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FIFTH
SECTION
CASE OF BUIJEN v. GERMANY
(Application
no. 27804/05)
JUDGMENT
STRASBOURG
1 April
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Buijen v. Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 9 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27804/05) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Dutch national, Mr
Jeroen Buijen (“the applicant”), on 23 July 2005.
- The
applicant was represented by Mr O. Wallasch, a lawyer practising in
Frankfurt. The German Government (“the Government”) were
represented by their Agent, Mrs A. Wittling-Vogel,
Ministerialdirigentin, of the German Ministry of Justice.
- On
25 August 2008 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- The
Government of the Netherlands, having been informed by the Section
Registrar of their right to intervene (Article 36 § 1
of the Convention and Rule 44 of the Rules of Court), indicated
that they did not wish to exercise this right.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Amsterdam.
- On
20 November 2001 the applicant was arrested in Lübeck in
Germany. On 21 November 2001 the Lübeck District Court
(Amtsgericht) issued a warrant for the applicant's arrest on
suspicion of trafficking in and importing narcotic substances. He was
subsequently remanded in custody.
- Following
negotiations with the applicant's legal representatives, the Lübeck
Public Prosecutor gave the applicant an assurance that the
prosecution service would institute proceedings under Article 11 of
the Convention on the Transfer of Sentenced Persons (European Treaty
Series no. 112, “the Transfer Convention”) if the
applicant confessed to the alleged crimes. Furthermore, they would
refrain from requesting a sentence exceeding eight years'
imprisonment.
- On
25 March 2002 the applicant confessed in writing to having committed
the crimes specified in the arrest warrant.
- On
6 May 2002 the Lübeck Public Prosecutor issued an indictment
against the applicant.
- Prior
to the oral hearing, the applicant's counsel informed the trial court
of the agreement reached between the applicant's defence lawyers and
the public prosecution service.
- During
the oral hearing before the Lübeck Regional Court (Landgericht),
which took place on 26 August 2002, the applicant gave a full
confession. The Public Prosecutor requested a sentence of eight
years' imprisonment. According to the transcript of the hearing, the
Public Prosecutor moreover declared as follows:
“....the Public Prosecution Office does not see
any reason not to proceed in accordance with Article 11 of the
Council of Europe's Transfer Convention.”
- On
26 August 2002 the Lübeck Regional Court, on the basis of the
applicant's confession, convicted him of unlawful trafficking in and
importing narcotic substances and sentenced him to eight years'
imprisonment. The court accepted the applicant's confession as a
mitigating factor. The applicant having waived his right to appeal,
the judgment became final on the same day.
- On
28 August 2002 the applicant applied to the Schleswig-Holstein
Ministry of Justice to institute transfer proceedings under Article
11 of the Transfer Convention. In his pleadings, the applicant's
counsel relied upon the agreement between the defence, the criminal
chamber at the Lübeck Regional Court and the Public Prosecutor's
Office at the Lübeck Regional Court.
- On
9 September 2002 the Ministry of Justice acknowledged receipt of the
applicant's request and informed him that the Head of the Chief
Public Prosecutors (Leitender Oberstaatsanwalt) in
Lübeck had been invited to submit comments on it.
- On
20 February 2003 the Head of the Chief Public Prosecutors stated that
he would only endorse a transfer under Article 10 of the Transfer
Convention on condition that the Dutch authorities gave an assurance
of continued enforcement and did not release him before two-thirds of
the sentence had been served.
- By
a letter of 5 March 2003 the applicant reminded the Justice Ministry
that, during the oral hearing held on 26 August 2002, the Public
Prosecutor had given an assurance that he would support the
applicant's request to be transferred under Article 11 of that
Convention.
- On
12 March 2003 the Justice Ministry sent the applicant's submissions
to the Head of the Chief Public Prosecutors for comment.
They
pointed out that it was no longer standard practice in Germany to
institute transfer proceedings under Article 11.
- On
24 April 2003 the Head of the Chief Public Prosecutors submitted a
report containing a statement given by the Public Prosecutor at the
hearing. The latter stated that, when giving the assurance, he had
not known the difference between Articles 10 and 11 of the Transfer
Convention and had expected the applicant to be transferred to the
Netherlands to serve the sentence imposed by the German courts. It
had been important to him to express his view that the applicant
should be allowed to serve his sentence in his home country.
