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X. v. AUSTRIA - 1918/63 [1963] ECHR 6 (18 December 1963)
THE FACTSWhereas the facts presented by the Applicant may be summarised asfollows:The Applicant is a German citizen born in ...On ... 1961 the Applicant and a certain Y were arrested on thesuspicion that, acting in concert in A and B in 1961 they deceivedhotel-keepers with regard to their solvency and defrauded them ofspecified sums of money, committed burglary in B and a passportfalsification offence in A. On ... 1961 the Regional Court of B foundboth men guilty of these offences and sentenced the Applicant to 10months imprisonment. Since the time spent in custody pendinginvestigation was deducted from the penalty, the Applicant completedhis sentence on ... 1962. He was re-arrested pending extradition,however, on the same day, Austrian police enquiries and laterinformation from the Interpol services of various States havingrevealed that, prior to their arrest in Austria, the Applicant and Yhad been accomplices in criminal offences committed in numerouscountries, where they were consequently wanted by the judicial (andpolice) authorities.Section 39 of the Penal Code provides that the State in which anoffence regarded by Austrian law as a crime was committed shall beasked whether it wishes the extradition of the offender. Accordingly,the Federal Ministry of Justice, acting on a report by the RegionalCourt of B, asked the Minister of Justice of North Rhine-Westphalia andthe Senator for Justice in Berlin (since suspicion first aroseconcerning criminal offences committed in the Federal Republic ofGermany and in Berlin) on ... 1961 whether they wanted the extraditionof the above persons. On ... 1961 the Senator for Justice in Berlindid, in fact, request the extradition of the Applicant for criminalproceedings, warrants for his arrest having been issued by the Courtin Berlin on ... 1961 and ... 1961 on grounds of criminal offencescommitted by him in collaboration with Y in the Federal Republic ofGermany, the Netherlands, Belgium, France, Spain, Italy andSwitzerland. The Senator for Justice in Berlin made a request at thesame time for the extradition of Y, but only on account of the criminaloffences he had committed in Berlin. In accordance with Section 39 ofthe Penal Code, this entailed asking the Netherlands, French andSpanish Governments also, through diplomatic channels, whether theydesired the extradition of Y. The French did, in fact, make a formalrequest on ... 1961 and ... 1962 for the extradition, not only of Y butalso of the Applicant. Finally, the Spanish Government, having firstof all requested the extradition of Y asked in ... 1962 that theApplicant be extradited first to France and not to Berlin, since hecould not subsequently be extradited from there to France on accountof his German nationality.Despite the individual time-limits set for the submission by theGovernments concerned of requests for extradition, delays occurredowing to the fact that a number of requests were received late whileothers were not at first presented in the proper form. Further delayswere caused because the documents transmitted with the requests hadfirst to be translated.Finally, requests had been filed by three Governments for theApplicant's extradition, partly on grounds of the same offences. Theserequests could not be dealt with individually, but had to be examinedconjointly so that it could be decided which request should be givenpriority - in other words to which Government the Applicant was to behanded over first - and whether and how far his subsequent extraditionby that Government to the others was permissible. Furthermore thedecisions regarding the Applicant's and Y's extradition had to be takenjointly, it being necessary, owing to their complicity, to secure aconfrontation of the two accused. Finally, authorization had to beobtained from the transit countries for the extradition of the accusedto France and/or Spain through their territory.Not until ... 1963 was it known definitely which of the Governmentsconcerned desired the extradition of the Applicant. In order tofacilitate extradition proceedings, the Federal Ministry of Justice on... 1963 instructed the Regional Court of B to draw up a report on thecase, to be placed at the Court's disposal.Since investigations conducted meanwhile had confirmed suspicionregarding further offences committed by the Applicant in other States,the Federal Ministry of Justice asked the Swiss and Belgian Governmentsthrough diplomatic channels on ... 1962 whether they wanted theextradition of the Applicant and Y; these States, however, replied inthe negative. Consequently, it was not until ... 1963, after variousquestions concerning the said extradition requests had been cleared upand the Judge's Council (Ratskammer) of the Regional Court of B hadsubmitted its report on ... 1963 in accordance with Section 59 of theCode of Criminal Procedure, that the Court of Appeal of B was able totake a joint decision concerning all the requests. The Court gavepriority to the French Government's request and authorised theApplicant's and Y's extradition to France first, subject to thatcountry's consent to their eventual extradition to Spain and Berlin.In its decision, the Court took account, in particular, of the FrenchGovernment's statements and the advisability of the Applicant and Ybeing jointly tried by - in succession - the competent French, Spanishand German Courts for the offences committed jointly by them. TheApplicant and Y were accordingly handed over to the Swiss authoritieson ... 