AS TO THE ADMISSIBILITY OF
Application No. 15776/89
by P. and R.H.
and L.L.
against Austria
The European Commission of Human Rights sitting in private
on 5 December 1989, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H. C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 November
1989 by P. and R.H. and L.L. against Austria and registered on
17 November 1989 under file No. 15776/89;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, who are represented by Otto Triffterer,
professor of criminal law in Salzburg, are citizens of the United
States of America, born in 1954, 1951 and 1931 respectively. They
are at present detained in the prison of Wels pending their
extradition to the United States.
The facts submitted may be summarised as follows.
The applicants' extradition was requested by the United States
on 8 June 1989, on the basis of an indictment preferred against them
on 20 November 1987 before the United States District Court, Southern
District of Indiana, Indianapolis Division, and warrants of arrest
issued against them by the same Court on 23 November 1987 and
21 April 1989.
In the indictment the applicants were charged with various
serious drug offences including:
as regards all three applicants:
- conspiracy with a view to large scale distribution of
marijuana in the United States, and to import large quantities
of marijuana from Colombia, South America and elsewhere
to the United States; possession with intent to distribute
large quantities of marijuana; travelling between the
United States and abroad with the criminal intention to
acquire marijuana, distribute it and invest the money
proceeds. Two counts (Nos. 32 and 33) concerned travelling
for criminal purposes to Austria, i.e. organising from
Austria the transport of some 140,000 lbs. of marijuana
to the United States, and causing the transfer of criminal
proceeds (some $135,000) from the United States to Austria.
These charges were based on Title 21, Sections 841 (a)(1),
846, 952 and 963 and Title 18, Sections 1952 subsection 2
and 1623 of the United States Code;
as regards the first applicant:
- engaging in a continuing criminal enterprise in violation
of Title 21, Section 848, United States Code, by
committing a continuing series of felony violations of
the Controlled Substances Act, in the position of
manager, organiser or supervisor of more than five persons
and making a substantial profit (importation of marijuana
from Colombia, South America and elsewhere into the
United States; unloading of marijuana from the boats used
for importation; sale of marijuana in Indiana and other
parts of the United States; collection, transportation,
investment and other dispositions of the money proceeds)
(Count 11).
As regards the last-mentioned offence, it is provided in
Title 21, Section 848, subsection (c) that as regards any sentence
imposed under this Section (which according to subsection (a) shall
be imprisonment not less than 10 years up to life imprisonment),
imposition or execution of such sentence shall not be suspended and
probation shall not be granted.
It appears that in the present case the prosecution had
requested a life sentence for the first applicant under this head, and
a total of some 50 years' imprisonment for the other offences at issue
for each of the applicants.
On 28 September 1989 the Linz Court of Appeal (Oberlandes-
gericht) found that the extradition requested by the United States was
admissible in respect of all offences for which it had been requested,
except one (count 34 concerning an alleged perjury offence by the first
applicant in connection with statements which he had made in defence
in a criminal case; the Court observed that such statements were not
punishable in Austria and therefore could not provide a basis for
extradition).
As regards the drug offences, the Court rejected the
applicants' submission that they were all linked together and, because
some of them (counts 32 and 33) had been committed on Austrian soil,
subject to exclusive Austrian jurisdiction. It was possible from a
procedural point of view to deal with these offences separately, and
this was also required by Article 36 para. 2 of the International
Agreement on Narcotizing Drugs (Nairobi Convention of 1961). The
examination of the question of the admissibility of extradition under
Section 16 of the Austrian Extradition Act (Auslieferungs- und
Rechtshilfegesetz) thus was only justified with regard to the two
offences allegedly committed on Austrian soil.
Under this Section an extradition was inadmissible in respect
of offences which were subject to Austrian jurisdiction (para. 1)
unless special reasons concerning the establishment of truth, the
length of the sentence, or the enforcement of the sentence spoke in
favour of conducting the proceedings in the requesting State (para. 2).
In the latter case the extradition was, however, inadmissible if it
was to be feared that, taking all circumstances into account, a
conviction in the requesting State would lead to a considerably less
favourable treatment of the person concerned than under Austrian law
(para. 3).
The Court noted that in the present case Austrian jurisdiction
in respect of the two offences in question could only result from
Section 64 para. 1 subpara. 4 of the Penal Code (Strafgesetzbuch),
i.e. if the offences violated Austrian interests and if an extradition
was inadmissible. There was no violation of Austrian interests if, as
in the present case, the offences charged concerned the acquisition
and distribution of drugs by foreigners in foreign States, without
participation of Austrians. Furthermore, the extradition was not
inadmissible under Section 16 paras. 2 or 3 of the Austrian
Extradition Act. As regards paragraph 2, a prosecution in the United
States appeared appropriate (zweckmässig) in view of the fact that it was
easier for the American courts to establish the truth on the basis of
the evidence situated in the United States. As regards paragraph 3,
the Court considered that the applicants would not, on the whole, be
treated considerably less favourably than in Austria if they were
prosecuted in the United States. This was so because they had to expect
severe sentences (several prison sentences of 15 years to be imposed
cumulatively) already for the purely American offences. The "Austrian
offences" therefore would not weigh heavily beside these penalties.