- Based
on this statement, the Head of Public Prosecution considered that the
applicant could not be under the impression that he had been promised
a transfer under Article 11 with binding effect on the Ministry of
Justice. Subsequently, the Head of the Chief Public Prosecutors
refused to endorse a transfer under Article 11 and suggested a
transfer under Article 10 of the Transfer Convention.
- On
17 March 2003 the applicant asked the Schleswig-Holstein Court of
Appeal (Oberlandesgericht) for a judicial determination under
section 23 of the Introductory Act to the Courts Act
(Einführungsgesetz zum Gerichtsverfassungsgesetz, EGGVG,
see Relevant Domestic Law, below) with regard to the Public
Prosecutor's decision to pursue the applicant's transfer under
Article 10 and not, as he had previously been assured, under Article
11 of the Transfer Convention. He submitted that he had only
confessed in the light of the Public Prosecutor's assurance that the
prosecution service would support his transfer under Article 11, and
that the Public Prosecutor's decision to pursue the transfer under
Article 10 violated his right to a fair trial under the Convention.
- On
20 May 2003 the Court of Appeal rejected the applicant's request as
inadmissible. Referring to the Public Prosecutor's submissions, the
Court of Appeal considered that the Public Prosecutor's comment on
the applicant's transfer request did not constitute a judicial
decision within the meaning of section 23 of the Courts Act, as it
did not concern the domestic administration of criminal justice, but
related to a diplomatic relationship with a foreign State.
Furthermore, the Convention on the Transfer of Sentenced Persons did
not confer any individual rights on the applicant.
- On
26 May 2003 the applicant requested the Ministry of Justice to
reconsider its decision, having regard to the principle of fair
trial.
- On
18 June 2003 the Ministry of Justice informed the applicant of its
intention to pursue proceedings under Article 10 of the Transfer
Convention, having regard to State practice in relation to the
Netherlands.
- On
1 October 2003 the applicant gave his consent to his transfer under
Article 10 of the Transfer Convention. On 6 October 2003 the Dutch
Justice Ministry gave its consent to the applicant's transfer under
Article 10 of the Transfer Convention.
- On
22 October 2003 the applicant was handed over to the Dutch
authorities and subsequently served the remainder of his sentence in
a Dutch prison.
- On
18 January 2004 the applicant lodged a constitutional complaint
against the Ministry's decision of 18 June 2003.
- On
14 January 2005 the Federal Constitutional Court, sitting as a panel
of three judges, declined to consider the applicant's constitutional
complaint. According to the Federal Constitutional Court, the
applicant had failed to exhaust domestic remedies. With regard to
domestic remedies, the Federal Constitutional Court found as follows:
“The applicant has no right to a judicial review
of the exercise of discretion in so far as the decision is based on
general, in particular foreign policy, considerations..., the
evaluation of which belongs to the core area of Government. However,
the judicial review of discretionary powers in respect of law
enforcement remains unaffected thereby, in particular with regard to
the statement made on the day of the trial by the Lübeck Public
Prosecutor's Office... It cannot be denied that uncertainties may
remain for the person seeking justice in this connection in view of
the previously disputed contestability of decisions by the
authorising authority, as well as in regard to the possible legal
remedies. Sufficient account is taken of the possible uncertainties
in regard to the legal remedy on account of the possibility of a
binding referral under section 17a § 2 of the Courts Act. It is
reasonable to expect the applicant to have recourse to a disputed
legal remedy.”
- According
to the Federal Constitutional Court, it was for the lower courts to
decide which court was competent in the applicant's case.
These
courts had further to consider whether the impugned act interfered
with the applicant's right to a fair trial or with the principle of
protection of legitimate confidence. Notwithstanding the possibility
of lodging a fresh request, the fact that the relevant time-limits
for lodging appeals might in the meantime have expired did not lead
to the constitutional complaint being admissible.
- This
decision was served on the applicant's counsel on
10 February
2005.
- On
14 February 2005 the applicant unsuccessfully lodged a fresh request
with the Justice Ministry that execution of his sentence be taken
over under Article 11 of the Transfer Convention.
- On
20 March 2007 the applicant was released from prison, having served
two thirds of his sentence.