1963 for their transfer to France.In November and December 1962 the Applicant complained to the Ministryof Justice and to Parliament alleging an undue delay in the extraditionproceedings, but apparently never received a reply. On ... 1963 helodged a formal complaint (Dienstaufsichtsbeschwerde) with the Courtof Appeal (Oberlandesgericht) of B, which was rejected on ... 1963 ina 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 abovedecision of ... 1963 by the Court of Appeal. He was, however, refuseda copy of the decision.Whereas the Applicant alleges violations of the following Articles ofthe Convention:- Article 5, paragraph (1) (c) and (f), in that as from ... 1962 he isdetained without a court decision to that effect;- Article 5, paragraph (3), in that the question of his extradition wasnot decided within a reasonable time;- Article 6, paragraph (3) (c), in that in spite of his request he wasnot 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 withfurther convictions in Germany, France and Spain, will be out ofproportion to the crimes committed, in particular, in view of his youngage 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 detentionpending extradition shall be taken into account for the purposes of thecalculation of the sentence to be given by a French court.THE LAWWhereas, 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, itis to be observed that, under Article 26 (Art. 26) of the Conventionthe Commission may only deal with a matter after all domestic remedieshave been exhausted according to the generally recognised rules ofinternational law; whereas, under Article 113 of the Code of CriminalProcedure, the Applicant could have appealed to the Judge's Council ofthe Regional Court of B against any decision rejecting his request fora release; whereas, furthermore, under Article 114 of the same Code hecould have lodged a further appeal with the Court of Appeal of Bagainst a decision of the Judge's Council; and whereas the Applicantfailed to avail himself of any of these remedies; whereas thedisciplinary complaint (Dienstaufsichtsbeschwerde) lodged by theApplicant on ... 1963 cannot be considered to constitute an appealwithin the meaning of these provisions of the Code of CriminalProcedure; whereas, therefore, he has not exhausted the remediesavailable to him under Austrian law; whereas, moreover, an examinationof the case as it has been submitted, including an examination made exofficio, does not disclose the existence of any special circumstanceswhich might have absolved the Applicant, according to the generallyrecognised rules of international law, from exhausting the domesticremedies at his disposal; whereas, in particular, the Applicant'signorance of the existence of these remedies does not constitute anysuch special circumstance; whereas, in this respect the Commissionrefers 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 domesticremedies laid down in Article 26 has not been complied with by theApplicant; whereas it follows that this part of the Application mustbe 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 twoparagraphs guarantee certain procedural rights to "everyone chargedwith a criminal offence"; whereas the Applicant, during the proceedingsbefore the Regional Court of B and the Court of Appeal of B concerninghis extradition, had already been convicted of the crimes which hecommitted on Austrian territory and had already served the sentenceimposed upon him in respect of these crimes; whereas, in accordancewith Article 59 of the Code of Criminal Procedure, the Courts werecalled upon to decide only the question whether or not the Applicantshould be extradited to one or more foreign countries and, if so, towhich of the countries which had requested his extradition; whereas,accordingly, during the proceedings before the Austrian Courts, theApplicant was not "charged with a criminal offence" within the meaningof 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 ofCriminal Procedure; whereas, consequently, this part of the Applicationis incompatible with the provisions of the Convention and must berejected in accordance with Article 27, paragraph (2) (Art. 27-2) ofthe 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 toeveryone whose rights and freedoms as set forth in the Convention areviolated"; whereas the Commission has held above that none of therights and freedoms set forth in the Convention have been violated inthe Applicant's case; whereas, therefore, Article 13 (Art. 13) has noapplication in the circumstances of the present case; whereas in thisrespect the Commission refers to its decisions on the admissibility ofApplications Numbers 472/59 (W. v. the Federal Republic of Germany -Yearbook III, page 206) and 912/60 (W. v. Sweden); whereas it followsthat this part of the Application is manifestly ill-founded and mustbe rejected in accordance with Article 27, paragraph (2) (Art. 27-2)of the Convention;Now therefore the Commission declares this application INADMISSIBLE.[/align]