FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41559/06 
by Haki CEKU 
against Germany

The European Court of Human Rights (Fifth Section), sitting on 13 March 2007 as a Chamber composed of:

Mr P. Lorenzen, President
 Mr K. Jungwiert
 Mr V. Butkevych
 Mrs M. Tsatsa-Nikolovska
 Mr J. Borrego Borrego
 Mrs R. Jaeger, 
 Mr M. Villiger, judges
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 10 October 2006,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Haki Ceku, is a Serbian national who was born in 1955. He is currently in detention in Lingen prison in Germany. He was represented before the Court by Mr M. Dollmann, a lawyer practising in Nierstein, Germany.

A.  The circumstances of the case

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

1. The applicant’s extradition and criminal conviction

On 30 August 1985 the applicant committed an armed robbery, killing a money courier and a bystander who had tried to prevent him from fleeing.

On 19 November 1987 the applicant was arrested in Spain, where he subsequently served a prison sentence for other criminal offences.

On an unspecified date the German authorities requested the applicant’s temporary surrender according to Article 19 § 2 of the European Convention on Extradition (see Relevant law below) for the purpose of conducting criminal proceedings against him. As the applicant had already served the main part of his Spanish prison sentence, the public prosecutor expected that the Spanish authorities might abstain from requesting the applicant’s return to Spain following termination of criminal proceedings in Germany. On 7 September 1999 the applicant was extradited to Germany.

On 7 March 2000 the Hanover Regional Court (Landgericht) convicted the applicant of two counts of murder and severe robbery, found that his guilt was of a particular gravity (besondere Schwere der Schuld), and sentenced him to life imprisonment. With regard to the gravity of the applicant’s guilt, the Regional Court noted that the applicant had committed several serious criminal offences within a short period of time. By shooting two persons he had fulfilled three criteria qualifying his actions as murder (killing from greed and in order to make another crime possible or cover it up). Furthermore, he had committed a severe robbery.

Following the applicant’s conviction in Germany, the Spanish authorities abstained from requesting his return to Spain. The applicant later on requested the Spanish authorities to demand a diplomatic assurance from the German authorities not to impose a life sentence on him. The Spanish authorities rejected this request on the grounds that the extradition proceedings had been terminated. The applicant is currently serving his prison sentence in a prison hospital in Germany.

2. The applicant’s state of health

In 1994 the applicant was diagnosed as being infected with HIV.  
The applicant assumes that he contracted the virus in the end of the 1980s when he had to undergo several operations during his detention in Spain.

According to an expert opinion submitted by the medical expert  
Dr M. on 26 October 2005, the applicant suffered from full-blown AIDS. While the applicant did not suffer from any acute new diseases, his immune deficiency could be expected to progress, entailing the risk of severe  
HIV-associated infections. The poor state of the applicant’s immune system was probably due to the fact that the applicant had, in the past, not always taken the prescribed anti-viral medication, as he had suffered from side effects and from a subjective inability to swallow the medication.  
The difficulty to regularly administer medication considerably shortened the applicant’s life-expectancy. A further limitation derived from the severe immune deficiency, which could, at any time, entail serious opportunistic infections or tumours. Under these circumstances, the expert estimated the applicant’s life expectancy to approximately two years. This estimation could only be revised if it was possible to successfully implement a therapy which was regularly taken by the applicant.

According to the applicant’s submissions, he had, in the meantime, been admitted to intensive care, as his state of health had dramatically deteriorated.

3. The application for a suspension of the sentence

On 9 May 2005 the Osnabrück Regional Court, sitting as an execution of sentence chamber (Strafvollstreckungskammer), having heard the applicant, the public prosecutor and the prison authority, rejected the applicant’s request for the remainder of his sentence to be suspended under section 57a of the Criminal Code (see Relevant law below).

On 24 June 2005, on the applicant’s complaint, the Oldenburg Court of Appeal (Oberlandesgericht) quashed this decision on the ground that the Regional Court had failed to determine from which date on the applicant would be eligible for parole, having regard to the gravity of his guilt, and remitted the case to the Regional Court.

On 5 December 2005 the Regional Court, once again, rejected the applicant’s request. It noted that the applicant had served 15 years of his sentence on 31 May 2005. It determined that the gravity of the guilt  
– notwithstanding other possibilities of suspending the sentence – warranted the execution of the sentence for two further years as from 15 May 2005.

The Regional Court found that the gravity of the applicant’s guilt required serving a considerably longer period than the minimum sentence of fifteen years. It further noted that the applicant had not shown any remorse and that he had not attempted to expiate his deeds. There was no indication of a positive development of the applicant’s personality.

Turning to the applicant’s illness, the Regional Court considered that the applicant’s state of health played an important role. Referring to the  
case-law of the Federal Constitutional Court (Bundesverfassungsgericht), the Regional Court found that the applicant could not be deprived of the possibility of being released from prison while still alive. It would be incompatible with human dignity to reduce the possibility of release to a remaining life-span spent in physical decline and approaching death.

Referring to the expert opinion submitted by Dr M. and to a further expert opinion submitted by the Regional Health Authority on 4 January 2005, the chamber estimated the applicant’s life expectancy to two years. However, this assessment was based on the assumption that the applicant did not regularly take his prescribed medication. The life expectancy could be prolonged if it was possible to successfully implement a therapy which was regularly taken by the applicant.

Taking into account the above circumstances, the chamber considered that the gravity of the applicant’s guilt warranted a further execution of the sentence for two years.

Apart from these considerations, the chamber considered that a suspension of the sentence could not be justified having regard to the interest in public security. The Chamber noted that the applicant had, during his detention, on several occasions threatened prison staff, although these threats had not been followed by any actions. According to an expert report drafted by the prison’s psychological service on 13 December 2004 the applicant did not show any remorse or feelings of guilt. He felt innocently convicted and tried to minimise his guilt. The fact that during the last months the applicant had calmed down was not due to any feeling of remorse, but to his progressing illness. The psychological service concluded that the applicant posed a considerable danger to the public. The Regional Court followed this assessment.

According to the Regional Court, the applicant’s state of health would not hinder him from committing even serious crimes. Furthermore, there was the risk that the applicant could have lost any restraint, as he had nothing left to lose.

On 4 January 2006 the Oldenburg Court of Appeal confirmed the Regional Court’s decision and rejected the applicant’s complaint. Insofar as the applicant complained about the circumstances of his extradition, his complaint was unfounded. During the extradition proceedings the length of the execution of the sentence had not been limited to fifteen years.

On 6 June 2006 the Federal Constitutional Court, sitting as a chamber of three judges, refused to admit the applicant’s complaint against the decision of the Oldenburg Court of Appeal of 4 January 2006 and of the Osnabrück Regional Court of 5 December 2005 for adjudication.

The Constitutional Court considered that the applicant’s submissions only partly fulfilled the admissibility requirements laid down in sections 23 § 1 and 92 of its Rules of Procedure. It noted, in particular, that the applicant had failed to submit the Regional Health Authority’s expert opinion, the submissions of the prison authorities and the expert opinion by the psychological service on which the Regional Court had to a considerable degree based its decision.

Insofar as the applicant complained that the circumstances of his extradition had been incompatible with the Rule of Law, his submissions did not suffice for an examination by the Constitutional Court. The content of the terms on which the States had agreed prior to the extradition was only reported in a very general way; the applicant had failed, in particular, to submit or to report the content of a decision taken in May 2000 by an unspecified Spanish authority, which eventually made possible the execution of the sentence in Germany.

The Federal Constitutional Court considered the remainder of the applicant’s complaint to be unfounded. The Federal Constitutional Court confirmed that the respect for human dignity demanded that any convicted person had to be granted the concrete and, in principle, realistic chance to regain his or her personal liberty.

With respect to the circumstances of the applicant’s case that court found as follows:

“The impugned decisions are, provided the further proceedings are conducted in a constitutional way, to be regarded as still compatible with the Constitution.

aa) The Constitution did not oblige the lower courts to immediately suspend the remaining prison sentence. A release after having served a fifteen years’ prison sentence would have complied with the procedure prescribed in case of an execution of a life sentence without particular gravity of the defendant’s guilt (section 75a subsection 1 sentences 1 and 2 of the Criminal Code). In the present case, however, the first instance court had established the particular gravity of the guilt, and the execution of sentence chamber has faultlessly confirmed the subsistence of this guilt, having regard to the criminal offences committed by the complainant.

The fact that the lower courts assumed that the complainant was dangerous also militated against an immediate release. The constitutional complaint does not sufficiently explain why the complainant’s illness should exclude this dangerousness. Quite apart from the fact that the complainant could commit criminal offences with minimal physical effort by using a firearm, the opinion submitted by the expert Dr M. does not show any acute pathological findings, notwithstanding the high probability of contracting serious diseases in the future.

bb) The finding that the particular gravity of the complainant’s guilt required that the sentence be executed for two further years is still acceptable from a constitutional point of view, taking into account the reservations mentioned by the court and provided that the further proceedings are conducted in a constitutional way.

The lower courts have not misjudged the constitutional standards and were, in particular, aware of the fact that it would be incompatible with human dignity to reduce the concrete and in principle realistic chance of release to a remaining life-span spent in physical decline and approaching death. Apart from the fact that the  
life-expectancy of two years as estimated by the expert Dr M. is not completely exhausted by the envisaged further execution of the sentence for two years, the courts were allowed to take into account the possibility of a prolongation of the  
life-expectancy, provided medication could be successfully implemented with the complainant’s collaboration.

...The complainant does not have a positive legal prognosis. In the case of criminal offences which are sanctioned by a life sentence, as is the case with murder, the need for public security has a high importance when establishing a legal prognosis.  
A suspension of the sentence must not lead to recidivist murders. It does not appear entirely far-fetched when the lower courts assumed that the complainant’s dangerousness was enhanced by the fact that he had nothing left to lose. It is difficult for the Constitutional Court to examine this matter as the applicant did not submit the comments made by the psychological service and by the prison authority.  
This concerns in particular the question whether it would have been necessary to hear an external expert.

The determination of the prospective duration of execution is still acceptable, as the possibility to react to a change of the relevant circumstances – as would be required by the constitution – is expressly reserved. It has to be assumed that the prison authorities will, without delay, inform the public prosecutor and the chamber in charge of the execution of sentences in case of any changes of the relevant circumstances, in particular of the complainant’s life expectancy and legal prognosis. In order to prepare his release, it will also have to be considered to grant relaxation measures in the execution of sentence.”

This decision was served on the applicant’s counsel on 17 June 2006.

B.  Relevant law and practice

1. International Treaties

Article 19 of the European Convention on Extradition (ETS no. 24) reads as follows:

Article 19 – Postponed or conditional surrender

“(1) The requested Party may, after making its decision on the request for extradition, postpone the surrender of the person claimed in order that he may be proceeded against by that Party or, if he has already been convicted, in order that he may serve his sentence in the territory of that Party for an offence other than that for which extradition is requested.

(2) The requested Party may, instead of postponing surrender, temporarily surrender the person claimed to the requesting Party in accordance with conditions to be determined by mutual agreement between the Parties.”

2. Domestic Law

In 1977 the German Federal Constitutional Court ruled that the respect for human dignity (Article 1 § 1 of the Basic Law) required that any person serving a life-sentence must have, in principle, a chance to regain personal liberty (1 BvL 14/76, published in the official collection of the decisions of the Federal Constitutional Court, volume 45, p. 187).

In order to implement this decision, the German legislator introduced the following section into the Criminal Code:

Section 57a Suspension of the Remainder of a Punishment of Imprisonment for Life

“(1) The court shall suspend execution of the remainder of a punishment of imprisonment for life and grant probation, if:

1. fifteen years of the punishment have been served;

2. the particular gravity of the convicted person’s guilt does not require its continued execution; and

3. the requirements of Section 57 subsection (1), sent. 1, nos. 2 and 3 are present.

Section 57 subsection (1), sent. 2 ... shall apply accordingly.”

