European Court of Human Rights

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45097/04
by Carlo PARLANTI
against Germany

The European Court of Human Rights (Third Section), sitting on 26 May 2005 as a Chamber composed of:

         Mr     B.M. Zupančič, President,

         Mr     J. Hedigan,
         Mr     L. Caflisch,
         Mr     C. Bîrsan,
         Ms     R. Jaeger,
         Mr     E. Myjer,
         Mr     David Thór Björgvinsson, judges,
and    Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 20 December 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Carlo Parlanti, is an Italian national who was born in 1964, and is currently detained in prison in Düsseldorf. He was represented before the Court by Mr C. G. Bulgheroni, a lawyer practising in Milan.

A.  The circumstances of the case

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

On 6 August 2002 the Ventura County Superior Court (California) issued an international warrant for the arrest of the applicant on suspicion of having committed the offences of forcible rape, corporal injury to a co-habitant, and false imprisonment by violence, as defined in sections 261(a)(2), 273.5(a) and 236 of the California Penal Code and punishable by respectively eight, six and three years' imprisonment. An investigation by the County Sheriff's Department had revealed in particular that on 29 June 2002 the applicant drank two litres of wine, became violent with his live-in girlfriend, kicked her chest fracturing her ribs before dragging her to the bedroom, where he bound her wrists to her ankles with plastic straps and raped her. A short time later he removed the straps and raped her again.

On 5 July 2004 the applicant was arrested at the Düsseldorf airport. On 6 July 2004 he was heard before the Düsseldorf District Court (Amtsgericht) and remanded in custody pending extradition proceedings.

On 19 July 2004 the Washington Bureau of Interpol requested the applicant's provisional arrest. On 23 July 2004 the Düsseldorf Court of Appeal (Oberlandesgericht) ordered the applicant's detention pending a ruling on his extradition.

 On 27 August 2004 the Government of the United States of America requested the applicant's extradition under the terms of the Extradition Treaty between the United States and the Federal Republic of Germany of 20 June 1978.

The Düsseldorf Court of Appeal ordered the applicant's continued detention with a view to extradition on 2 September 2004.

At a hearing held on 4 October 2004 before the Düsseldorf District Court, the applicant, assisted by a German and an Italian lawyer, indicated his refusal to be extradited.

On 26 October 2004 the Düsseldorf Court of Appeal declared the applicant's extradition admissible. It considered that the evidence furnished in support of the request for the applicant's extradition was sufficient to give rise to a reasonable suspicion and that in the absence of any exceptional circumstances it was not necessary to examine this question more in depth. The Court of Appeal held that it was not for it to determine the question of the applicant's guilt in respect of the charges brought against him in the United States, but only to examine whether the formal extradition requirements had been fulfilled. It noted that the applicant was charged with offences which were punishable under the laws of both Contracting Parties by deprivation of liberty for a maximum period exceeding one year. The Court of Appeal did not consider it necessary to take into account the applicant's allegation that, if extradited to the United States, there was a serious likelihood that he would be given a life sentence, since, according to the relevant provisions of the California Penal Code accompanying the extradition request, the maximum sentence possible did not exceed eight years' imprisonment.

The applicant applied for judicial review on 29 October 2004.

On 24 November 2004 the Düsseldorf Court of Appeal confirmed its previous decision. It found that the applicant's extradition was admissible, even if, at worst, the charges brought against him would be qualified as two offences of rape with the aggravated circumstances of tying a person up and inflicting corporal injury and the applicant be sentenced to life imprisonment pursuant to section 667.61(a), (c)(1), (e)(3) and (6) of the California State Penal Code. According to the Court of Appeal, an extradition could only be objected to, if a life sentence as such would be contrary to the rule of law and inadequate under all possible aspects. Rape under section 667.61 (e)(3) and (6) of the California State Penal Code constituted severe wrongdoing and was punishable in Germany by five to fifteen years' imprisonment, pursuant to section 177 § 4 no. 2 (a) of the German Penal Code. Moreover, a life sentence did not mean that the applicant would have no possibility of early release. Under section 667.61(a) and (j) of the California State Penal Code a convicted person was eligible for release on parole after having served 25 years' imprisonment. This period could be reduced by 15 % on account of good conduct.

