FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44770/98 by M. S. against Germany

The European Court of Human Rights ( Fourth Section ) sitting on 20 January 2000 as a Chamber composed of

Mr M. Pellonpää, President , Mr G. Ress, Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk, Mr I. Cabral Barreto, Mrs N. Vajić, judges ,

and Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 November 1998 by M. S. against Germany and registered on 2 December 1998 under file no. 44770/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1971, is a citizen of former Yugoslavia residing in Duisburg ( Germany ). He is the general manager and a shareholder of a building company. Before the Court he is represented by Mr K. Brinkmann , a lawyer practising in Ratingen ( Germany ).

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

In 1987 the applicant arrived in Germany . In 1994 and 1995 he travelled for short periods to the United States . In April 1998 he married L.M., a German citizen. He is the father of two children, born in 1997 and 1998.

On 26 August 1998 the applicant was arrested and subsequently taken into detention with a view to extradition ( Auslieferungshaft ). The applicant ’ s arrest was based on an international arrest warrant of 1 September 1995 issued by a court in the United States , the Tarrant County District Court ( Texas ). The applicant was suspected of having raped a woman in December 1994 in Texas .

On 17 July 1998 the United States Embassy in Germany submitted to the German judicial authorities a request for the applicant ’ s extradition to the United States .

On 22 September 1998 the Düsseldorf Court of Appeal ( Oberlandesgericht ) ordered the applicant ’ s continued detention with a view to extradition. Subsequently, the court ordered the applicant ’ s extradition to the United States and found that there were no obstacles to it. The prosecution of the applicant had not yet become time-barred and concerned an extraditable offence. Furthermore, the applicant was not a German citizen. The applicant had denied having committed the offence he was charged with. However, whether or not the accusation was well-founded was not an issue to be addressed in the extradition proceedings, and there was no indication that the request for extradition had been made arbitrarily. Regarding the necessity of the applicant ’ s detention with a view to extradition, the court noted that the risk of the applicant ’ s absconding existed. In case of a conviction he risked a severe sentence. Furthermore, when he had been arrested in the United States in the context of the criminal proceedings against him in March 1995, he had been released on bail and had absconded.

On 19 October 1998 the Court of Appeal rejected the applicant ’ s request for having his extradition declared unlawful and rejected the request for release from detention with a view to extradition. The Court of Appeal found that since its decision of 22 September 1998 the applicant ’ s situation had not changed. Neither the fact that the applicant had been recognised as refugee by the German authorities nor the fact that he was married to a German citizen made him a German citizen within the meaning of the Basic Law ( Grundgesetz ). Therefore he could not rely on the prohibition to extradite German citizens provided for in Article 16 § 2 of the Basic Law .

On 4 November 1998 the applicant applied to the Federal Constitutional Court ( Bundesverfassungsgericht ). He submitted that the prohibition to extradite German citizens should also apply to him because, although not being a German citizen, he had close personal and family links to Germany

On 12 November 1998 the Federal Constitutional Court declined to accept the appeal for adjudication on the ground that it did not have a sufficient prospect of success.

COMPLAINTS

The applicant, relying on Article 5 § 1 (f) of the Convention, complains about the Düsseldorf Court of Appeal ’ s decision to grant his extradition and to order his detention with a view to expulsion. He submits that because of his strong integration into German society, in particular his family links to Germany , detention with a view to extradition constituted a disproportionate measure and should not have been ordered against him. Furthermore, the prohibition on extraditing German citizens should also extend to him because, although not being a German citizen, he had strong family links to Germany .

THE LAW

1. The applicant complains under Article 5 § 1 (f) of the Convention about the unlawfulness of his detention with a view to extradition. He submits that in view of his family ties to Germany such detention constituted a disproportionate measure.