Moreover, there was no generally recognised principle according to
which a more severe penalty than the one applicable in the requested
State (10-20 years in Austria) could not be imposed by the requesting
State, or according to which the former State could demand that a
more severe penalty should not be imposed.
As regards the "American offences", the extradition was
admissible under the Extradition Treaty between Austria and the United
States of 1930 (in the version of 1934) read in conjunction with the
International Agreement on Narcotizing Drugs. Although the
Extradition Treaty did not expressly include drug offences, it had
been clarified by the Agreement that the latter offences were also
extraditable. The facts charged were punishable in both States, and
it was irrelevant in this respect that Austrian and American law did
not define the offences in question in exactly the same terms. In
this context the Court also confirmed that the conditions of a
criminal association (Bande) and commission of the offences with
commercial intention (Gewerbsmässigkeit), as stipulated in the
Austrian Narcotic Drugs Act (Suchtgiftgesetz), were met.
The Court then dealt with the question whether there was
reasonable suspicion and whether the applicants had adduced evidence
shaking that suspicion. The Court observed that in this respect its
jurisdiction was limited and that the principle "in dubio pro reo" did
not apply. It was sufficient that the evidence submitted had been
examined provisionally by United States courts and had led to the
issuing of judicial warrants of arrest, and that the applicants had
not adduced evidence easily verifiable in Austria which showed that
the charges against them were unfounded.
The Court finally saw no reason to apply the hardship clause
(Section 22 of the Austrian Extradition Act), to doubt reciprocity
(Section 3 of the Act) or to assume that the offences were subject
to statutory prescription either in Austria or in the United States
(Section 18 of the Act).
The Court's decision was transmitted to the Federal Minister
of Justice who was competent to take the final decision on
extradition. It appears that before making his decision, the Minister
submitted the case to the Attorney General's Office (Generalprokuratur)
with a view to examining the applicants' objections against the Court
of Appeal's decision. They had, in particular, claimed that the Court's
decision was unlawful and violated the Extradition Act and the
Extradition Treaty. However, on 23 November 1989 the applicants were
informed by the Minister that the Attorney General had seen no reason
to file a plea of nullity for safeguarding the law (Nichtigkeits-
beschwerde zur Wahrung des Gesetzes).
According to the applicants' letter of 1 December 1989 the
Minister has already given his consent to the extradition which is to
be executed as soon as the Minister's decision has been served upon
them.
COMPLAINTS
1. All applicants complain that there has been a violation of the
presumption of innocence (Article 6 para. 2 of the Convention) in that
the Court of Appeal allegedly based its finding that the extradition in
respect of the Austrian offences was admissible on the assumption that
they would be convicted on the American charges. In doing so, it had
failed to consider the possibility that only the Austrian charges
could be established, in which case the applicants would suffer
considerable disadvantages making their extradition inadmissible under
the Austrian Extradition Act.
2. The first applicant, in addition, complains that his
extradition, if carried out, would amount to inhuman and degrading
treatment contrary to Article 3 of the Convention, in that he must
expect a life sentence under Title 21, Section 848 of the U.S. Code
which, according to sub-section (c), cannot be suspended. A life
sentence without any hope of early release, except in case of
physical or mental unfitness to serve a penalty, is in his submission
incompatible with Article 3 of the Convention. He invokes decisions
to this effect by the German Federal Constitutional Court and the
Italian Constitutional Court. He also claims that his situation
is similar to that in the Soering case (Eur. Court H.R., judgment
of 7 July 1989, Series A no. 161).
PROCEEDINGS
The applicants' request for an interim measure under Rule 36
of the Commission's Rules of Procedure was refused by the President
on 17 November 1989.
The applicants renewed their above request and further
requested that their case be given precedence under Rule 27. On
5 December 1989, the Commission granted the latter request.
THE LAW
1. All three applicants complain that the decision granting the
request for their extradition violated the presumption of innocence
under Article 6 para. 2 (Art. 6-2) of the Convention. They claim that
the Court of Appeal assumed that they would, in any event, be
convicted of the "American charges" and therefore the "Austrian
charges" would not weigh heavily beside these charges.
Although extradition proceedings do not come within the
scope of Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention
(cf. No. 7729/76, Agee v. United Kingdom, Dec. 17.12.76, D.R. 7 p.
164; No. 10479/83, Kirkwood v. United Kingdom, Dec. 12.3.84, D.R. 37
p. 158), the Commission has regarded the applicants as "charged with a
criminal offence" within the meaning of Article 6 para. 2 (Art. 6-2)
of the Convention.
