FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 48058/09
by František MÜLLER
against the Czech Republic
The European Court of Human Rights (Fifth Section), sitting on 6 September 2011 as a Chamber composed of:
Dean Spielmann, President,
Elisabet Fura,
Karel Jungwiert,
Boštjan M. Zupančič,
Mark Villiger,
Ganna Yudkivska,
Angelika Nußberger, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 11 August 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr František Müller, is a Czech national who was born in 1966 and is currently serving a prison sentence in Horní Slavkov (Czech Republic). He is represented before the Court by Mr D. Strupek, a lawyer practising in Prague.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 2 April 1998 the Munich I Regional Court found the applicant guilty of aiding and abetting murder. The court held that on 10 March 1995, a certain D.P. and the applicant had entered a jewellery shop and that D.P. had taken a shop assistant to another room and shot him dead. The applicant was given a mandatory sentence of life imprisonment. D.P. was tried in the Czech Republic and sentenced to thirteen and a half years’ imprisonment.
The applicant was initially serving his prison sentence in Straubing Prison in Germany. He could work, move freely in the building for most of the day, freely interact with any of the other 400 prisoners, make an appointment with a psychologist, psychiatrist or social worker at any time, follow vocational courses and study programmes, engage in outdoor exercise for up to three hours a day or more, a wide range of sports activities were available to him, and his cell was ventilated and dark at night. He was entitled to apply for conditional release after serving fifteen years, that is, on 3 May 2012.
On 4 December 1998 the Munich Aliens Office issued an administrative expulsion order against the applicant.
On 12 November 2007 the Ministry of Justice of Bavaria requested the Czech Republic to take over the execution of the applicant’s sentence. The applicant did not give his consent to his transfer. The Czech Ministry of Justice, however, agreed to the transfer.
On 18 August 2008 the Prague Regional Court (krajský soud) validated the German judgment regarding the applicant’s conviction and converted his sentence to fifteen years’ imprisonment. It held that, despite the applicant’s objection to the transfer, all the conditions of the Convention on the Transfer of Sentenced Persons, having regard to the Additional Protocol, had been met. It noted that at the time of the commission of the crime a sentence of more than fifteen years’ imprisonment could have been given under the Czech Criminal Code only, inter alia, on the condition that the possibility of the offender’s rehabilitation was particularly remote. Based on the available evidence, it held that this condition had not been met and thus a sentence of imprisonment of more than fifteen years would not be compatible with Czech law.
The Prague Regional Prosecutor (krajský státní zástupce) appealed against the decision, requesting the imposition of a sentence of twenty-five years’ imprisonment because of the exceptional degree of danger to society posed by the applicant’s crime.
On 10 October 2008 the Prague High Court (vrchní soud) quashed the Regional Court’s judgment and ruled that the applicant should continue to serve his sentence of life imprisonment without any conversion. It held that the Regional Court had not been entitled to consider whether all the conditions for a life sentence had been met, but only to determine whether under Czech law the sentence imposed by the foreign court was at all possible for the crime in question. As it found that the Czech Criminal Code generally provided for a sentence of life imprisonment for murder, it held that that sentence must continue to be served in the Czech Republic.
On 12 February 2009 the Constitutional Court (ústavní soud) dismissed a constitutional appeal by the applicant as manifestly ill-founded. It held that Czech courts could alter a foreign sentence only if the sentence was not envisaged at all under Czech law for the crime in question.
On 15 April 2009 the applicant was transferred to the Czech Republic and taken into detention pending a court ruling on the execution of his sentence.
On 19 June 2009 the Regional Court ruled that the applicant should serve his sentence in a secure prison (věznice s ostrahou). It held that under the Convention on the Transfer of Sentenced Persons, the penal position of sentenced persons could not be aggravated by their transfer and that this also applied to conditions of detention. Consequently, the applicant could not serve his sentence in a prison with heightened security (věznice se zvýšenou ostrahou) as would normally be the case for prisoners sentenced to life imprisonment.
The applicant appealed, arguing that his penal position would be aggravated because the conditions of detention in a Czech secure prison were much harsher than in Straubing Prison, where he had served his sentence before being transferred.
On 2 September 2009 the High Court upheld the decision. It held that any disadvantages of a Czech secure prison compared to Straubing prison were offset by the advantages of serving the sentence in the applicant’s home country, where his mother tongue was spoken and where he had better possibilities of visits.
Since then the applicant has served his sentence in Horní Slavkov Prison in a section for life-sentenced prisoners. In that prison he allegedly has not been offered any employment; he must spend twenty-three hours a day in his cell or one room on the same floor; he is allowed only one hour, or exceptionally two, of outdoor exercise daily in a very small area; he is able to interact only with two other life-sentenced prisoners; his access to a psychologist or psychiatrist is limited; he cannot follow any vocational or study courses; his cell is lit twenty-four hours a day and it is not possible to open a window in his cell; and there is no possibility of sports activities except for table tennis in summer.
