decisions, Vol. 7,
pp. 108, 110; see also application No. 4311/69 - X. v. Denmark -
Collection of Decisions, Vol. 37, pp. 82, 96. The Commission concludes
that the applicant has complied with the condition of exhaustion of
domestic remedies.
II. As to the alleged violation of Article 5 (1) (f) (Art. 5-1-f) of
the Convention
2. The applicant, referring to the decision of the Federal
Constitutional Court of 27 March 1974, complains that her present
detention in West Berlin violates Article 5 (1) (f) (Art. 5-1-f) of the
Convention. The Government have in their observations of 12 December
1973, i.e. before the above decision of the Federal Constitutional
Court, submitted that Article 5 (1) (Art. 5-1) of the Convention is not
violated in the applicant's case.
3. The provisions of Article 5 (1) (Art. 5-1) of the Convention, which
may be relevant to the present case, read as follows:
"Everyone has the right to liberty and security of person. No one shall
be deprived of his liberty save in the following cases and in
accordance with a Protocol prescribed by law:
..... (c) the lawful arrest or detention of a person effected for the
purpose of bringing him before the competent legal authority on
reasonable suspicion of having committed an offence or when it is
reasonably considered necessary to prevent his committing an offence
or fleeing after having done so;
..... (f) the lawful arrest or detention of a person against whom
action is being taken with a view to deportation or extradition.".
4. It is not disputed between the parties that the applicant was, from
10 May until 21 September 1973, detained in pursuance of a warrant of
arrest issued by the District Court of Berlin-Tiergaten for the purpose
of bringing her before the competent legal authority of West Berlin on
reasonable suspicion of having killed her father. The Commission finds
that this detention was justified under Article 5 (1) (c) (Art. 5-1-c)
of the Convention.
5. The question remains whether the applicant's subsequent detention,
since 21 September 1973, is also compatible with the provisions of
Article 5 (Art. 5). This detention, effected for the purpose of her
transfer to the German Democratic Republic (Zulieferungshaft) is,
according to the Government, based on Article 4 (3) of the Mutual
Assistance Act and on a warrant of arrest issued in the German
Democratic Republic by the District Court of Königs Wusterhausen.
The Government have in their observations of 12 December 1973 submitted
that the Mutual Assistance Act is a valid law; that the applicant is
therefore detained on a statutory basis; and that there is consequently
no violation of the general rule of Article 5 (1) (Art. 5-1) of the
Convention, which authorises deprivation of liberty "in accordance with
a procedure prescribed by law". The detention is furthermore justified
under Article 5 (1) (f) (Art. 5-1-f) or, possibly under Article 5 (1)
(c) (Art. 5-1-c).
The applicant, following the decision of the Federal Constitutional
Court, no longer contests the constitutional validity of the Mutual
Assistance Act. She submits, however, that the criteria laid down by
the Federal Constitutional Court for the application of the Act have
not been respected in her case by the Court of Appeal of Berlin; that
her detention for the purpose of her transfer to the German Democratic
Republic is therefore unconstitutional; and that it is consequently not
"lawful" within the meaning of Article 5 (1) (f) (Art. 5-1-f) of the
Convention.
6. The Commission has had regard both to the constitutional criteria
for the application of the Mutual Assistance Act, as laid down by the
Federal Constitutional Court, and to the grounds of the earlier ruling
by the Court of Appeal, authorising the applicant's transfer to the
German Democratic Republic under the said Act, as stated in the file
note of the Court of Appeal of 10 August 1973. The criteria laid down
by the Federal Constitutional Court restrict the scope of the Mutual
Assistance Act. The Commission is consequently faced with the question
whether the applicant's detention for the purpose of her transfer is,
in the light of these criteria, to be considered as lawful in the sense
of Article 5 (1) (f) (Art. 5-1-f) of the Convention.
7. The Commission notes that the judgment of the Federal Constitutional
Court is not directly binding on Berlin courts, including the Court of
Appeal which, on applicant's new request, has now to decide if the
proceedings under Article 9 of the Mutual Assistance Act should be
reopened. It further notes that the Federal Government have at this
stage of the proceedings made no comments on the legal situation as it
presents itself in the light of the Federal Constitutional Court's
recent judgment and the position adopted by the Allied authorities.
8. In these circumstances, the Commission considers that the question
whether the applicant's detention since 21 September 1973 is "lawful"
under Article 5 (1) (f) (Art. 5-1-f)- or, alternatively, under Article
5 (1) (c) (Art. 5-1-c)- raises complex issues of law and fact which
cannot be determined at the stage of admissibility but require an
examination of the merits of the complaint. It follows that the
applicant's complaint concerning her present detention cannot be
rejected as being manifestly ill-founded within the meaning of Article
27, paragraph (2) (Art. 27-2), of the Convention.
