FIFTH SECTION

DECISION

Application no . 20672/15 Ercan FINDIKOGLU against Germany

The European Court of Human Rights (Fifth Section), sitting on 7 June 2016 as a Chamber composed of:

Ganna Yudkivska, President, Angelika Nußberger, Erik Møse, Faris Vehabović, Síofra O ’ Leary, Carlo Ranzoni, Mārtiņš Mits, judges,

and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 27 April 2015 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Ercan Findikoglu, is a Turkish national who was born in 1981. He was represented before the Court by Mr Wallasch, a lawyer practising in Frankfurt.

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. By diplomatic note of 17 December 2013, the United States authorities transmitted a request to the German authorities for the applicant ’ s provisional arrest with a view to his extradition, pursuant to the relevant provisions of the United States -Germany extradition treaty.

4. The extradition request summarised the facts as follows:

“ ... In or about and between January 2010 and July 2013 Findikoglu, also known as “Segate” and “Predator”, together with others, led an international conspiracy to attack the computer networks of financial service providers in the United States and elsewhere by committing computer intrusions for the purpose of stealing and manipulating confidential account information for financial gain. ... The victims sustained devastating financial damage, as summarized below: FIS Unlimited operation ... approximately $ 14 million; ECS Unlimite d Operation ... approximately $ 5 million; enStage Unlimited Operation ... approximately $ 40 million. ...”

5. It then reproduced the content of the indictment issued by the District Court for the Eastern District of New York against the applicant on 25 July 2013, comprising the following charges:

“Count 1: Computer intrusion conspiracy, in violation of Title 18, United States Code, Section 371, carrying a maximum penalty of 5 years ’ imprisonment;

Count 2-4: Computer intrusion, in violation of Title 18, United States Code, Section 1030(a)(4), carrying a maximum penalty of 5 years ’ imprisonment per count;

Count 5: Wire fraud conspiracy, in violation of Title 18, United States Code, Section 1349, carrying a maximum penalty of 20 years ’ imprisonment;

Count 6: Bank fraud conspiracy, in violation of Title 18, United States Code, Section 1349, carrying a maximum penalty of 30 years ’ imprisonment;

Count 7: Bank fraud, in violation of Title 18, United States Code, Section 1344, carrying a maximum penalty of 30 years ’ imprisonment;

Count 8: Conspiracy to commit access device fraud, in violation of Title 18, United States Code, Section 1029(b)(2), carrying a maximum penalty of 7.5 years ’ imprisonment;

Counts 9, 11, 13: Trafficking in unauthorized access devices, in violation of Title 18, United States Code, Section 1029(a)(2), carrying a maximum penalty of 10 years ’ imprisonment per count;

Count 10, 12, 14: Effecting transactions with unauthorised access devices, in violation of Title 18, United States Code, Section 1029(a)(5), carrying a maximum penalty of 15 years ’ imprisonment per count;

Count 15: Money laundering conspiracy, in violation of Title 18, United States Code, Section 1956(h), carrying a maximum penalty of 20 years ’ imprisonment;

Count 16: Money laundering, in violation of Title 18, United States Code, Section 1956(a)(2)(A), carrying a maximum penalty of 20 years ’ imprisonment;

Count 17: Obstruction of justice conspiracy, in violation of Title 18, United States Code, Section 1512(k), carrying a maximum penalty of 20 years ’ imprisonment; and

Count 18: Obstruction of justice, in violation of Title 18, United States Code, Section 1512(b)(2)(B), carrying a maximum penalty of 20 years ’ imprisonment.

6. On 19 December 2013 the applicant was arrested in Frankfurt at a hotel near Frankfurt Airport, on the basis of the United States Department of Justice ’ s request for assistance in the prosecution of the applicant.

7. On 27 December 2013 the Frankfurt Court of Appeal ordered the applicant ’ s detention pending extradition.

8. After the United States Department of Justice had submitted the necessary documents, on 13 February 2014 and 9 April 2014, the court ordered the continuation of the applicant ’ s detention.

