Information Note on the Court’s case-law No. 144
August-September 2011
Müller v. the Czech Republic (dec.) - 48058/09
Decision 6.9.2011 [Section V]
Article 7
Article 7-1
Heavier penalty
International transfer of prisoner liable to delay his eligibility for conditional release: inadmissible
Facts – The applicant, a Czech national, was found guilty by a German court of aiding and abetting murder and given a mandatory life sentence. Under German law, he would have become eligible for conditional release after serving fifteen years, but he was subsequently transferred, without his consent, to serve the remainder of his sentence in the Czech Republic, where he was eligible for parole only after twenty years and where, he alleged, prison conditions were harsher. In his application to the European Court, the applicant complained, inter alia, that the Additional Protocol to the Convention on the Transfer of Sentenced Persons, which allowed prisoners to be transferred without their consent, had not come into force until after the commission of his offence and that the Czech courts’ decision to validate his conviction and enforce his sentence in the Czech Republic had thus retrospectively aggravated his position.
Law – Article 7 § 1: A distinction had to be drawn between a measure that constituted in substance a “penalty” and a measure that concerned the “execution” or “enforcement” of a “penalty”; Article 7 applied only to the former*. The applicant had been tried and convicted in Germany and sentenced to life imprisonment. The Czech courts had merely validated that conviction and ruled that his sentence could be enforced in the Czech Republic. The text of the relevant provisions of the Convention on the Transfer of Sentenced Persons and its Additional Protocol suggested that transfer decisions concerned the enforcement of a penalty – in particular, the place of execution of the sentence – rather than any new penalty. It was immaterial that the applicant might have had to wait longer to become eligible for conditional release in the Czech Republic than he would have done in Germany as the question of conditions for release related to the execution of the sentence as opposed to the “penalty” imposed upon him**. Likewise, where the penalty – deprivation of liberty in a prison for a set term – remained the same, any alleged differences in the conditions of detention also fell within the sphere of execution of a penalty. Article 7 of the Convention was therefore not applicable.
Conclusion: inadmissible (incompatible ratione materiae).
* See Kafkaris v. Cyprus [GC], no. 21906/04, 12 February 2008, Information Note no. 105.
** See Kafkaris v. Cyprus, op. cit., and, with regard to decisions by a sentencing State to transfer a prisoner abroad, Szabó v. Sweden (dec.), no. 28578/03, 27 June 2006, Information Note no. 88, and Csoszánszki v. Sweden (dec.), no. 22318/02, 27 June 2006.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy