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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. AUSTRIA - 1918/63 [1963] ECHR 6 (18 December 1963) URL: http://www.bailii.org/eu/cases/ECHR/1963/1918_63.html Cite as: [1963] ECHR 6

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THE FACTS

Whereas the facts presented by the Applicant may be summarised as
follows:

The Applicant is a German citizen born in ...

On ... 1961 the Applicant and a certain Y were arrested on the
suspicion that, acting in concert in A and B in 1961 they deceived
hotel-keepers with regard to their solvency and defrauded them of
specified sums of money, committed burglary in B and a passport
falsification offence in A. On ... 1961 the Regional Court of B found
both men guilty of these offences and sentenced the Applicant to 10
months imprisonment. Since the time spent in custody pending
investigation was deducted from the penalty, the Applicant completed
his sentence on ... 1962. He was re-arrested pending extradition,
however, on the same day, Austrian police enquiries and later
information from the Interpol services of various States having
revealed that, prior to their arrest in Austria, the Applicant and Y
had been accomplices in criminal offences committed in numerous
countries, where they were consequently wanted by the judicial (and
police) authorities.

Section 39 of the Penal Code provides that the State in which an
offence regarded by Austrian law as a crime was committed shall be
asked whether it wishes the extradition of the offender. Accordingly,
the Federal Ministry of Justice, acting on a report by the Regional
Court of B, asked the Minister of Justice of North Rhine-Westphalia and
the Senator for Justice in Berlin (since suspicion first arose
concerning criminal offences committed in the Federal Republic of
Germany and in Berlin) on ... 1961 whether they wanted the extradition
of the above persons. On ... 1961 the Senator for Justice in Berlin
did, in fact, request the extradition of the Applicant for criminal
proceedings, warrants for his arrest having been issued by the Court
in Berlin on ... 1961 and ... 1961 on grounds of criminal offences
committed by him in collaboration with Y in the Federal Republic of
Germany, the Netherlands, Belgium, France, Spain, Italy and
Switzerland. The Senator for Justice in Berlin made a request at the
same time for the extradition of Y, but only on account of the criminal
offences he had committed in Berlin. In accordance with Section 39 of
the Penal Code, this entailed asking the Netherlands, French and
Spanish Governments also, through diplomatic channels, whether they
desired the extradition of Y. The French did, in fact, make a formal
request on ... 1961 and ... 1962 for the extradition, not only of Y but
also of the Applicant. Finally, the Spanish Government, having first
of all requested the extradition of Y asked in ... 1962 that the
Applicant be extradited first to France and not to Berlin, since he
could not subsequently be extradited from there to France on account
of his German nationality.

Despite the individual time-limits set for the submission by the
Governments concerned of requests for extradition, delays occurred
owing to the fact that a number of requests were received late while
others were not at first presented in the proper form. Further delays
were caused because the documents transmitted with the requests had
first to be translated.

Finally, requests had been filed by three Governments for the
Applicant's extradition, partly on grounds of the same offences. These
requests could not be dealt with individually, but had to be examined
conjointly so that it could be decided which request should be given
priority - in other words to which Government the Applicant was to be
handed over first - and whether and how far his subsequent extradition
by that Government to the others was permissible. Furthermore the
decisions regarding the Applicant's and Y's extradition had to be taken
jointly, it being necessary, owing to their complicity, to secure a
confrontation of the two accused. Finally, authorization had to be
obtained from the transit countries for the extradition of the accused
to France and/or Spain through their territory.

Not until ... 1963 was it known definitely which of the Governments
concerned desired the extradition of the Applicant. In order to
facilitate extradition proceedings, the Federal Ministry of Justice on
... 1963 instructed the Regional Court of B to draw up a report on the
case, to be placed at the Court's disposal.

Since investigations conducted meanwhile had confirmed suspicion
regarding further offences committed by the Applicant in other States,
the Federal Ministry of Justice asked the Swiss and Belgian Governments
through diplomatic channels on ... 1962 whether they wanted the
extradition of the Applicant and Y; these States, however, replied in
the negative. Consequently, it was not until ... 1963, after various
questions concerning the said extradition requests had been cleared up
and the Judge's Council (Ratskammer) of the Regional Court of B had
submitted its report on ... 1963 in accordance with Section 59 of the
Code of Criminal Procedure, that the Court of Appeal of B was able to
take a joint decision concerning all the requests. The Court gave
priority to the French Government's request and authorised the
Applicant's and Y's extradition to France first, subject to that
country's consent to their eventual extradition to Spain and Berlin.
In its decision, the Court took account, in particular, of the French
Government's statements and the advisability of the Applicant and Y
being jointly tried by - in succession - the competent French, Spanish
and German Courts for the offences committed jointly by them. The
Applicant and Y were accordingly handed over to the Swiss authorities
on ... 1963 for their transfer to France.