II. RELEVANT DOMESTIC LAW
- Section
17a § 2 of the Courts Act (Gerichtsverfassungsgesetz)
reads as follows:
“If the invoked court is not competent to
adjudicate the case, the court shall decide thus of its own motion
after hearing the parties and shall, at the same time, refer the
legal dispute to the competent court...The decision shall be binding
... on the court to which the legal dispute is referred.”
Section
23 of the Introductory Act to the Courts Act, in so far as relevant,
provides as follows:
“(1) Upon request, the ordinary courts shall
decide on the lawfulness of directives, orders or other measures
taken by the judicial authorities to regulate individual issues in
the sphere of the civil law ... and the criminal law.
(2) By means of a request for judicial determination an
order requiring a judicial or executive authority to take a decision
it has omitted or refused to take may also be sought.”
In
accordance with section 26 of the same Act, the request has to be
lodged within one month of communication of the impugned
administrative act. If a party has been prevented from complying with
this time-limit through no fault of their own, they can lodge a
request to restore the previous time-limit. However, such a request
is inadmissible if it has been lodged more than one year after expiry
of the time-limit, with the exception of cases of force majeure
(section 26(4)).
- The
German Act on International Mutual Assistance in Criminal Matters
does not explicitly define the role of the enforcement authority in
the transfer proceedings. The Act merely provides that the
authorising authority, which is the Federal Ministry of Justice –
which can delegate its competence to the Land Ministry –
must send a transfer request to the administering State. If the
decision is taken by a Land Ministry, that Ministry, after
consulting the public prosecutor's office, exercises discretion with
regard both to foreign policy considerations and law-enforcement
issues.
III. THE CONVENTION ON THE TRANSFER OF SENTENCED PERSONS
(ETS 112)
- The
aim of the Convention on the Transfer of Sentenced Persons (“the
Transfer Convention” – European Treaty Series no. 112) is
to develop international cooperation in the field of criminal law and
to further the ends of justice and the social rehabilitation of
sentenced persons. According to the Preamble, foreigners who are
deprived of their liberty as a result of their commission of a
criminal offence should be given the opportunity to serve their
sentence within their own society.
Article
9 (“Effect of transfer for administering State”) reads as
follows:
“1. The competent authorities of the
administering State shall:
(a) continue the enforcement of the sentence
immediately, or through a court or administrative order, under the
conditions set out in Article 10, or
(b) convert the sentence, through a judicial
or administrative procedure, into a decision of that State, thereby
substituting for the sanction imposed in the sentencing State a
sanction prescribed by the law of the administering State for the
same offence, under the conditions set out in Article 11.
2. The administering State, if requested,
shall inform the sentencing State before the transfer of the
sentenced person as to which of these procedures it will follow.
3. The enforcement of the sentence shall be
governed by the law of the administering State and that State alone
shall be competent to take all appropriate decisions.
...”
Article
10 (“Continued enforcement”) provides:
“1. In the case of continued
enforcement, the administering State shall be bound by the legal
nature and duration of the sentence as determined by the sentencing
State.
2. If, however, this sentence is by its
nature or duration incompatible with the law of the administering
State, or its law so requires, that State may, by a court or
administrative order, adapt the sanction to the punishment or measure
prescribed by its own law for a similar offence. As to its nature,
the punishment or measure shall, as far as possible, correspond with
that imposed by the sentence to be enforced. It shall not aggravate,
by its nature or duration, the sanction imposed in the sentencing
State, nor exceed the maximum prescribed by the law of the
administering State.”
Article
11 (“Conversion of sentence”) reads as follows:
“1. In the case of conversion of
sentence, the procedures provided for by the law of the administering
State apply. When converting the sentence, the competent authority:
(a) shall be bound by the findings as to the
facts in so far as they appear explicitly or implicitly from the
judgment imposed in the sentencing State;
(b) may not convert a sanction involving
deprivation of liberty to a pecuniary sanction;
(c) shall deduct the full period of
deprivation of liberty served by the sentenced person; and
(d) shall not aggravate the penal position of
the sentenced person, and shall not be bound by any minimum which the
law of the administering State may provide for the offence or
offences committed.
2. If the conversion procedure takes place
after the transfer of the sentenced person, the administering State
shall keep that person in custody or otherwise ensure his presence in
the administering State pending the outcome of that procedure.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the proceedings concerning his transfer
request violated his right to a fair hearing, as provided for in
Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair ... hearing ... by [a] ... tribunal ...”