The provisions referred to above read as follows:

Section 57

“(1) The court shall suspend the execution of the remainder of a fixed term of imprisonment and grant probation, if:

1. ...

2. this can be justified upon consideration of the security interests of the general public; and

3. the convicted person consents.

To be considered in making the decision shall be, in particular, the personality of the convicted person, his previous history, the circumstances of his act, the importance of the legal interest threatened in case of recidivism, the conduct of the convicted person while serving his sentence, his living conditions and the effects which can be expected as a result of the suspension.”

The relevant provisions of the Rules of Procedure of the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz) read as follows:

Section 23 § 1

“Applications for the institution of proceedings must be submitted in writing to the Federal Constitutional Court. The reasons must be stated; the requisite evidence must be specified.”

Section 92

“The reasons for the complaint shall specify the right which is claimed to have been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed.”

According to the consistent case-law of the Federal Constitutional Court, a complainant is obliged to submit all relevant material within the statutory time-limit of one month.

COMPLAINTS

1. The applicant complained under Article 3 of the Convention about his continued detention.

2. Invoking Article 18 in conjunction with Article 5 and Article 6 § 1 of the Convention, the applicant further complained that the German authorities had conducted the proceedings leading to his extradition from Spain in an unfair way.

THE LAW

1. Alleged violation of Article 3 of the Convention

The applicant alleged that his continued detention in his condition violated Article 3 of the Convention, which provides:

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

The applicant maintained that his continued detention entailed distress or hardship of an intensity exceeding the unavoidable level of suffering in detention. He pointed out that the date of his prospective release from prison lay only months before the estimated date of his death. Insofar as the domestic courts assumed that his condition might improve under regular medication, this had never been the case. On the contrary, his state of health had dramatically deteriorated, necessitating his admittance to intensive care. The fact that he was likely to die in prison without having the chance to regain liberty exceeded the threshold set by Article 3 of the Convention. The applicant further pointed out that to date, the lower courts had not taken the measures which the Federal Constitutional Court had deemed necessary in case of a change of his condition.

The Court notes, firstly, that the Federal Constitutional Court considered that the applicant’s complaint only partly fulfilled the admissibility criteria laid down in its Rules of Procedure. It noted, in particular, that the applicant had failed to submit a number of documents on which the Regional Court had to a considerable degree based its decision.

The Court reiterates that, whereas Article 35 § 1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it normally requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in the domestic law (see, among other authorities, Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 18, § 34; Janssen v. Germany, no. 23959/94, Commission decision of 9 September 1998; Elçi and others v. Turkey, nos. 23145/93 and 25091/94, § 604, 13 November 2003; Uhl v. Germany (dec.), no. 64387/01,  
6 May 2004).

Turning to the present case, the Court notes that the applicant has only partly complied with the conditions of admissibility as laid down in the rules of procedure of the Federal Constitutional Court, as he had failed to submit all the documents on which the lower courts had based their decisions. It follows that his application to the Court has to be regarded as being inadmissible pursuant to Article 35 § 1 of the Convention in so far as he did not comply with the domestic criteria of admissibility. This means, in particular, that the Court cannot base its examination of the case on facts which the applicant failed to submit to the Federal Constitutional Court and which the latter did not, therefore, review.

With regard to the substance of the applicant’s complaint, the Court reiterates its case-law according to which ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level of severity is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; Mouisel v. France, no. 67263/01, § 37, ECHR 2002-IX; Gelfmann v. France, no. 25875/03, § 48, 14 December 2004; Riviere v. France, no. 33834/03, § 59, 11 July 2006).

Article 3 of the Convention cannot be interpreted as laying down a general obligation to release a detainee on health grounds or to transfer him to a civil hospital, even if he is suffering from an illness that is particularly difficult to treat (see Mouisel, cited above, § 40). However, this provision does require the State to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured by, among other things, providing them with the requisite medical assistance (see Kudła, cited above, § 94; Mouisel, cited above, § 40; Gelfmann, cited above, § 50; Riviere, cited above, § 62).