9. On 5 August 2014 the court decided that the applicant ’ s extradition to the United States was admissible. It stated, inter alia , that there was no indication that the expected conviction would be in breach of the German Basic Law.

10. On 9 August 2014 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He alleged in particular that the addition of possible individual sentences could add up to a prison sentence of 247.5 years, which would amount to inhuman and degrading treatment.

11. On 20 November 2014 the Federal Constitutional Court quashed the Court of Appeal ’ s decision of 5 August 2014. It found that the court ’ s decision lacked a sufficient assessment of the potential length of prison sentences in the United States, of the possibility of being released on parole and of whether the American criminal law system was compatible with the requirement that every conviction needs to be well balanced and proportionate ( Vereinbarkeit mit dem Gebot des sinn- und maßvollen Strafens ).

12. On 2 December 2014 the Court of Appeal requested further information from the United States Department of Justice regarding the length of the prison sentence to be expected in the case and whether the applicant would have to serve the full sentence if convicted.

13. On 14 December 2014 the United States Department of Justice submitted a legal analysis. It set out the law and practice of the State of New York as it applied to the applicant. It stated that the judge, in imposing a sentence, must consult the U.S. Federal Sentencing Guidelines.

14. With regard to the estimated sentence in the applicant ’ s case, the United States Department of Justice stated as follows:

“Before any trial, Mr. Findikoglu could, with the advice of his lawyer, decide to give up the right to a trial and plead guilty to the charges of the indictment, with or without the agreement of the prosecution. ... A timely admission of guilt is a factor which could reduce the sentence the judge decides to impose following a conviction. Title 18, United States Code, Section 3553 (b)(1), United States Sentencing Guidelines, Section 3E1.1. ... Mr Findikoglu may seek to reach an agreement with the Prosecution wherein he would plead guilty in exchange for certain favorable actions, such as an agreement to allow him to plead guilty to fewer than all the charges of the indictment ... or even lesser charges, or in exchange for the government ’ s promise to affirmatively recommend to the court that a particular lesser sentence is imposed. ...

If, however, Mr. Findikoglu decides not to plead guilty and instead exercises his right to a trial, and if he is found guilty of one or more charges, his sentencing exposure will vary, depending on the nature of the charges on which he is found guilty. Moreover, the judge will have a broad discretion to determine the appropriate sentence as further described below. ...

According to estimates of the sentencing guidelines calculated by the prosecutors assigned to this matter, based on an analysis of the U.S. Sentencing Guidelines factors viewed as being applicable based on the information known to the prosecutors at this time, if Mr. Findikoglu is found guilty of all charges, the advisory sentencing range is 324-420 months incarceration, far less than the 247.5 years he claims would be imposed.

...

At the same time, we note that a factor the judge must consider under Title 18, United States Code, Section 3553(a) is the need to avoid unwarranted sentence disparities. Several of Mr. Findikoglu ’ s co-conspirators have already been sentenced in a related case that is pending before the sa me judge who is assigned to Mr. Findikoglu ’ s case. One of these individuals faced a Guidelines range of 70-87 months and received a sentence of 22 months ’ incarceration. Another faced a Guidelines range of 78-90 months and received a sentence of 34 months incarceration. A third faced a Guidelines range of 37-46 mo nths and received a sentence of 15 months ’ incarceration. Of note, none of these defendants entered into cooperation agreements with the government. ...

United States Law provides Mr. Findikoglu with the possibility to seek reduction or commutation of his sentence post sentence, as explained below. Federal Rule of Criminal Procedure 35(b) provides the authority for a judge, upon a request of the prosecutor, to reduce a sentence already imposed to reflect a convicted person ’ s substantial assistance provided after his conviction ...

Moreover, following the imposition of any sentence, Mr. Findikoglu would have the right to appeal his conviction and sentence, which could result in the reversal of his conviction or the lowering of his sentence ... ”

15. Finally, the United States Department of Justice summarised the possibilities of a reduction of a sentence by executive clemency or compassionate release.