The applicant requested again that the warrant of arrest pending extradition be set aside and his extradition declared inadmissible on 3 January 2005.

On 26 January 2005 the Düsseldorf Court of Appeal refused to reverse its decision of 24 November 2004. It noted that the warrant of arrest issued by the Ventura County Superior Court on 6 August 2002 and the indictment of the same day charged the applicant with one count of forcible rape, pursuant to Section 261(a)(2) of the California State Penal Code (maximum possible sentence up to eight years' imprisonment). According to the Court of Appeal, it could not be inferred from these charges that there would be a sufficient legal basis for imposing two life sentences. The investigations carried out in the United States gave no reason to assume that the applicant had inflicted bodily injury “in the commission” of the sexual offences, as required by Section 667.61 (e) (3) of the California State Penal Code. Furthermore, in respect of the second sexual offence, no aggravating circumstance had been established, since the victim had not any longer been tied up. The Court of Appeal concluded that no substantial grounds had been shown for believing that the applicant, if extradited, would be exposed, as alleged, to two consecutive life sentences, amounting to 42 years' and six months' imprisonment.

On 8 March 2005 the Federal Constitutional Court refused to admit the applicant's constitutional complaint for adjudication.

B.  Relevant domestic and American law

Article 14.3a of the Extradition Treaty between Germany and the United States of America of 20 June 1978 as amended on 21 October 1986 allows the verification of the facts on which the extradition claim is based, the ordinary courts are, however, not obliged to make use of this possibility.

Section 10 § 2 of the German Law on International Judicial Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen) provides that, if exceptional circumstances require to examine the question of the existence of a reasonable suspicion, facts must be furnished which are sufficient to support the conclusion that there was a reasonable suspicion that an offence has been committed.

The relevant provisions of the Penal Code of California provide as follows:

Section 236

“False imprisonment is the unlawful violation of the personal liberty of another.”

Section 237. (a)

“False imprisonment is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail for not more than one year, or by both that fine and imprisonment. If the false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison.”

Section 261. (a)

“Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

...

  (2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.”

Section 273.5. (a)

“Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.”

Section 667.61

“(a) A person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years except as provided in subdivision (j).

 (b) Except as provided in subdivision (a), a person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years except as provided in subdivision (j).

(c) This section shall apply to any of the following offenses:

  (1) A violation of paragraph (2) of subdivision (a) of Section 261.

...

e) The following circumstances shall apply to the offenses specified in subdivision (c):

  ...

(3) The defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section ... 12022.53.8.

...

(6) The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense.

  (j) Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the minimum term of 25 years in the state prison imposed pursuant to subdivision (a) or 15 years in the state prison imposed pursuant to subdivision (b). However, in no case shall the minimum term of 25 or 15 years be reduced by more than 15 percent for credits granted pursuant to Section 2933, 4019, or any other law providing for conduct credit reduction. In no case shall any person who is punished under this section be released on parole prior to serving at least 85 percent of the minimum term of 25 or 15 years in the state prison.”

Section 12022.53

“(a) This section applies to the following felonies:

...

(8) Section 261 or 262 (rape).”

COMPLAINTS

The applicant complained about the court decisions authorising his extradition to the United States of America.

He complained in particular under Article 5 § 1 (c) of the Convention that his detention pending his extradition was unlawful. According to him, there was no reasonable suspicion that he had committed the offences with which he was charged by the American authorities and the evidence submitted by them was manifestly inadequate.

The applicant further complained under Article 5 § 2 that he was informed of the extradition request and the charges brought against him solely in German and English although he did not know German. The decisions of the Düsseldorf Court of Appeal of 2 September and 26 October 2004 had not been translated into Italian.

Invoking Article 5 § 3 the applicant complained that he was heard by a judge for the first time on 4 October 2004 and that during four months he could not defend himself.

The applicant complained under Article 5 § 4 of the Convention that the Düsseldorf Court of Appeal did not decide speedily on the lawfulness of his detention and that he was not able to argue his case for his release.

