Lexploria

The European Commission of Human Rights sitting in private on

13 October 1986, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Art. 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 August 1985 by D.G.

against the Federal Republic of Germany and registered on 10 October

1985 under file No. 11797/85;

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 applicant, a former lawyer and notary (Rechtsanwalt und Notar), is

a German citizen, born in 1923 and living in Bad Neuenahr-Ahrweiler.

It follows from his statements and the documents submitted by him that

in April 1980 the applicant and the woman living with him (his

companion) took up residence in Kyrenia, Cyprus and subsequently

obtained a residence permit until 25 October 1980.

On 5 May 1980 the District Court (Amtsgericht) in Wiesbaden issued a

warrant of arrest against the applicant who was suspected of having

committed fraud by selling real estate investment certificates to some

three hundred persons and using the receipts for other purposes. On

12 May 1980 another warrant of arrest was issued against the

applicant's companion who was likewise suspected of fraud.

In July 1980 the German prosecuting authority, having been informed

that the applicant and his companion were living in Kyrenia, contacted

the local Turkish-Cypriot authorities. As no extradition treaty

existed the possibility of an expulsion was discussed. On

31 July 1980 the applicant and his companion were arrested by the

Turkish-Cypriot police and taken to Mersia, Turkey, where they were

arrested by the Turkish police. On 21 August 1980 the Embassy of the

German Federal Republic requested the Turkish Foreign Ministry to

extradite the applicant and his companion.

On 16 September 1980 the Embassy informed the Turkish authorities that

the warrant of arrest had been extended on 10 September 1980,

following written confessions obtained from the applicant. The

extradition request was amended accordingly. On 13 and

14 October 1980 the Turkish courts ordered the release of the

applicant and his companion. They were, however, kept in police

custody and on 15 October 1980 handed over to German policemen at

Ankara Airport. The German Embassy had shortly before been informed

by a telephone call that the extradition request had been granted and

that the corresponding written decision would be communicated

subsequently. This was done on 7 November 1980.

On 1 July 1983 the applicant was convicted by the Wiesbaden Regional

Court (Landgericht) of fraud (Betrug) and sentenced to four years'

imprisonment.

In so far as the applicant had argued that the criminal proceedings

against him were barred because the German authorities had obtained

his expulsion to Turkey and his subsequent extradition by Turkey in an

unlawful manner, the Court stated that international treaties on

extradition only created rights and obligations between the

Contracting States. Therefore a criminal court had no competence to

examine in the course of a trial against an extradited defendant

whether or not the extradition was in conformity with the extradition

treaty. Furthermore the Court stated that the principle of speciality

(Article 14 of the European Convention on Extradition) had not been

violated as the extradition request had been amended on

16 September 1980 and the extradition had in effect been granted with

regard to the charges on which the applicant had eventually been

convicted.

On 27 April 1984 the Federal Court (Bundesgerichtshof) rejected the

applicant's appeal (Revision). It only quashed the sentence in so far

as the trial court had not decided to what extent the applicant's

detention abroad had to be credited towards sentence.

The proceedings against the applicant's companion were discontinued.

The applicant lodged a constitutional appeal against the decisions

given against him in the criminal proceedings. This appeal was

rejected by a group of three judges of the Federal Constitutional

Court (Bundesverfassungsgericht) on 28 February 1985 as offering no

prospects of success. It is stated in the decision that the trial

court did not violate any constitutional rights in deciding that the

criminal proceedings were not barred by a possible violation of an

extradition treaty.

It is further stated that the warrants of arrest issued against the

applicant on 5 May 1980 and 10 September 1980 had not been arbitrary

and consequently it did not violate any constitutional rights that

subsequently an international search was requested by the German

authorities. It likewise did not violate constitutional rights if the

applicant's expulsion from Cyprus had been provoked by a request of

the German authorities, as such request could have been justified, as

well as the subsequent request for the applicant's extradition, in

view of the warrant of arrest of 5 May 1980.

Finally it is stated that the Federal Republic of Germany was not

responsible for the applicant's detention in Turkey. Therefore it was

of no relevance that the German authorities did not submit to the

Turkish authorities a declaration signed by the applicant in

August 1980 stating that he was prepared to return to the Federal

Republic voluntarily.

The applicant also brought an administrative court action against the

Federal Republic of Germany with a view to obtaining a declaratory

judgment that the German request causing his expulsion from Cyprus had

been unlawful. The action was dismissed by the Cologne Administrative

Court (Verwaltungsgericht) on 22 August 1985.

It appears that a civil action for damages, which had been suspended

pending the administrative court proceedings, was likewise to no

avail.

COMPLAINTS

The applicant complains:

that the German authorities unlawfully caused his and his companion's

expulsion from Cyprus and their deportation to Turkey; that the German

authorities denied them legal protection while they were in Turkey and

provoked their arrest and detention despite the decision of Turkish

tribunals ordering their release; and that the German authorities

unlawfully obtained their extradition;

that he was wrongly convicted and sentenced.

He alleges violations of Articles 5 and 6 (art. 5, art. 6)

of the Convention and Article 3 para. 2 of Protocol No. 4 (P4-3-2)

and various other provisions of international Conventions.

THE LAW

1. The applicant first complained that the German authorities

caused his deportation from Cyprus to Turkey and subsequently

illegally obtained his extradition. He has to this extent alleged a

violation of his right to liberty as guaranteed by Article 5 para. 1

(art. 5-1) of the Convention. However, neither his arrest in, and

deportation from, Cyprus nor his detention in, and extradition by,

Turkey were effected by German authorities and these measures cannot

be held to involve the responsibility of the Federal Republic of

Germany under the Convention. Furthermore it has not been established

that the applicant's arrest and detention prior to his extradition to

Germany had been unlawful.

Therefore the Commission has no competence ratione personae to examine

this complaint which is exclusively directed against the Federal

Republic of Germany.

It follows that in this respect the application is incompatible with

the provisions of the Convention within the meaning of Article 27

para. 2 (art. 27-2) of the Convention (cf. No. 2472/65, Dec. 7.4.67,

Coll. 23 p. 42 <49>).

2. The applicant also complained that he was wrongly convicted

and sentenced on 1 July 1983 by the Wiesbaden Regional Court and

submitted that the Court's proceedings were illegal.

With regard to the judicial decisions of which the applicant

complains, the Commission recalls that, in accordance with Article 19

(art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the Parties in the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers, on this point, to its constant

jurisprudence (see e.g. decisions on the admissibility of applications

No. 458/59, Yearbook 3, pp. 222, 236 and No. 1140/61, Collection of

Decisions, 8, pp. 57, 62).

It is true that in this case the applicant also complains that the

German authorities obtained his extradition in an unlawful manner. In

this connection he alleges a violation of Article 6 para. 1 (art. 6-1)

of the Convention.

However, this provision only relates to the proceedings determining

the criminal charges against the applicant and not to the extradition

proceedings. There is nothing to show that the guarantees contained

in Article 6 (art. 6) were not respected in the trial against the

applicant.

It follows that this part of the application 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)

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G. v. THE FEDERAL REPUBLIC OF GERMANY

G. v. THE FEDERAL REPUBLIC OF GERMANY

LEXI