Article 5 of the Convention insofar as relevant reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

The Court recalls that Article 5 § 1 (f) does not demand that the deportation or extradition of a person against whom action is being taken with a view to deportation or extradition be reasonably considered necessary, for example to prevent him from committing an offence or fleeing; in this respect Article 5 § 1 (f) provides a level of protection different from that offered in Article 5 § 1 (c). Indeed all that is required under this provision is that “action is being taken with a view to deportation or extradition”. It is therefore immaterial, for the purposes of Article 5 § 1 (f), whether the underlying decision to expel or extradite can be justified under national or Convention law (see the Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1862-1863, § 112).

In the present case the applicant has been taken into detention with a view to extradition. The applicant argues that the decision to extradite him was not correct because, in his view, the charges against him are not well-founded. However, the Court is not competent to express itself on the well- foundedness of the charges against the applicant. Furthermore, there is no indication that the decisions taken by the German courts on the request for the applicant ’ s extradition have been made arbitrarily. It is not disputed by the applicant that extradition proceedings have been instituted and are pursued.

In conclusion the Court finds that there is no appearance of a violation of the applicant ’ s rights under Article 5 § 1 (f) of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant further complains that his extradition should not have been granted in view of his family situation. He submits in particular that although he had strong links to Germany he was not afforded the privilege which was granted to German citizens, of not being subjected to extradition.

The Court finds that this complaint falls to be considered under Article 8 of the Convention which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Assuming that the decision of the German authorities to grant the applicant ’ s extradition to the United States constituted an interference with the applicant ’ s rights under Article 8 § 1 of the Convention, the Court finds that any such interference was justified under paragraph 2 of this provision. There is no doubt that the measure at issue was in accordance with the law and pursued a legitimate aim, namely the prevention of disorder and crime. Extradition being an indispensable means of international co-operation in the field of justice, the measure was also necessary in a democratic society. Furthermore, the Court recalls that a prisoner has no right, as such, under the Convention to choose the place of his confinement, and the separation of a detainee from his family constitutes an inevitable consequence of the detention (no. 5712/72, Dec. 15.7.1974, Collection of Decisions 46, p. 112; no. 23241/94, Dec. 20.10.94, unpublished).

The Court therefore finds that the decision by the German authorities to grant the applicant ’ s extradition to the United States, although it has an adverse effect on the applicant ’ s family life, does not disclose any appearance of a violation of the applicant ’ s rights under Article 8 of the Convention.

It follows that also this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

It follows that also this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3.              Lastly the applicant complains that he has been discriminated against in that German citizens are protected against extradition to a foreign country and the ensuing adverse effects on their family life while he as a foreigner was not although he had been strongly integrated into German society.

The Court finds that this complaint falls to be considered under Article 14 read in conjunction with Article 8 of Convention. Article 14 of the Convention reads as follows:

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

             The Court recalls that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous –, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, the Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, p. 32, § 22, and the Van Raalte v. the Netherlands judgment of 21 February 1997, Reports 1997-I, p. 184, § 33).

             Assuming the present complaint to fall within the ambit of Article 8 of the Convention, the Court recalls further that a difference in treatment is discriminatory for the purposes of Article 14 if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised”. Moreover the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see the Karlheinz Schmidt judgment, op. cit., pp. 32–33, § 24, and the Van Raalte judgment, op. cit., p. 186, § 39). The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States (see, among other authorities, the Rasmussen v. Denmark judgment of 28 November 1984, Series A no. 87, p. 15, § 40, and the Petrovic v. Austria judgment of 27 March 1998, Reports 1998-II, p. 587, § 38). However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention (see the Gaygusuz v. Austria judgment of 16 September 1996, Reports 1996-IV, p. 1142, § 42).

             In the present case the Court finds that the difference in treatment has relevant and sufficient grounds. The Court cannot overlook that extradition is a matter of international law and that the responsibility of a State for its own nationals and for other persons living on its territory in this field may vary. Thus, nationality is a distinction which, in the circumstances of the present case, must be considered as being based on an "objective and reasonable justification".

The decision of the German authorities to grant the applicant ’ s extradition has not, therefore, exceeded the margin of appreciation allowed to them. Consequently, the difference in treatment complained of was not discriminatory within the meaning of Article 14.

It follows that also this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President