The applicant lodged a constitutional appeal, disagreeing, inter alia, with the advantages of serving his sentence in the Czech Republic noted by the High Court. He argued that he had already become accustomed to a German environment, was fluent in German, was visited by people from the outside and could receive parcels without any problem. In comparison, in the Czech Republic he was in contact only with his mother, who, however, lived in Ostrava, which was more than 500 km away from his prison.
On 30 June 2010 the Constitutional Court dismissed his constitutional appeal as manifestly ill-founded.
B. Relevant domestic law
1. The Criminal Code (Act no. 140/1961) as in force in 1995
Under Article 29 § 2 of the Criminal Code as in force in 1995, an extraordinary sentence of between fifteen and twenty-five years could be imposed by a court only if the degree of danger to society posed by the offender’s crime was very high and the possibility of rehabilitating the offender was regarded as remote.
Under Article 29 § 3, a life sentence could be imposed on an offender who had committed murder where:
(a)the degree of danger posed by such a crime to society was extremely high because of the particularly contemptible manner in which the crime was committed, or a particularly contemptible motive on the part of the offender, or a particularly serious result of the crime for which it was difficult to compensate, and;
(b) the imposition of such a sentence was required for the effective protection of society, and;
(c) there was no hope that the offender could be rehabilitated by a prison sentence of between fifteen and twenty-five years’ duration.
2. The Criminal Code (Act no. 40/2009), in force as of 1 January 2010
Under Article 88 § 5 of the Criminal Code a life-sentenced prisoner is eligible for parole after serving a minimum of twenty years of his sentence.
C. Relevant international documents
1. The Council of Europe Convention on the Transfer of Sentenced Persons, 1983
Under Article 10 of this Convention the administering State is bound by the legal nature and duration of the sentence as determined by the sentencing State. 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 must, 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.
Under Article 11, in the case of conversion of a sentence, the competent authority must not aggravate the penal position of the sentenced person, and is not bound by any minimum which the law of the administering State may provide for the offence or offences committed.
2. Additional Protocol to the Convention on the Transfer of Sentenced Persons, 1997 (entered into force for the Czech Republic on 1 February 2003 and for Germany on 1 August 2007)
Under Article 3 § 1 of the Additional Protocol, upon being requested by the sentencing State, the administering State may agree to the transfer of a sentenced person without the consent of that person, where the sentence passed on the latter, or an administrative decision consequential to that sentence, includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing State once he or she is released from prison.
Articles 7 and 8 provide:
Article 7 – Temporal application
“This Protocol shall be applicable to the enforcement of sentences imposed either before or after its entry into force.
Article 8 – Denunciation
1. Any Contracting State may at any time denounce this Protocol by means of a notification addressed to the Secretary General of the Council of Europe.
...
3. This Protocol shall, however, continue to apply to the enforcement of sentences of persons who have been transferred in conformity with the provisions of both the Convention and this Protocol before the date on which such denunciation takes effect. ...”
COMPLAINT
The applicant complains under Article 7 of the Convention that the Czech courts failed to convert his sentence to that provided for under Czech law and that his penal position was aggravated by their decision.
THE LAW
The applicant complains that the Czech courts ordered him to serve a sentence that was not envisioned in the Czech law for the crime he had committed. He argued that this penalty was not foreseeable for him because at the time he committed his offence transfer from Germany had not been possible without his consent as the Additional Protocol to the Transfer Convention had been concluded only after his acts. At the same time he complained that the conditions of imprisonment of prisoners sentenced to life are harsher in the Czech Republic. He particularly referred to different rules on the possibility of release on parole. He relied on Article 7 of the Convention, the relevant part of which reads:
“Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
The Court must firstly determine whether Article 7 of the Convention applies to the decisions of the Czech courts.
It reiterates that the concept of a “penalty” in this provision is an autonomous Convention concept. The wording of Article 7 § 1, second sentence, indicates that the starting-point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a “criminal offence”. Other factors that may be taken into account as relevant in this connection are the nature and purpose of the measure in question; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity (see Welch v. the United Kingdom, 9 February 1995, § 27-28, Series A no. 307‑A).
In the present context, the Court observes that several complaints under Article 7 of the Convention of transfer of prisoners, where the defendant was the sentencing State, were declared inadmissible and it was decided that Article 7 did not apply to transfer decisions in the sentencing State (see, for example, Csoszánszki v. Sweden (dec.), no. 22318/02, 27 June 2006 and Szabó v. Sweden (dec.), no. 28578/03, 27 June 2006). In the former case the Court ruled that no issue under Article 7 arose even though at the time the applicant had committed the sentence the Additional Protocol to the Convention on the Transfer of Sentenced Persons had not yet been ratified by Sweden and the sentence which he was effectively about to serve in the administering State was longer than the one provided for by Swedish law. The Court held that the applicant’s transfer or, more specifically, its implications for his conditional release may not be considered as amounting to a “penalty” within the meaning of Article 7 of the Convention because questions of conditional release concern the execution of a sentence.