As the Commission has consistently held, the "right to be
presumed innocent until proved guilty according to law" is not only a
procedural guarantee in criminal proceedings, but requires all State
organs to refrain from statements on the guilt of the accused before
that guilt has been established by the competent court. By contrast,
the State organs are not prevented by Article 6 para. 2 (Art. 6-2) of
the Convention from making statements on the existence of a criminal
suspicion (cf. No. 7986/77, Krause v. Switzerland, Dec. 3.10.78,
D.R. 13 p. 73; No. 9295/81, X v. Austria, Dec. 6.10.82, D.R. 30 p.
227; No. 10847/84, R.F. and S.F. v. Austria, Dec. 7.10.85, D.R. 44 p.
238).
In the present case the Linz Court of Appeal was required
under Section 16 of the Austrian Extradition Act to examine whether,
in respect of the two offences allegedly committed on Austrian soil,
the applicants would on the whole be treated considerably less
favourably in the United States than in Austria. In striking the
balance, the Court observed that the "Austrian charges" were not the
only ones raised against the applicants, and that they had to expect
severe penalties regarding the "American charges" to which the lesser
"Austrian charges" were linked.
It is true that the Court of Appeal did not expressly consider
that the applicants might be convicted only of the "Austrian charges".
However, it follows from the context of its judgment that both as
regards the "Austrian" and the "American charges" it did not judge the
prospects of the criminal proceedings in the United States. It only
had to examine whether the conditions of extradition were met, and in
this context, whether the suspicion against the applicants underlying
the request for their extradition was contradicted by evidence easily
verifiable in Austria. The Court thus only found the existence of a
state of suspicion.
For this reason, there is no appearance of a violation of the
principle of presumption of innocence, as guaranteed by Article 6
para. 2 (Art. 6-2) of the Convention. The applicants' complaint in
this respect is therefore manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The first applicant further complains that, if extradited to
the United States, he would risk a life sentence, which could not be
suspended. He invokes Article 3 (Art. 3) of the Convention, which provides:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
However, it does not appear that this complaint was, at least
in substance, raised before the Court of Appeal. The first applicant
has not filed his appeal, and the judgment does not deal with this
issue. As the Convention forms part of Austrian constitutional law,
the first applicant could have relied on Article 3 (Art. 3) already in the
judicial proceedings, but he appears to have done so only in his
subsequent representations to the Federal Minister of Justice which,
as he himself admits, did not constitute a remedy within the meaning
of Article 26 (Art. 26) of the Convention. The question therefore arises
whether the first applicant has exhausted domestic remedies.
However, in any case his complaint under Article 3 (Art. 3) must be
rejected for the following reasons:
Under the Commission's case-law a person's deportation or
extradition may give rise to an issue under Article 3 (Art. 3) of the
Convention only where there are serious reasons to believe that the
individual will be subjected, in the receiving State, to treatment
contrary to that Article. This case-law has recently been confirmed
by the Court in the Soering case (Eur. Court H.R., judgment of 7 July
1989, Series A no. 161, para. 91).
The first applicant argues that Article 3 (Art. 3) would be
violated by his extradition because he would in all likelihood get a
life sentence which under the law of the United States could not be
suspended. However, it is not established that the first applicant,
if extradited, would actually risk imprisonment for life without any
hope of release. Even if convicted, he might get a lesser sentence,
and, even if he should receive a life sentence, he might be released
before having completed his sentence. The possibility under the law
of the United States, referred to by the applicant, of release of
persons found to be physically or mentally unable to serve a penalty
shows concern to prevent treatment incompatible with Article 3
(Art. 3) of the Convention. The Commission further observes that
release before the completion of the sentence by way of an act of
grace is not excluded in the present case.
The Commission further recalls its decision on Application
No. 7994/77 (Kotälla v. the Netherlands, Dec. 6.5.78, D.R. 14 p. 238)
which concerned a death penalty commuted into a life sentence which
subsequently had been enforced for thirty years. In that case the
Commission found that Article 3 (Art. 3) of the Convention cannot be read as
requiring that an individual serving a lawful sentence of life
imprisonment must have that sentence reconsidered by a national
authority, judicial or administrative, with a view to its remission
or termination. The Commission is not required to pronounce itself on
the question whether the same reasoning would apply with regard to a
"normal" life sentence in one of the Convention States (cf. in this
respect the judgments of the German Federal Constitutional Court of
21 June 1977, 1 BvL 14/76, BVerfGE 45, 187, and of the Italian
Constitutional Court of 7/22 November 1974, Raccolta ufficiale delle
sentenze e ordinanze della Corte Costituzionale, vol. 42 (1974) p. 353,
to which the first applicant has referred). The Commission considers
that Article 3 (Art. 3) cannot be interpreted in the sense that it would
require a procedure for the reconsideration of a life sentence with a
view to its remission or termination in any country to which
extradition from a Convention State is envisaged.
The Commission concludes that first applicant's complaint
under Article 3 (Art. 3) is manifestly ill-founded, within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy