AS TO THE ADMISSIBILITY OF
Application No. 23898/94
by Konstantinos CHAROUNTAKIS
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 12 April 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 April 1994 by
Konstantinos CHAROUNTAKIS against Germany and registered on 15 April
1994 under file No. 23898/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Greek citizen, born in 1960. When lodging the
present application he was detained in prison in Oldenburg, pending
extradition to Greece. The applicant is represented by
Mr. Jens Meggers, a lawyer practising in Osnabrück.
It follows from his statements and the documents submitted that,
before his arrest on 15 April 1991, the applicant was living with his
Dutch wife and their two children in the Netherlands. In February 1993
he was convicted in Germany of aiding and abetting in the illegal
importation of drugs and of drug trafficking committed in 1990. He was
sentenced to two years' imprisonment. The execution of the sentence
was stayed on probation. The judgment became final on 23 February
1993. Since 15 February 1993, the applicant was detained on the
authority of a provisional warrant of arrest for the purpose of his
extradition (vorläufiger Auslieferungshaftbefehl) issued on 5 February
1993 by the Oldenburg Court of Appeal (Oberlandesgericht).
On 22 March 1993 the Greek Republic requested the applicant's
extradition on the ground that he was suspected of having acquired 3
kg of cocaine together with an accomplice in Brazil in June 1990 with
the purpose of selling the drugs in Greece. He then had the cocaine
transported by messengers via Madrid to Athens. In addition, during
the preceding two years he had at least six times transported unknown
quantities of cocaine to Greece. He had thereby violated Articles 5
and 8 of the Greek Anti-Drug Act.
Article 5 of the Greek Anti-Drug Act provides for a prison
sentence of at least ten years and fines up to 100 million Drachmas for
- the import and export of drugs
- drug trafficking
- possession and transportation of drugs
Article 8 provides for life imprisonment in aggravated cases of
violations of Article 5, in particular professional drug trafficking.
On 26 March 1993 the Oldenburg Court of Appeal issued a definite
detention order and on 27 August 1993 it authorized the applicant's
extradition and ordered that his detention pending extradition should
continue.
Prior to that decision the Federal Court (Bundesgerichtshof) had
refused to deal with a request of the Court of Appeal to state an
opinion as to whether or not it considered the extradition admissible
in the light of the fact that the punishment provided for under Greek
law for the offence in question was far more severe than under German
law.
The applicant then lodged a constitutional complaint which was
rejected by a panel of three judges of the Federal Constitutional Court
(Bundesverfassungsgericht) on 4 March 1994 in accordance with Sections
93 (b) read in conjunction with 93 (a) of the Act on the Federal
Constitutional Court (BVerfG).
It is stated in the decision that the Federal Ministry for
Justice had submitted observations on behalf of the Federal Government
as well as the Ministry of Justice of the Lower Saxony District. Those
ministries had stated the opinion that the applicant's extradition was
unobjectionable.
In so far as the applicant complained of the Appellate Court's
order of 27 August 1993, the panel of judges of the Federal
Constitutional Court considered that an extradition could not be
admitted if the request for the extradition was based on measures which
were incompatible with Germany's constitutional order, in particular
the rule of law. Such incompatibility was not given by the mere fact
that a criminal punishment which the person concerned had to expect in
the requesting State was extremely severe (zu hart) compared to the
standards of German law. Extradition should not take place only where
the expected punishment was of intolerable severity and under all
circumstances unreasonable or as such cruel, inhuman or degrading.
These principles had not been violated by the Appellate Court's
order authorizing the applicant's extradition to Greece despite the
fact that he risked a lifelong prison sentence.
Such a prison sentence was not unreasonable in view of the
serious charges laid against the applicant. Consumers of cocaine
expose themselves to severe psychic and physical deteriorations
including the danger of death in consequence of circulatory collapse
or paralysis of the respiratory organs. He who imports such dangerous
drugs for profit purposes and thereby exposes a great number of persons
to such dangers acts in a particularly reprehensible manner and such
acts normally justify severe punishment.
Also under German law drug trafficking was considered to be a
serious offence for which the law provides a minimum penalty of two
years' imprisonment and a maximum of fifteen years.
The Greek legislator by providing for maximum punishment in the
form of life imprisonment for aggravated cases of drug trafficking was
obviously motivated by the idea of providing for an exemplary
punishment with a deterrent effect. The legal orders of numerous
states provided for such exemplary punishments; in some states even the
death penalty still existed for aggravated cases of drug trafficking.
Furthermore, the panel of three judges noted that even a sentence
of life imprisonment would not deprive the applicant of a concrete and
real possibility of regaining his freedom. Articles 105, 106 and 110
of the Greek Penal Code provided that life prisoners could be released
after having served twenty years if their conduct was unobjectionable
and there was a positive prognosis as to their future behaviour.
Whether these requirements were given was examined in judicial
proceedings on the basis of specific legislative regulations
(gesetzlich geregeltes, gerechtliches Verfahren) and there was nothing
to show that the domestic court would have limited discretionary power
in this matter as the applicant had alleged.
