Lexploria - Legal research enhanced by smart algorithms
Lexploria beta Legal research enhanced by smart algorithms
Menu
Browsing history:

P. ; R.H. ; L.L. v. AUSTRIA

Doc ref: 15776/89 • ECHR ID: 001-1153

Document date: December 5, 1989

  • Inbound citations: 4
  • Cited paragraphs: 1
  • Outbound citations: 7

P. ; R.H. ; L.L. v. AUSTRIA

Doc ref: 15776/89 • ECHR ID: 001-1153

Document date: December 5, 1989

Cited paragraphs only



                      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)

© European Union, https://eur-lex.europa.eu, 1998 - 2025

LEXI

Lexploria AI Legal Assistant

Active Products: EUCJ + ECHR Data Package + Citation Analytics • Documents in DB: 401132 • Paragraphs parsed: 45279850 • Citations processed 3468846