- The
Government contested that argument.
A. Admissibility
1. Applicability of Article 6 § 1 of the Convention
(a) The Government's submissions
- In
the Government's view, Article 6 § 1 of the Convention was not
applicable to the proceedings regarding the applicant's transfer
request as the matter did not concern the determination of a criminal
charge. Referring to the Court's decision in the case of Homann v.
Germany (no. 12788/04,
9 May 2007), the Government considered
that Article 6 § 1 of the Convention was only applicable in
respect of the proceedings concerning the determination of the
sentence, which were terminated by the judgment pronounced on 26
August 2002. It did not, however, apply to the proceedings concerning
the applicant's transfer requests, as no new charges had been brought
against the applicant following the final sentence. According to the
Government, in the case of an assurance given in proceedings
concerning a criminal charge, Article 6 only applied in so far as
that assurance had had an impact on the accused's conduct in the
proceedings and could possibly be considered to constitute a
violation of the right to a fair trial. However, the applicant had
not applied to the ordinary courts for a review of the criminal
judgment.
- The
Government emphasised that the inapplicability of Article 6 § 1
did not mean that enforcement of the sentence would be unfair, as the
right to a fair trial was guaranteed by the German Constitution.
(b) The applicant's submissions
- According
to the applicant, Article 6 § 1 was applicable in the instant
case, as the proceedings concerning his transfer request concerned
his civil rights, in particular, the right to liberty. He alleged
that the conversion of the sentence by the Dutch courts would have
led to his earlier release from prison.
(c) The Court's assessment
- The Court reiterates that in criminal matters the
period governed by Article 6 § 1 covers the whole of the
proceedings in issue, including appeal proceedings. It is true that
the Court has generally held that Article 6 § 1 under its
criminal head does not apply to proceedings relating to the execution
of a final criminal sentence (see Enea v. Italy [GC], no.
74912/01, § 97, 17 September 2009). However, the Court
has also held that in the event of conviction, there is no
“determination ... of any criminal charge”, within the
meaning of Article 6 § 1, as long as the sentence is not
definitively fixed (see Eckle v. Germany, 15 July 1982, §
77, Series A
no. 51).
- Turning
to the circumstances of the present case, the Court observes that,
from a technical point of view, the applicant's conviction became
final on 26 August 2002 when he waived his right to appeal against
the Lübeck Regional Court's judgment of that date. The Court
considers, however, that under the particular circumstances of this
case it has to be taken into account that the proceedings relating to
the applicant's transfer request were very closely related to the
criminal proceedings and to the final determination of the sentence.
The Court notes, in particular, that the Public Prosecutor, during
the proceedings leading to the applicant's conviction, expressly
declared that they had no reservations about the transfer of the
defendant to the Netherlands. The applicant gave a full confession
leading to his criminal conviction on the strength of this
reassurance. Although the Lübeck Regional Court imposed a
criminal sentence based on the applicant's conviction, this was not
to be considered as final having regard to the possibility of
converting the sentence following a transfer to the applicant's home
country.
- Having
regard to these exceptionally close connections between the criminal
proceedings and the proceedings concerning the applicant's transfer
request, it would be too formalistic to limit the scope of
application of Article 6 under its criminal head to the proceedings
which took place before pronouncement of the judgment on 26 August
2002. The Court therefore considers that the transfer proceedings
have to be regarded as an integral part of the criminal proceedings
in so far as they directly relate to the assurance which was given by
the Public Prosecutor during the criminal proceedings.
- The
Court is aware of the fact that the decision taken by the Justice
Ministry on the transfer request does not solely depend on the public
prosecutor's recommendations and on considerations regarding the
execution of sentence, but also on considerations of foreign policy
which fall within the core area of public law. It is therefore
acceptable if this part of the decision is not subject to judicial
review. Accordingly, the Court has previously held that Article 6 §
1 was not applicable to proceedings under the Transfer Convention
(see Csoszánski v. Sweden (dec.), no. 22318/02,
27
June 2006; Szabo v. Sweden (dec.), no. 28578/03, 27 June 2006;
and Veermae v. Finland (dec.), no. 38704/03, 15 March 2005).
However, in those cases the Transfer Convention was not prospectively
influencing the course of the trial and the fixing of the sentence,
because no assurance was given by the public prosecution before or
during the criminal proceedings.