Relying on Article 6 §§ 1, 2 and 3 (a), (b) and (d) of the Convention, the applicant complained furthermore that the German courts refused to grant him a fair trial. The decisions were not pronounced publicly. He was informed of the charges brought against him in Italian for the first time on 4 October 2004 before the Düsseldorf District Court without having the time necessary to prepare his defence. The Court of Appeal did not carry out an effective official investigation and refused arbitrarily the evidence proposed by him. The decision of the Court of Appeal of 26 October 2004 declaring his extradition admissible was given before his lawyer could submit observations for his defence. He was not given a translation of that decision.

The applicant also complained under Article 6 of the Convention that he would not be entitled to a fair trial in California.

The applicant complained under Article 7 § 1 of the Convention that the American authorities failed to mention the possibility of giving him a life sentence. He argued that he would be likely to have to serve a two consecutive life sentences, respectively 42 year's imprisonment, without any genuine prospect of remission or parole. Criminal proceedings were pending in Italy where he would have more procedural guarantees at his disposal and could expect a considerably more lenient sentence.

The applicant complained under Article 14 of the Convention that his extradition to the United States amounted to discrimination on grounds of nationality. He submitted that, pursuant to Article 7 of the Extradition Treaty, the German authorities were not obliged to extradite their own nationals. As an Italian citizen he was in a less favourable position than a German person.

THE LAW

 “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:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

(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 notes at the outset the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is precisely for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness (see, among many other authorities, Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, p. 1864, § 118). This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5 § 1 circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute
exceptions to a most basic guarantee of individual freedom (see, mutatis mutandis, Quinn v. France, judgment of 22 March 1995, Series A no. 311, p. 17, § 42).

As regards “reasonable suspicion”, the Court reiterates that facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (see Murray v. the United Kindom, judgment of 28 October 1994, Series A no. 300-A, p. 27, § 55), although there must be facts or information which would satisfy an objective observer that the person concerned may have committed an offence (see Labita v. Italy, judgment of 6 April 2000, Reports 200-IV, p. 139, § 155).

The Court observes, however, that in the instant case the purpose of the applicant's arrest and subsequent detention had not been to bring him before a competent legal authority within the meaning of paragraph 1 (c). His detention falls to be considered under Article 5 § 1 (f) of the Convention. This provision requires the lawfulness of the detention of “a person against whom action is being taken with a view to extradition”.

The review carried out by the Court under this provision is limited to examining whether there is a legal basis for the detention and whether the decision to place a person in detention may or may not be described as arbitrary in the light of the facts of the case (Bozano v. France, judgment of 18 December 1986, Series A no. 111, p. 25, § 59).

The Court notes that on 5 July 2004 the applicant was arrested pursuant to a warrant for his arrest issued by the Ventura County Superior Court (California) and was taken into custody pending extradition. On 26 October 2004 the Düsseldorf Court of Appeal declared the applicant's extradition admissible in application of the relevant provisions of the Law on International Mutual Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen) and the Extradition Treaty between Germany and the United States. The Court considers that in ordering the detention of the applicant with a view to his extradition, the Düsseldorf Court of Appeal was following a procedure which was in conformity with domestic legislation and gave exhaustive reasons justifying the applicant's continued detention. Consequently, the Court considers that the requirements of Article 5 § 1 (f) were met.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

The Court reiterates that Article 5 § 2 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5. By virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with Article 5 § 4. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, § 40).

The Court observes that the applicant has failed to show that he pursued any domestic remedies in respect of this complaint. However, even assuming that he has exhausted remedies, it appears from the file that he was informed of the charges brought against him in English when being arrested on 6 July 2004 and on the following day when being heard before the Düsseldorf District Court. The applicant did not contest that he understood English.

 It follows that this part of the application must likewise be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

Article 5 § 3 reads as follows:

 “Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

 Article 5 § 4 provides:

 “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Court first observes that the applicant was not in one of the situations dealt with by paragraph 1 (c) of Article 5. It reiterates that, in guaranteeing to persons arrested or detained a right to institute proceedings, Article 5 § 4 also proclaims their right, following the institution of such proceedings, to a speedy judicial decision terminating their deprivation of liberty if it proves unlawful (see Van der Leer v. the Netherlands, judgment of 21 February 1990, Series A no. 170-A, p. 14, § 35). This right must be not only theoretical or illusory but practical and effective (see R.M.D. v Switzerland, judgment of 26 September 1997, Reports 1997-VI, p. 2015, § 51).