Turning to the present case, the Court notes that the applicant has been infected with HIV for more than thirteen years. According to the medical expert opinion submitted to the domestic courts on 26 October 2005, the applicant suffered from AIDS. While he did not suffer from any acute diseases, his immune deficiency was very serious and was likely to progress, entailing the risk of severe HIV-associated infections. The expert estimated the applicant’s life expectancy to two further years.

The Court takes note of the applicant’s allegations that his state of health had, in the meantime, dramatically deteriorated, necessitating his being admitted to intensive care. The Court notes that the applicant has not given a specific date for this change in his state of health, neither has he submitted any documentary evidence. It appears, however, that this occurred only after the Federal Constitutional Court gave its final decision on 6 June 2006.  
It follows that the domestic courts were not in a position to consider these new facts. The Court further notes that the applicant, who was represented by counsel, has not established that he has availed himself of any domestic remedies following the deterioration of his health, such as filing a fresh request for his sentence to be suspended. Taking into account the ruling of the Federal Constitutional Court, which considered that the domestic authorities were under an obligation to react to any change of the relevant circumstances, there is no indication that such a fresh application would be devoid of prospect of success. It follows that the applicant has not exhausted domestic remedies with respect to these new facts, as required by Article 35 § 1 of the Convention. As a consequence, the Court is prevented from basing its assessment on these new facts.

With respect to the condition of the applicant’s detention, the Court notes that the applicant is currently detained in a prison hospital. The applicant does not suggest that his detention there is ill-adapted to his condition or that he does not receive appropriate treatment. The Court further notes that the domestic courts have thoroughly examined the applicant’s case and that the Federal Constitutional Court, in its decision of 6 June 2006, while finding the applicant’s continued detention to be still acceptable under the current circumstances, expressly acknowledged that a change of the applicant’s condition may warrant a fresh examination of his case.

The Court further observes that the domestic courts, basing their assessment on psychological expert opinion, considered that the applicant, who had committed two murders and remained unrepentant, posed a considerable danger to the public, in spite of his disease. The Court reiterates that, on the question of whether a person should remain in detention, it is precluded from substituting the domestic court’s assessment of the situation with its own, especially when, as in the instant case, the domestic authorities have generally discharged their obligation to protect the applicant’s physical integrity, notably by providing appropriate medical care (see Sakkopoulos v. Greece, no. 61828/00, § 44, 15 January 2004; and Gelfmann, cited above, § 52).

In these circumstances, the Court finds that neither the applicant’s state of health at the relevant time, nor his alleged distress, attained a sufficient level of severity to entail a violation of Article 3 of the Convention.  
It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2. Complaints about the extradition proceedings

Invoking Article 18 in conjunction with Article 5 and Article 6 § 1 of the Convention, the applicant complained about the alleged unfairness of the extradition proceedings. He complained, in particular, about the fact that the German authorities had requested the applicant’s temporary surrender pursuant to Article 19 § 2 of the European Convention on Extradition, even though they expected that the Spanish authorities might abstain from requesting his return following termination of the criminal proceedings in Germany. As a consequence, the Spanish authorities had not demanded a diplomatic assurance from the German authorities not to impose a life sentence on him, as they otherwise would have done.

The Court notes that the Federal Constitutional Court considered that the applicant’s submissions before that court did not suffice for an examination of the merits of his complaint. That court noted that the content of the terms on which the States had agreed prior to the extradition had been reported only in a very general way and that the applicant had failed to submit or report the content of a decision taken in May 2000 by the Spanish authorities.

The Court reiterates that the purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Civet v. France [GC], no. 29340/95, § 41, ECHR 1999-VI). As pointed out above, this normally requires that the complaints intended to be brought subsequently before the Court should have been made to the domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law.

Turning to the present case, the Court notes that the Federal Constitutional Court considered that the applicant, represented by counsel, had not submitted sufficient material in order to allow that court to examine the alleged violation of the rule of law. In these circumstances the applicant cannot be regarded as having exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. It follows that his complaints about the extradition proceedings must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen  
 Registrar President

CEKU v. GERMANY DECISION


CEKU v. GERMANY DECISION