- It
follows that Article 6 § 1 of the Convention under its criminal
head is, under the specific circumstances of the present case,
applicable to the proceedings concerning the applicant's transfer
request in so far as they relate to the assurance given by the public
prosecution during the criminal proceedings.
- It
follows that the applicant's complaint under Article 6 of the
Convention is not incompatible ratione materiae with the
provisions of the Convention.
2. Exhaustion of domestic remedies
- According
to the Government, the applicant failed to exhaust domestic remedies
as required by Article 35 § 1 of the Convention.
- The
applicant contested that argument.
- The
Court reiterates that the rule of exhaustion of domestic remedies
must be applied with some degree of flexibility and without excessive
formalism. At the same time, it normally requires that the complaints
intended to be made subsequently at the international level should
have been aired before the appropriate national courts, at least in
substance and in compliance with the formal requirements and
time-limits laid down in domestic law (see, among many other
authorities, Scoppola v. Italy (no. 2) [GC], no.
10249/03, § 69, 17 September 2009).
- However,
the obligation under Article 35 requires only that an applicant
should have normal recourse to the remedies likely to be effective,
adequate and accessible (see Scoppola, cited above, §
70). In particular, the only remedies which the Convention requires
to be exhausted are those that relate to the breaches alleged and are
at the same time available and sufficient. The existence of such
remedies must be sufficiently certain not only in theory but also in
practice, failing which they will lack the requisite accessibility
and effectiveness (see Dalia v. France, 19 February 1998,
§ 38, Reports of Judgments and Decisions 1998-I).
- Lastly,
Article 35 § 1 of the Convention provides for a distribution of
the burden of proof. As far as the Government is concerned, where it
claims non-exhaustion it must satisfy the Court that the remedy was
an effective one available in theory and in practice at the relevant
time, that is to say, that it was accessible, was capable of
providing redress in respect of the applicant's complaints and
offered reasonable prospects of success (see Sejdovic v. Italy
[GC], no. 56581/00, § 46, ECHR 2006-II, and Scoppola,
cited above, § 71).
- The Court considers that the Government's objection
raises issues concerning the effectiveness of legal remedies which
are closely linked to the merits of the applicant's complaint. Thus,
it decides to join this objection to the merits of the case.
3. Conclusion
- The
Court considers, in the light of the parties' submissions, that the
complaint raises serious issues of fact and law under the Convention,
the determination of which requires an examination of the merits. The
Court concludes therefore that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring it inadmissible has been
established.
B. Merits
1. The applicant's submissions
- The
applicant complained under Article 6 § 1 of the Convention about
the domestic authorities' refusal to institute transfer proceedings
under Article 11 of the Transfer Convention, contrary to the previous
assurance given by the Public Prosecutor. He pointed out that he had
only given his confession on the strength of that assurance. The
applicant considered that the Public Prosecutor's assurance had to be
regarded as being binding on the Ministry of Justice.
- The
applicant further complained under Article 6 § 1 of the
Convention that the Federal Constitutional Court had failed to inform
him in good time of his alleged failure to exhaust domestic remedies.
According to the applicant, he had not been able to challenge the
judgment given by the Lübeck Regional Court on 26 August 2002,
as he had waived his right to appeal in view of the assurance given.
He was now barred from seeking judicial review.
- He
further pointed out that he had unsuccessfully lodged an application
for judicial review under section 23 of the Introductory Act to the
Courts Act.
2. The Government's submissions
- The
Government considered that the applicant had failed to make use of
the remedies available to him under the domestic law. They pointed
out, firstly, that the applicant had not contested the judgment of
26 August 2002. The Government further considered that the
applicant had not made use of all remedies available to him in the
enforcement proceedings.
- As
the Federal Constitutional Court had clarified (Decisions of the
Federal Constitutional Court 96, p. 100 et seq.), the decision taken
by the law-enforcement authority regarding whether a proposal for a
transfer request was to be made represented a legal act which was
subject to judicial review, as guaranteed by the Basic Law. While the
applicant had no right to judicial review of the exercise of
discretion in so far as the decision was based on general – in
particular foreign policy – considerations, judicial review of
the discretionary powers in respect of law enforcement remained
unaffected thereby, in particular with regard to the statement made
on the day of the trial by the Lübeck Public Prosecutor. While
the applicant had contested the Public Prosecution Office's decision
before the
Schleswig-Holstein Court of Appeal, he had failed to
lodge a constitutional complaint against the decision given by that
court on 20 May 2003.