In November and December 1962 the Applicant complained to the Ministry
of Justice and to Parliament alleging an undue delay in the extradition
proceedings, but apparently never received a reply. On ... 1963 he
lodged a formal complaint (Dienstaufsichtsbeschwerde) with the Court
of Appeal (Oberlandesgericht) of B, which was rejected on ... 1963 in
a non-public session at which the Chief Public Prosecutor
(Oberstaatsanwalt) was heard but the Applicant was not represented.
In the beginning of ... 1963 he was orally informed of the above
decision of ... 1963 by the Court of Appeal. He was, however, refused
a copy of the decision.

Whereas the Applicant alleges violations of the following Articles of
the Convention:

- Article 5, paragraph (1) (c) and (f), in that as from ... 1962 he is
detained without a court decision to that effect;
- Article 5, paragraph (3), in that the question of his extradition was
not decided within a reasonable time;
- Article 6, paragraph (3) (c), in that in spite of his request he was
not given legal assistance during the extradition proceedings;
consequently, he was not represented at the hearing of his case on ...
1963 by the Court of Appeal of B;
- Article 6, paragraphs (2) and (3), in that under the pretext of
"danger of escape" he is detained for a period which, in connexion with
further convictions in Germany, France and Spain, will be out of
proportion to the crimes committed, in particular, in view of his young
age and his lack of a previous record;
- Article 13, in that his complaints were either ignored or rejected.

Whereas the Applicant demands that the period spent in detention
pending extradition shall be taken into account for the purposes of the
calculation of the sentence to be given by a French court.

THE LAW

Whereas, in regard to the alleged violation of Article 5, paragraphs
(1) (c) and (f) and (3) (Art. 5-1-c, 5-1-f, 5-3) of the Convention, it
is to be observed that, under Article 26 (Art. 26) of the Convention
the Commission may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law; whereas, under Article 113 of the Code of Criminal
Procedure, the Applicant could have appealed to the Judge's Council of
the Regional Court of B against any decision rejecting his request for
a release; whereas, furthermore, under Article 114 of the same Code he
could have lodged a further appeal with the Court of Appeal of B
against a decision of the Judge's Council; and whereas the Applicant
failed to avail himself of any of these remedies; whereas the
disciplinary complaint (Dienstaufsichtsbeschwerde) lodged by the
Applicant on ... 1963 cannot be considered to constitute an appeal
within the meaning of these provisions of the Code of Criminal
Procedure; whereas, therefore, he has not exhausted the remedies
available to him under Austrian law; whereas, moreover, an examination
of the case as it has been submitted, including an examination made ex
officio, does not disclose the existence of any special circumstances
which might have absolved the Applicant, according to the generally
recognised rules of international law, from exhausting the domestic
remedies at his disposal; whereas, in particular, the Applicant's
ignorance of the existence of these remedies does not constitute any
such special circumstance; whereas, in this respect the Commission
refers to its decision on the admissibility of Application No. 1211/61
(M. v. the Netherlands - Collection of Decisions, Volume 9, page 46);
whereas, therefore, the condition as to the exhaustion of domestic
remedies laid down in Article 26 has not been complied with by the
Applicant; whereas it follows that this part of the Application must
be rejected in accordance with Article 27, paragraph (3) (Art. 27-3),
of the Convention;

Whereas in regard to the alleged violations of Article 6, paragraphs
(2) and (3) (Art. 6-2, 6-3) it is to be observed that these two
paragraphs guarantee certain procedural rights to "everyone charged
with a criminal offence"; whereas the Applicant, during the proceedings
before the Regional Court of B and the Court of Appeal of B concerning
his extradition, had already been convicted of the crimes which he
committed on Austrian territory and had already served the sentence
imposed upon him in respect of these crimes; whereas, in accordance
with Article 59 of the Code of Criminal Procedure, the Courts were
called upon to decide only the question whether or not the Applicant
should be extradited to one or more foreign countries and, if so, to
which of the countries which had requested his extradition; whereas,
accordingly, during the proceedings before the Austrian Courts, the
Applicant was not "charged with a criminal offence" within the meaning
of the above two paragraphs;

Whereas it follows that the rights enlisted in paragraphs (2) and (3)
are not applicable to the proceedings under Article 59 of the Code of
Criminal Procedure; whereas, consequently, this part of the Application
is incompatible with the provisions of the Convention and must be
rejected in accordance with Article 27, paragraph (2) (Art. 27-2) of
the Convention;

Whereas, in respect of the alleged violation of Article 13 (Art. 13)
of the Convention, it is to be observed that this Article states that
"an effective remedy before a national authority shall be given to
everyone whose rights and freedoms as set forth in the Convention are
violated"; whereas the Commission has held above that none of the
rights and freedoms set forth in the Convention have been violated in
the Applicant's case; whereas, therefore, Article 13 (Art. 13) has no
application in the circumstances of the present case; whereas in this
respect the Commission refers to its decisions on the admissibility of
Applications Numbers 472/59 (W. v. the Federal Republic of Germany -
Yearbook III, page 206) and 912/60 (W. v. Sweden); whereas it follows
that this part of the Application is manifestly ill-founded and must
be rejected in accordance with Article 27, paragraph (2) (Art. 27-2)
of the Convention;

Now therefore the Commission declares this application INADMISSIBLE.