Turning to the present case, the Court notes that the lawfulness of the applicant's detention was examined by Düsseldorf District Court within 24 hours of his arrival and re-examined on 4 October 2004 and by the Düsseldorf Court of Appeal on several occasions, namely 26 October and 24 November 2004 and again on 26 January 2005. In these circumstances the Court considers that the examination of the facts of the case does not disclose any appearance of a breach of Article 5 of the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal...

...

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

...

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

The Court recalls that decisions regarding the entry, stay and deportation of aliens do not concern the determination of the applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 of the Convention. Consequently, this provision is not applicable in the instant case (see Maaouia v. France [GC], no. 39652/98, § 40, 5 October 2000).

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

The Court reiterates that it cannot be ruled out that an issue might exceptionally be raised under Article 6 of the Convention by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of justice in the requesting country (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 45, § 113, and, mutatis mutandis, Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240, p. 34, § 110). The extradition of the applicant to the United States would therefore be likely to raise an issue under Article 6 of the Convention if there were substantial grounds for believing that he would be unable to obtain a fair trial in that country. The Court points out, however, that where extradition proceedings are concerned, an applicant is required to prove the “flagrant” nature of the denial of justice which he fears. In the instant case the applicant did not adduce any evidence to show that, having regard to the relevant American rules of penal law, there are “substantial grounds for believing” that his trial would take place in conditions that contravened Article 6.

It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

Having regard to its findings under Article 6 of the Convention, the Court considers that no issue arises under the above provision. In any event, irrespective of the question of the responsibility of a Contracting State for acts which occur outside its jurisdiction, the proceedings institutes against the applicant in the United States have not yet been terminated. The applicant has therefore not been “held guilty of any criminal offence” as set out in Article 7 § 1.

The Court considers, however, that this complaint falls to be examined under Article 3 of the Convention, which provides:

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

It is the settled case-law of the Court that extradition by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question would, if extradited, face a real risk of being subjected to treatment contrary to Article 3 in the receiving country (see Soering, cited above, p. 35, §§ 89-91). The Court recalls that matters of appropriate sentencing largely fall outside the scope of the Convention, it not being its role to decide, for example, what is the appropriate term of detention applicable to a particular offence. Nonetheless it has not excluded that an arbitrary or disproportionately lengthy sentence or the extradition of an individual to a State in which he runs the risk of being sentenced to life imprisonment without any possibility of early release might in some circumstances raise issues under Article 3 of the Convention (see, for example, Weeks v. the United Kingdom, judgment of 2 March 1987, Series A no. 114, p. 25, § 47, V. v. the United Kingdom, judgment of 16 December 1999, Reports 1999-IX, pp. 50, 151, §§ 97-101, Sawoniuk v. the United Kingdom (dec.), no. 63716/00, 29 May 2001, and Nivette v. France (dec.), no. 44190/98, ECHR 2001-VII).

In the instant case the Court notes that the request of the Government of the United States for the applicant's extradition is based on offences which are punishable by imprisonment not exceeding eight years. The severity of the punishment is thus similar to German law and practice in rape cases. The applicant maintained that he would be liable to serve a life sentence without any possibility of early release. However, he provided no evidence to support that assertion. Even if the facts of the case were to change in the future and could amount to special circumstances making it legally possible for a life sentence to be imposed, it follows from the criminal-law provisions that apply in California that the applicant would not be without any possibility of early release.

In the light of the material submitted by the applicant, the Court considers that the applicant's alleged punishment would not attain the necessary degree of seriousness so as to fall within the scope of Article 3 of the Convention.

Consequently, this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

Article 14 provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as ... national ... origin...”

The Court has consistently held that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. This provision 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, Camp and Bourimi v. the Netherlands, judgment of 3 October 2000, ECHR 2000-X, pp. 129, 130 §34, and Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports 1997-I, p. 184, § 33).

The applicant was essentially complaining that, unlike German citizens, he was facing his extradition to the United States. However, no right not to be extradited is, as such, protected by the Convention (see e.g. Soering, cited above, p. 33, § 85, and Maaouia, cited above, p. 314, § 40). Article 14 cannot therefore be relied on.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger                                                            Boštjan M. Zupančič
       Registrar                                                                              President