16. On 12 March 2015 the court ordered the continuation of the applicant ’ s detention.

17. On 25 March 2015 the court decided that the applicant ’ s extradition to the USA was admissible. It relied to a great extent on the United States Department of Justice ’ s calculations of the prison sentence to be expected in the applicant ’ s case and held, inter alia , that a potential length of up to 35 years was long, but not grossly disproportionate to the loss of approximately 59 million United States dollars caused by the applicant. As the court had no other sources of information than the calculation by the prosecution, on which the United States Department of Justice had relied, there was nothing to indicate that the sentencing court in the United States would not stay within that calculation. It found that access to the document with the calculation as such was not necessary, as the principle of good faith concerning extradition matters was applicable in the present case. Therefore, it had to trust the veracity of the legal submissions and there was no need to demand submission of the original document.

18. On 30 March 2015 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that the Court of Appeal had relied on a calculation which had been presented neither to the Court of Appeal nor to the applicant, but only reproduced by the U.S. Department of Justice in its submissions. Therefore, it had not been possible to verify the U.S. Department of Justice ’ s submissions. Furthermore, as the sentencing guidelines were only advisory and no assurances had been given, he still faced the risk of being sentenced to 247.5 years of prison. With regard to the judgment of the European Court of Human Rights in Trabelsi v. Belgium ( no. 140/10 ECHR 2014 (extracts)) that risk amounted to a breach of Article 3 of the Convention.

19. On 16 April 2015 the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint, without providing any reasons (no. 2 BvR 585/15).

20. On 25 April 2015 the applicant lodged an application with the European Court of Human Rights and requested interim measures with regard to his pending extradition.

21. On 4 May 2015 the Court refused to apply interim measures.

22. On 12 May 2015 the Foreign Ministry informed the United States of America by verbal note that the applicant ’ s extradition to the United States had been granted.

23. The applicant was extradited to the United States in June 2015.

COMPLAINTS

24. The applicant complained that his extradition to the United States of America exposed him to treatment incompatible with Article 3 of the Convention as he faced a disproportionately long prison sentence in the United States.

25. The applicant further complained under Article 6 of the Convention of the unfairness of the extradition proceedings in Germany, in particular that the Court of Appeal had failed to demand the calculation by the U.S. prosecutors assigned to the applicant ’ s case from the Department of Justice and had therefore breached the principle of equality of arms.

THE LAW

A. Complaint under Article 3 of the Convention

26. The applicant complained under Article 3 of the Convention that the range of offences on the basis of which his extradition had been granted carried a maximum prison sentence of 247.5 years. If convicted, he would have no prospect of being released, since that could only come via a presidential pardon, which would be very unlikely.

27. Article 3 reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

28. The Court reiterates that, under its well-established case-law, protection against the treatment prohibited under Article 3 is absolute. As a result, the extradition of a person by a Contracting State can raise problems under this provision and therefore engage the responsibility of the State in question under the Convention. This can be the case where there are serious grounds to believe that if the person is extradited to the requesting country he would run a real risk of being subjected to treatment contrary to Article 3 (see Trabelsi v. Belgium , no. 140/10 , § 116, ECHR 2014 (extracts) ). In such cases, Article 3 implies an obligation not to remove the person in question to the said country, even if it is a non-Convention State.

29. In order to establish if there is such a responsibility, the Court must inevitably assess the situation in the requesting country in terms of the requirements of Article 3. If the extradition is likely to have consequences in the requesting country which are incompatible with Article 3 of the Convention, the Contracting State must not extradite (see Othman (Abu Qatada) v. the United Kingdom , no. 8139/09, § 185, ECHR 2012 (extracts)) . It is a matter of ensuring the effectiveness of the safeguard provided by Article 3 in view of the serious and irreparable nature of the alleged suffering that is risked (see Soering v. the United Kingdom , judgment of 7 July 1989, Series A no. 161, pp. 35-36, § 90).

