The European Commission of Human Rights sitting in private on
10 October 1986, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 November 1984 by
H.R. against the Federal Republic of Germany and registered on
24 April 1985 under file No. 11506/85.
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 facts of the case, as they have been submitted by the applicant,
may be summarised as follows:
The applicant was born in 1919 in Vienna and is a stateless person.
She is a house-wife and was resident in New York, USA. When lodging
her application she was detained at Willich, Federal Republic of
Germany. She is represented by Rechtsanwalt Jürgen Rieger, a lawyer
practising in Hamburg.
On 6 August 1973, following a warrant of arrest of the Düsseldorf
Regional Court (Landgericht), the applicant was extradited from the
United States of America to the Federal Republic of Germany in
connection with charges of murder in the Concentration Camp of
Majdanek, Poland. The applicant was taken into detention on remand.
On 16 November 1975 the same court started the trial. On
13 June 1979, it dismissed the applicant's request for release from
detention on remand. On 2 May 1980, the Düsseldorf Court of Appeal
(Oberlandesgericht) dismissed the applicant's appeal (Beschwerde)
against this decision. On 11 March 1981 the Federal Constitutional
Court (Bundesverfassungsgericht) rejected the applicant's
constitutional complaint as offering no prospect of success. The
Court considered the question whether or not German penal law extended
to the applicant's case, a point raised in the constitutional
complaint with reference to an expert opinion. The Court found that
S. 7 para. 2 (1) of the Penal Code had to be interpreted in connection
with the nationality laws in force at the time of the crimes at issue.
S. 7 para. 2 (1) provides for the applicability of German penal law to
crimes committed abroad, if they are punished as crimes in the
respective foreign country and, cumulatively, if the offender was
German at the time of the crime. The Court concluded that the
previous court decisions could not be objected to from a
constitutional point of view and, in particular, had not been
arbitrary.
On 30 June 1981, the Düsseldorf Regional Court sentenced the applicant
to double life imprisonment for having committed joint murder in two
instances and, thereby, caused the death of at least one hundred
persons. The Court found that, in May 1943, the applicant, in her
position as a warder in the Majdanek Concentration Camp, had twice
been involved in the gassing of jewish prisoners, in the first case
more than eighty female jewish prisoners and in the second case at
least forty-five children and probably several babies.
The Court held that German penal law was applicable in the applicant's
case according to S. 5 (12) and S. 7 para. 2 (1) of the Penal Code.
S. 5 (12) provides that the German penal law applies to crimes
committed abroad, if they have been committed by a German official or
person with special official duties. The Court referred to the facts
that the applicant had obtained the German nationality after the
annexation of Austria in 1938 and that she had acted within the
framework of her official duties as a warder in the Majdanek
Concentration Camp.
On 30 May 1984, the Federal Court of Justice (Bundesgerichtshof)
dismissed the applicant's appeal (Revision) in which the applicant had
mainly submitted that the Regional Court had only taken insufficient
evidence and that it had wrongly held German law to be applicable.
COMPLAINTS
The applicant complains under Article 5 paras. 1 (a) and 3
(Art. 5-1-a, art. 5-3) of the Convention that she is unlawfully
detained after conviction by an incompetent court. She submits that
the German courts disregarded the fact that she was Austrian and that
they, therefore, unlawfully applied German penal law. In respect of
the condition of exhaustion of domestic remedies within the meaning of
Article 26 (Art. 26), the applicant claims that it was unnecessary to
lodge a new constitutional complaint in view of the Federal
Constitutional Court's previous decision of 11 March 1981.
THE LAW
1. The applicant complains under Article 5 para. 1 (a)
(Art. 5-1-a) of the Convention that she is detained after conviction
by an incompetent court. She submits that the criminal proceedings
against her and her conviction by the Düsseldorf Regional Court on
charges of murder in the Majdanek Concentration Camp were without
legal basis in German law. She alleges that the respective German
courts wrongly assumed the applicability of German penal law under the
general provisions of the German Penal Code.
The Commission notes at the outset that the applicant did not complain
of the decision of the Federal Court of Justice dated 30 May 1984 to
the Federal Constitutional Court. However the applicant had already
raised the question of the applicability of German penal law at the
stage of her detention on remand and her objections had been finally
rejected by the Federal Constitutional Court on 11 March 1981. The
applicant claims that in these circumstances it was unnecessary to
lodge a new constitutional complaint. The Commission has considered
under Article 26 (Art. 26) of the Convention whether, in order to
exhaust domestic remedies, the applicant should have lodged a second
constitutional complaint or whether she should have brought the
application within six months from the Federal Constitutional Court's
decision of 11 March 1981. However, the Commission does not find it
necessary to determine these questions, as the complaint under
Article 5 (Art. 5) of the Convention is in any case manifestly
ill-founded for the following reasons.
Article 5 para. 1 (a) (Art. 5-1-a) provides inter alia:
"No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a
competent court; ... "
The terms "law" and "lawful" in this provision refer to the applicable
domestic law, and it follows that disregard of the domestic law may
entail a breach of the Convention. However, the scope of review by
the Convention organs is limited and it is in the first place for the
national authorities, notably the courts, to interpret and apply
domestic law (see Eur. Court H.R., Winterwerp judgment of
24 October 1979, Series A No. 33 paras. 39, 45, 46;
Eur. Commission H.R., No. 9997/82, Dec. 7.12.82, D.R. 31 p. 245).
In the present case, the Commission notes that altogether four
different courts, including the Federal Constitutional Court, held,
after careful examination, that the relevant provisions of German
penal law were applicable in the applicant's case in particular under
S. 7 para. 2 (1) of the Penal Code. The Commission does not find it
unreasonable or arbitrary that the respective courts applied S. 7
para. 2 (1) of the Penal Code with reference to the German nationality
laws in force at the time of the crimes at issue and that they held
that the applicant had become a German national after the annexation
of Austria in 1938.
The Commission concludes that the applicant was deprived of her
liberty in accordance with the procedure prescribed by German law and
that she is lawfully detained after conviction by a competent court.
It follows that the applicant's complaint under Article 5 para. 1 (a)
(Art. 5-1-a) of the Convention is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also alleges a violation of Article 5 para. 3
(Art. 5-3) of the Convention in respect of her above complaint.
However, this provision only applies to persons arrested or detained
in accordance with Article 5 para. 1 (c) (Art. 5-1-c), i.e. detained
on remand, and not to persons detained after conviction by a competent
court within the meaning of Article 5 para. 1 (a) (Art. 5-1-a). It
follows that this aspect of the application is incompatible ratione
materiae with the Convention 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)