In respect of the decision of the Ministry,
he had not availed himself of the lower courts but turned directly to
the Federal Constitutional Court.
- The
Government further considered that the applicant had not had a
legitimate expectation of being transferred under Article 11 of the
Transfer Convention. While the Public Prosecutor's endorsement of a
transfer under Article 10 of the Transfer Convention might be seen as
non-compliance with the assurance originally given to the applicant,
this had not had a decisive effect on the outcome of the transfer
proceedings, as the Public Prosecutor's statement was not binding on
the Justice Ministry.
3. The Court's assessment
- The
Court notes, at the outset, that the German courts did not review the
substance of the applicant's complaint about the refusal to institute
transfer proceedings under Article 11 of the Transfer Convention.
It
therefore considers that the applicant's complaint primarily falls to
be examined under Article 6 § 1 in the light of the right of
access to court.
The Court reiterates that the right to a court,
of which the right of access constitutes one aspect, is not absolute
but may be subject to limitations. Nevertheless, the limitations
applied must not restrict the access left to the individual in such a
way or to such an extent that the very essence of the right is
impaired. The requirement of access to court must be entrenched not
only in law but also in practice, failing which the remedy lacks the
requisite accessibility and effectiveness (see, among other
authorities,
Moldovan v. Romania (no. 2), nos. 41138/98
and 64320/01, § 118,
ECHR 2005 VII (extracts)).
- Turning
to the circumstances of the present case, the Court notes that there
is a dispute between the parties as to whether the applicant had at
his disposal an effective legal remedy which would have allowed him
to contest the Justice Ministry's refusal to instigate transfer
proceedings under Article 11 of the Transfer Convention.
- With
regard to the parties' submissions, the Court notes the following:
while alleging that the applicant could have contested the refusal
before the lower courts, the Government did not indicate precisely
which remedy was available to the applicant at the relevant time and
to which court the applicant should have addressed himself. Neither
the Government nor the Federal Constitutional Court cited any
case-law of the lower courts as to the admissibility of legal
remedies in cases like the applicant's. Furthermore, in the decision
given on the applicant's complaint the Federal Constitutional Court
conceded that the contestability of the Justice Ministry's decision
had been in dispute. Finally, the Court notes that the applicant
lodged a request for review with the Court of Appeal which was
declared inadmissible.
-
Consequently, the Court finds that, in the particular circumstances
of the present case, it has not been shown that there was a
possibility of instituting an effective action for review of the
refusal to institute transfer proceedings after a relevant assurance.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the applicant has been denied access to a court with
regard to the part of the decision on his transfer request which did
not concern considerations of public policy.
There
has accordingly been a violation of Article 6 § 1 of the
Convention.
- For
the reasons set out above, the Court further considers that the
applicant has to be regarded as having exhausted domestic remedies as
required by Article 35 § 1 of the Convention. It follows that
the Government's objection is to be rejected.
- Having
regard to the foregoing, the Court does not consider it necessary to
examine the remainder of the applicant's complaints under Article 6.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 50,000 euros (EUR) in respect of
non-pecuniary
damage. According to the applicant, his prison sentence would have
been considerably reduced by the Dutch authorities if the transfer
request had been made under the conversion procedure.
The
applicant believes that he wrongfully served at least two years'
imprisonment in the Netherlands.
- The
Government did not submit any comments.
- The
Court considers that it cannot speculate as to what would have been
the outcome of the proceedings if the applicant had been granted
access to the courts. On the other hand, it considers that the
applicant has sustained certain non-pecuniary damage and, ruling on
an equitable basis, awards him EUR 5,000 under this head.
B. Costs and expenses
- The
applicant did not submit any claims for costs and expenses.
Accordingly, the Court considers that there is no call to award him
any sum on that account.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join to the merits the
Government's objection as to
non-exhaustion of domestic remedies
and rejects it;
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 (right of access to court) of the Convention;
- Holds that there is no need to examine the
application under the other aspects of Article 6 § 1 of the
Convention raised by the applicant.
- Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 5,000 (five thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage.
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 1 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