III. As to the alleged violation of Article 3 (Art. 3) of the
Convention
9. The applicant also complains that her proposed transfer to the
German Democratic Republic, and her continued detention in West Berlin
for that purpose, violate Article 3 (Art. 3) of the Convention which
prohibits inhuman treatment. It is stated on her behalf that, according
to a medical certificate, there is a danger of her committing suicide
in view of her possible transfer to the German Democratic Republic;
that she has, in fact, already twice attempted to commit suicide; and
that she started a hunger strike on 6 May 1974.
10. The Commission notes that the Federal Constitutional Court held in
its judgment of 27 March 1974 inter alia:
"In view of the fundamental right of the person concerned, particularly
those set out under Articles 1 and 2 of the Basic Law and the
constitutional principle of proportionality which are deemed to be
incorporated in the 'ordinary laws', the Mutual Assistance Act must be
interpreted in such a way that transfer for a criminal trial in the
German Democratic Republic is out of the question if there are adequate
medical grounds for the assumption that such a measure might owing to
the mental state of the person concerned lead to serious damage to
health or the danger of suicide.".
11. The Commission finds that the present complaint, too, raises
complex questions of law and fact which cannot be determined at the
stage of admissibility but require an examination of the merits. It
follows that this complaint can equally not be rejected as being
manifestly ill-founded.
IV. Consideration of other Articles
1. Article 3 (1) of Protocol No. 4 (P4-3-1)
12. With regard to her proposed transfer to the German Democratic
Republic, the applicant also alleges a violation of Article 3 (1) of
Protocol No. 4 (P4-3-1) of the Convention, which provides that no one
shall be expelled from the territory of the State of which he is a
national.
13. The Commission considers, however, that the proposed transfer of
the applicant to the German Democratic Republic would not constitute
an expulsion in the sense of this provision. In international law,
there is an essential difference between "expulsion" and "extradition".
Expulsion is the execution of an order to leave the country, while
extradition means the transfer of a person from one jurisdiction to
another for the purpose of his standing trial or for the execution of
a sentence imposed upon him. The latter is the situation in the present
case.
The above interpretation is confirmed by the Preparatory Work: the
Explanatory Report on Protocol No. 4 (P4), prepared by the Committee
of Experts on Human Rights, states expressly that it was understood
that extradition was outside the scope of Article 3 (1) (P4-3-1)- see
Doc. H. /71) 11 of the Council of Europe, p. 47.
14. The Commission further observes that the right not to be extradited
by the State of which one is a national is also not guaranteed by any
other provision of the Convention or its Protocols.
15. It follows that the applicant's complaint, insofar as she claims
such a right, is incompatible ratione materiae with the provisions of
the Convention within the meaning of Article 27, paragraph (2)
(Art. 27-2).
2. Articles 6 (1), 7, 8, 9, 10 and 11 (Art. 6-1, 7, 8, 9, 10, 11)
of the Convention
16. The applicant states that the rights laid down in Articles 6 (1),
7, 8, 9, 10 and 11 (Art. 6-1, 7, 8, 9, 10, 11) of the Convention are
not fully respected by the German Democratic Republic. She submits that
her transfer to the German Democratic Republic would consequently
violate the said provisions.
17. The Commission notes that, according to its case-law as confirmed
in application No. 4313/69 (Collection of Decisions, Vol. 21, pp.
96-97), the extradition of a person in certain exceptional
circumstances be contrary to Article 3 (Art. 3) of the Convention and
that, moreover, it has already found in the present case that the
applicant's complaints under this Article, relating to her proposed
transfer by the Federal Republic of Germany to the German Democratic
Republic, and her detention for that purpose in the Federal Republic
of Germany, are not manifestly ill-founded.
For these reasons the Commission
(a) reserves for its examination of the merits the applicant's
complaints under Articles 6 (1), 7, 8, 9, 10 and 11
(Art. 6-1, 7, 8, 9, 10, 11) of the Convention, insofar as they are
connected with her said detention and transfer and might raise
questions of inhuman treatment under Article 3 (Art. 3) of the
Convention;
(b) considers that the applicant's complaints, if examined under
Article 3 of Protocol No. 4 (P4-3), are incompatible ratione materiae
with the provisions of the Convention;
(c) considers, however, that the same complaints, if examined under
Articles 3 and 5 (1) (f), or 5 (1) (c) (Art. 3, 5-1-f, 5-1-c), of the
Convention, are not manifestly ill-founded;
and therefore DECLARES THIS APPLICATION ADMISSIBLE.