30. In determining whether it has been shown that the applicant ru n a real risk, if extradited, of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it ( see Čalovskis v. Latvia , no. 22205/13 , § 132, 24 July 2014 ).

32. The Court would add that, save for cases involving the death penalty, it has rarely found that there would be a violation of Article 3 if an applicant were to be removed to a State which had a long history of respect for democracy, human rights and the rule of law (see Babar Ahmad and Others v. the United Kingdom , nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09 , § 179, 10 April 2012) .

33. Turning to the case at hand, the Court notes at the outset that the applicant is not suspected of terrorism-related offences (contrast Trabelsi , cited above, § 121, and Babar Ahmad and Others , cited above, § 8) . In that regard, no information has been furnished to the Court in relation to practices by the United States authorities with regard to people suspected of cybercrime-related offences which would be similar to practices with regard to people suspected of terrorism-related offences.

34. Furthermore, the applicant is being prosecuted on eighteen charges relating, inter alia , to bank fraud and computer intrusion, offences which each carry a maximum term of five to thirty years of imprisonment. The sentence is discretionary in that the judge can impose a lighter penalty (see paragraph 3 above). Thus, none of the charges taken alone on which the applicant is being prosecuted has life imprisonment as a maximum penalty (contrast Trabelsi , cited above, § 121) .

35. In so far as the applicant complained that he might receive a disproportionately long prison sentence in the United States, the Court notes that that argument was based on the allegation that if the applicant was convicted of all of the offences listed in the indictment (see paragraph 3 above), the judge could impose a maximum sentence of 247.5 years of prison, which would amount to de facto life imprisonment.

38. The Court further notes that it is not contested by the applicant that several of his co-conspirators have been already sentenced in a related case that was pending before the same U.S. judge who was assigned to the applicant ’ s case. Although facing an advisory sentencing range of 70-87, 78-90 and 37-46 months respectively, those co-conspirators received sentences of 22, 34 and 15 months in prison respectively. In the applicant ’ s case, the advisory sentencing range amounted to 324-420 months in prison (see paragraph 14 above). In that regard, the applicant has not advanced any reasons why the advisory sentencing range would not be applied in his case or why its application depended on the applicant cooperating with the U.S. Government.

39. The length of the applicant ’ s prison sentence might be affected by pre-trial factors, such as agreeing to cooperate with the U.S. Government. Moreover, if the applicant was sentenced, he had the possibility to seek a reduction of his sentence, or commutation, if he provided substantial assistance after his conviction (see paragraph 14 above).

40. In the light of all the material placed before it, the Court is of the opinion that the existence of a risk of a prison sentence amounting to life imprisonment could not have been assumed in the present case. As a consequence, the problem of whether or not the applicant would have any chance of being released if convicted, is not relevant in the case at hand (contrast Trabelsi , cited above, § § 133-139).

41. Accordingly, the Court does not find that the applicant has demonstrated that his extradition to the United States exposed him to a real risk of treatment reaching the Article 3 threshold as a result of the sentence likely to be imposed on him in the U.S. criminal proceedings.

42. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4.

B. Complaint under Article 6 of the Convention

43. Invoking Article 6 of the Convention, the applicant complained that the extradition proceedings in Germany had been unfair; in particular, that the Court of Appeal had failed to demand the document with the sentencing calculation from the U.S. Department of Justice and had therefore breached the principle of equality of arms.

44. The Court reiterates that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant ’ s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention ( see Trabelsi , cited above, § 160, and RAF v. Spain (dec.), no. 53652/00, 21 November 2000) . Consequently, Article 6 § 1 is not applicable to the extradition proceedings in Germany.

45. It follows that this part of the application is inadmissible ratione materiae within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to its Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 30 June 2016 .

             Claudia Westerdiek Ganna Yudkivska Registrar President