In the Court’s established case-law a distinction is drawn between a measure that constitutes in substance a “penalty” and a measure that concerns the “execution” or “enforcement” of a “penalty”; Article 7 applies only to the former (see Kafkaris v. Cyprus [GC], no. 21906/04, § 142 and Grava v. Italy, no. 43522/98, § 51, 10 July 2003).
In Kafkaris, cited above, the applicant committed murder for which the law at that time prescribed mandatory life imprisonment. At that time the law allowed for release after serving twenty years. However this provision had been repealed in the meantime and superseded by a provision which had the effect that the applicant would serve his sentence for the remainder of his life. The Grand Chamber held that a measure concerning the remission of a sentence or a change in a regime for early release did not form part of the “penalty” within the meaning of Article 7:
“151. However, as regards the fact that as a consequence of the change in the prison law (see paragraph 58 above), the applicant, as a life prisoner, no longer has a right to have his sentence remitted, the Court notes that this matter relates to the execution of the sentence as opposed to the “penalty” imposed on him, which remains that of life imprisonment. Although the changes in the prison legislation and in the conditions of release may have rendered the applicant’s imprisonment effectively harsher, these changes cannot be construed as imposing a heavier “penalty” than that imposed by the trial court ...”
Turning to the present case, the Court observes that the applicant was tried and convicted in Germany to life imprisonment. The Czech courts only validated his conviction by the German courts and the High Court decided that the sentence could be enforced in the Czech Republic. Therefore, the Court does not consider that the Czech courts decided on a “criminal offence” committed by the applicant or that their decisions could be considered as measures imposed following conviction for a “criminal offence”.
Their decisions merely applied the Additional Protocol to the Convention on the Transfer of Sentenced Persons. Here the Court observes that Articles 7 and 8 of the Additional Protocol, as well as several other provisions of the Transfer Convention, provide for the enforcement of sentences with clear reference to transfer decisions. The text of these treaties suggests that these decisions concern the enforcement of a penalty rather than any new penalty (see Csoszánszki v. Sweden, cited above).
The Court, therefore, considers that the decision to enforce the judgment in the Czech Republic concerns the place of the execution of the applicant’s sentence (see, mutatis mutandis, Saccoccia v. Austria (dec.), no. 69917/01, 5 July 2007, where the Court held that Article 7 did not apply to enforcement in Austria of a forfeiture order issued in the United States because it did not concern the penalty itself but only its execution). Consequently, the applicant’s arguments that the application of the Additional Protocol to the Convention on the Transfer of Sentenced Persons was retroactive are not relevant (see, mutatis mutandis, Csoszánszki, v. Sweden (dec.), cited above).
In reply to the applicant’s argument that in Germany he was eligible for conditional release after serving fifteen years and that in the Czech Republic he must serve a minimum of twenty years of his sentence the Court refers to the above cited Kafkaris judgment that a change in the conditions for release relates to the execution of sentence and Article 7 of the Convention is not applicable.
The applicant further referred to the case X. v. Austria (dec.), no. 7720/76, 8 May 1978, where the Commission suggested that Article 7 of the Convention would be applicable to subsequent modifications to a sentence by a court if heavier conditions were imposed. In that case the applicant was sentenced to three years’ imprisonment and to detention in a labour camp afterwards. Subsequently, the courts converted the applicant’s labour camp sentence into imprisonment in an institution for dangerous recidivists, because labour camps had been abolished in the meantime. The Commission referred to a previous case where it had held that it had not been substantiated that the character of the detention in an institution for recidivists was essentially different from the conditions in the former labour camps, and in particular that more restrictive conditions of confinement were imposed. That complaint was thus declared manifestly ill-founded because the character of the detention was not “essentially different”. Based on this case the applicant argued that Article 7 applied in the present case because the conditions of detention are heavier in the Czech Republic than in Germany.
The Court, however, observes that that case concerned two different types of penalty, namely prison sentence and labour camp and even then the Commission did not consider the character of the penalty as “essentially different”.
The Court notes that in the present case the issue lies solely in the alleged differences in the conditions of detention in a prison. The penalty itself remains the same – that is a deprivation of liberty in a prison for a set term. The Court, therefore, considers that these alleged differences fall within the sphere of execution of a penalty and thus no issue arises under Article 7 of the Convention.
In these circumstances, the Court cannot find that the transfer decisions by the Czech courts could be considered as amounting to a “penalty” within the meaning of Article 7 of the Convention. It follows that the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekDean Spielmann
RegistrarPresident
Full & Egal Universal Law Academy