In view of this concrete possibility of an earlier release
(vorzeitige Entlassung) the expectation of a lifelong prison sentence
was not disproportionate to the severe offence in question so as to
amount to cruel, inhuman or degrading treatment.
Also the right to respect for family life did not protect a
foreigner from being brought before the courts of his home country if
he had violated penal norms.
The latest order continuing the applicant's detention pending
extradition was given by the Oldenburg Court of Appeal on 24 March
1994.
According to information given by applicant's counsel on
23 February 1996 the applicant was extradited on 1 June 1994 from
Germany to Greece.
COMPLAINTS
The applicant submits that his extradition to Greece with the
consequence of being exposed to the danger of being convicted to life
imprisonment will certainly disrupt the ties between himself and his
wife and children who live in the Netherlands. The consequence will
practically be that his family life will be destroyed. His family
cannot be expected to follow him to Greece as his wife and children are
Dutch citizens who would not have any means of existence if they moved
to Greece. The applicant further points out that he himself lived for
many years in the Netherlands where he disposes of a residence permit
and never conflicted with Netherlands law. The Netherlands would deny
his extradition for humanitarian reasons. The applicant therefore
considers that the authorization given by a German court for his
extradition to Greece violates Articles 3, 5 para. 1 and Article 8
para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The applicant's request for an interim measure in accordance with
Rule 36 of the Commission's Rules of Procedure was rejected by the
Commission's President on 15 April 1994.
THE LAW
The applicant has complained that his extradition to Greece would
be in breach of the Convention as he is risking an irrevocable life
prison sentence and as a consequence the relationship with his wife and
children who are living in the Netherlands will practically be
destroyed.
1. He has mainly invoked Article 3 (Art. 3) of the Convention which
so far as relevant forbids inhuman or degrading treatment.
It is true that a person against whom an extradition procedure
is pending can claim to be a victim of an alleged violation of Article
3 (Art. 3) of the Convention where substantial grounds have been shown
for believing that the person concerned, if extradited, faces a real
risk of being subjected to torture or to inhuman or degrading treatment
or punishment in the requesting country (Eur. Court H.R., Soering
judgment of 7 July 1989, Series A no. 161, p. 35 para 91).
However, life imprisonment for serious crimes is not as such
contrary to Article 3 (Art. 3). The Commission has held in a previous
case that no right can be derived from that provision for an individual
having served part of a lawful life sentence to have that sentence
reconsidered by a national authority with a view to its remission or
termination (cf. see No. 15776/89, Dec. 5.12.89, D.R. 64, p. 264 and
No. 7994/77, Dec. 6.5.78, D.R. 14, p. 238; see also No. 11653/85, Dec.
3.3.86, D.R. 46, p. 231). Having regard to the findings of the Federal
Constitutional Court in the present matter the Commission notes that
in any event the applicant, if convicted and sentenced to life
imprisonment, will have the possibility under Greek law of applying for
conditional release after having served twenty years of imprisonment.
The Commission concludes that the circumstances of the present
application do not disclose any appearance of a violation of Article
3 (Art. 3) of the Convention.
2. The applicant has next invoked Articles 5 and 8 (Art. 5, 8) of
the Convention.
Article 5 (Art. 5) protects against arbitrary deprivation of
liberty. However, the applicant's detention in Germany is justified
under Article 5 para. 1 (f) (Art. 5-1-f) as extradition proceedings
were taken against him and there is nothing to show that they were not
actively pursued with due diligence throughout the relevant period.
As regards the right to protection of the applicant's family life
(Article 8 (Art. 8) of the Convention) it appears from the domestic
decisions not contested by the applicant that his extradition, which
can be considered as a measure interfering with his family life, is
based on German law and serves the purpose of prevention of disorder
or crime.
It remains to be examined whether the measure is necessary in a
democratic society. In this respect the Contracting States have a
margin of appreciation. However, "necessity" implies that the
interference must correspond to a pressing social need and, in
particular, that it must be proportionate to the legitimate aim pursued
(cf. Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A no.
138, p. 15, para. 26).
The Commission notes that the applicant was wanted by the Greek
judicial authorities as being suspected as a drug dealer who had large
quantities of cocaine transported to Greece by messengers. This is,
as the German Constitutional Court also noted, a very serious crime and
the applicant, by getting involved in the drug trafficking if such is
shown to be the case, deliberately took the risk of severe punishment
if he was caught. The Commission shares the Federal Constitutional
Court's opinion that the right to respect for family life does not in
such circumstances protect a foreigner from being brought before the
courts of his home country if he is alleged to have violated penal
norms.
Respect for the applicant's family life consequently does not
outweigh the interests of the public, be it Greek or German, in having
a suspected offender brought to trial and having the sentence provided
for under domestic law imposed. It follows that the interference
complained of is justified under Article 8 para. 2 (Art. 8-2) of the
Convention.
There is consequently again no appearance of the provisions
invoked by the applicant and the application therefore has to be
rejected in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention as being manifestly ill-founded.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
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