BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF SMITH v. GERMANY
(Application
no. 27801/05)
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 Smith 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. 27801/05) 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
Hendrik Smith (“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 Groningen.
- On
27 July 2001 the Ahrensburg District Court (Amtsgericht)
issued a warrant for the applicant's arrest.
- On
30 January 2002 the applicant was arrested in Germany and remanded in
custody at Oldenburg Prison.
- On
22 May 2002 the Lübeck Public Prosecutor issued an indictment
against the applicant on several counts of trafficking and importing
narcotic substances (cannabis and marihuana).
- On
20 June 2002 the Lübeck Regional Court (Landgericht)
opened the applicant's trial.
- On
22 July 2002 the Schleswig-Holstein Court of Appeal quashed the
arrest warrant for failure to comply with the obligation to expedite
criminal proceedings where an applicant is in detention pending
trial. Following his release from detention, the applicant returned
to the Netherlands.
- 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 returned to Germany for his trial and confessed to the
alleged crimes.
- During
the oral hearing before the Lübeck Regional Court, which took
place on 16 September 2002, the applicant, who had voluntarily
returned from the Netherlands, gave a full confession. The Public
Prosecutor gave the following statement, as recorded in the
transcript of the hearing:
“In this case the current view is that there are
no objections to the transfer of the defendant to the Netherlands
under the Transfer Convention of 21 March 1983 or against the
application of Article 11 of the Transfer Convention.”
- Following
the hearing, the Lübeck Regional Court, on the basis of the
applicant's confession, convicted him on twenty-six counts of
unlawful importing and unlawful trafficking of narcotic substances,
and sentenced him to three and a half years' imprisonment.
- The
court accepted as mitigating factors the applicant's confession and
the fact that he had voluntarily returned from the Netherlands in
order to stand trial. It considered that the oral hearing could
probably not have taken place without his cooperation. The applicant
having waived his right to appeal, the judgment became final on 16
September 2002.
- Following
the hearing, the applicant returned to the Netherlands.
- On
17 September 2002 the applicant applied to the
Schleswig-Holstein
Ministry of Justice for the institution of 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 of the Lübeck Regional Court, and the
Public Prosecutor's Office at the Lübeck Regional Court.
- On
7 October 2002 the Ministry of Justice forwarded the application to
the Head of the Chief Public Prosecutors (Leitender
Oberstaatsanwalt) in Lübeck with a request for him to
submit a report.
- On
22 November 2002 the Head of the Chief Public Prosecutors stated
that, as a general rule, execution of sentence in the home country
was not an option in such serious cases of drug trafficking. However,
the special circumstances of this particular case justified lodging
an application for execution assistance with the Dutch Justice
Ministry.
- On
19 December 2002 the Schleswig Holstein Justice Ministry wrote to the
Dutch Justice Ministry enquiring whether it would be possible for it
to continue the execution of the German sentence directly under
Article 8 § 1 (a) of the Convention between the Member States of
the European Communities on the Enforcement of Foreign Criminal
Sentences of 13 November 1991 (“the EC Convention on
Enforcement” – see International Treaties below). The
German Ministry expressed the opinion that the Transfer Convention
was not applicable, as the applicant was not in German custody.
-
On 17 March 2003 the Dutch Justice Ministry declared that in
principle there was a willingness to allow the sentence to be
executed in the Netherlands. However, in the Netherlands continued
enforcement was allowed only in exceptional circumstances, which did
not apply in the present case. The Dutch Ministry therefore requested
its German counterpart to approve the conversion of the prison term
imposed on the applicant, under Article 8 § 1 (b) of the EC
Convention on Enforcement.
- On
24 April 2003 the German Ministry requested the Head of the Chief
Public Prosecutors to state his position. By a letter dated 1 July
2003 the Head of the Chief Public Prosecutors stated that he was
opposed to a formal application for execution assistance because the
Netherlands would make the execution dependent on a conversion of the
sentence.
- On
21 July 2003 the Ministry of Justice informed the applicant that it
would refrain from lodging a formal application with the Netherlands.
-
In September 2003 the applicant was summoned to serve his sentence.
His requests for the suspension of the execution of his sentence
until a final decision on his transfer request was given were
unsuccessful.
- On
18 January 2004 the applicant lodged a constitutional complaint
against the Ministry's decision not to institute transfer proceedings
under Article 11 of the Transfer Convention.
- On
10 February 2004 an arrest warrant was issued against the applicant
as he had failed to start serving his sentence.
- On
14 January 2005 the Federal Constitutional Court, sitting as a panel
of three judges, declined to consider a constitutional complaint
lodged by the applicant. 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
with 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 lodged a fresh request with the
Justice Ministry that execution of his sentence be taken over under
Article 11 of the Transfer Convention.
- A
warrant is still out against the applicant for having failed to start
serving 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 this 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, that 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. INTERNATIONAL TREATIES
1. 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 insofar 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.”
2. The Convention between the Member States of the European
Communities on the Enforcement of Foreign Criminal Sentences of 13
November 1991
Article 8
Determination of the custodial penalty
“1. Where the transfer or enforcement of a
custodial penalty is accepted, the competent authorities of the
administering State shall:
(a) enforce the penalty imposed in the sentencing State
immediately or through a court or administrative order ...
or
(b) through a judicial or administrative procedure
convert the sentence into a decision of the administering State,
thereby substituting the penalty imposed in the sentencing State by a
penalty laid down by the law of the administering State for the same
offence...”
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 16
September 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 the 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 16 September 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 objections to the transfer of the applicant
to the Netherlands. It was only in view of this reassurance that the
applicant returned to Germany in order to stand trial and gave a full
confession leading to his criminal conviction. 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. Finally, the Court notes that according
to the express statement of the Lübeck Regional Court the oral
hearing – and consequently the applicant's conviction –
would probably not have been possible without the applicant's
cooperation.
- 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 16 September
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 agreed to appear before the German criminal court 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 about the 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 16
September 2002, as he had waived his right to appeal in view of the
assurance given.
- He
further pointed out that in parallel proceedings (see Buijen v.
Germany, no. 27804/05) the applicant's legal counsel had
unsuccessfully lodged an application for judicial review under
Section 23 of the Introductory Act to the Courts Act. Having regard
to the fact that the domestic courts had declared the application in
the above-mentioned proceedings inadmissible, there was no reason to
lodge a similar application in the instant proceedings. He was now
barred from seeking judicial review.
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
16 September 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 Lübeck Public Prosecutor. However,
the applicant had failed to have either the decision of the Public
Prosecutor or the decision of the Ministry reviewed by the lower
courts but, in respect of the decision of the Ministry, had applied
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 in the Buijen
case the applicant lodged a request for review with the civil
courts 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
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.
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
