Lexploria

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)

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R. v. THE FEDERAL REPUBLIC OF GERMANY

R. v. THE FEDERAL REPUBLIC OF GERMANY

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