Last Updated: Thursday, 27 November 2014, 13:39 GMT

Cemal Kemal Altun v. Germany

Publisher Council of Europe: European Commission on Human Rights
Publication Date 12 March 1984
Cite as Cemal Kemal Altun v. Germany, Council of Europe: European Commission on Human Rights, 12 March 1984, available at: http://www.refworld.org/docid/3ae6b6f7c.html [accessed 27 November 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

The facts of the case may be summarised as follows:

1.         The applicant, a Turkish national born in Samsum on 13 April 1960, is at present detained in the Moabit prison in Berlin pending extradition to Turkey. He is represented by Mr Wolfgang Wieland, barrister practising in Berlin.

2.         The applicant was living in Ankara from 1974 where he attended a secondary school until 1978. In 1978 and 1979 he was enrolled as a student in the faculty of political science in that city. To finance his studies the applicant also worked for the Ministry of Forests and Waterways and in a branch of the Köy-Koop, a cooperative society in Ankara. As a child the applicant was partly brought up by his elder brother Ahmat Altun, after the death of their father. In 1977 his brother was elected to Parliament to represent the Samsum constituency. He was a member of the Popular Republican Party and President of the Köy-Koop. He is now living in France, where has the status of a political refugee.

The applicant, too, took an active interest in politics which began during his brother's electoral campaign. Together with others, he founded in 1978 the "Ankara Liseli Devrimci Genclik Dernegi" (Association of Revolutionary Secondary Students). His membership of this organisation ended automatically when he enrolled at the university. After a boycott of lectures, the Association was prohibited in March 1979. The applicant joined a students' association and the association for the unity and solidarity of civil servants. He was also a member of the DEV-GENC Federation which had existed since 1970, but was prohibited by the Demirel government. At the beginning of 1980 proceedings were instituted against the applicant because he was a founder-member of the Association of Revolutionary Secondary Students. He then decided to leave Turkey. Passing through Rumania, Bulgaria, Hungary and Czechoslovakia, he reached the German Democratic Republic. On 10 January 1981, he took the underground from East Berlin to West Berlin without a visa, where he was met by his sister, Sultan Dursun (née Altun).

3.         On 7 September 1981 the applicant lodged an application for political asylum with the Berlin Chief of Police (Polizeipräsident); so far no decision has yet been taken on this application. On 5 April 1982 the applicant applied to the chief of Police to issue him with an alien's passport.

By a message dated 28 June 1982 the Ankara Interpol requested the German authorities to place the applicant in detention pending extradition. The applicant was wanted at the time for incitement to murder the Minister of Customs in May 1980. The German authorities were told that the Turkish Ministry of Justice would later be sending a request for extradition, in accordance with Article 16, para. 4 of the European Convention on Extradition.

The applicant was arrested on 5 July 1982. On the same day he was brought before the permanent judge of the Tiergarten District Court (Amtsgericht). On 6 July 1982 the prosecuting authorities applied to the Berlin Court of Appeal (Kammergericht) to place the applicant in provisional detention pending extradition and the Court of Appeal complied with this request on 22 July 1982.

4.         In a memorandum dated 19 July 1982, the Turkish Embassy sent an application for extradition based exclusively on charges of harbouring criminals and suppression of evidence in connection with the murder of the Minister for Customs on 27 1980 in Ankara.

On 9 September 1982 the Court of Appeal decided to place the applicant in detention pending extradition. By its decisions of 8 November 1982, 16 December 1982, 10 February and 11 April 1983 the Court prolonged this detention.

On 16 December 1982 the Court of Appeal authorised the applicant's extradition to Turkey. It held that the extradition request complied with the requirements of the European Convention on Extradition. The applicant was accused of concealing the murderer of the Minister of Customs, Gün Sazak, and keeping the weapon used in the crime, which amounted in German law to the offences of interfering with the course of criminal justice (Strafvereitelung, Article 258 of the German Criminal Code) and harbouring criminals; and in Turkish law of suppressing evidence (Article 296 of the Turkish Criminal Code). The Court found that there was no obstacle to extradition. It held that in the circumstances it was not a political offence and that the applicant had not established that the charge brought by the Turkish authorities was merely a pretext to ensure the applicant's return for political reasons. Nor did the fact that the applicant had requested political asylum, on which no decision had yet been taken, constitute an obstacle to extradition.

The applicant lodged a constitutional appeal against the Court of Appeal's decision. On 1 February 1983 three judges of the Federal Constitutional Court rejected this appeal on the grounds that it was in part inadmissible and that the remainder did not have sufficient chances of success.

5.         The Government of the Federal Republic of Germany granted the applicant's extradition and informed the Turkish Embassy accordingly in a memorandum dated 21 February 1983. In this document the Government noted that, according to the documents produced by the Turkish authorities, the extradition request was based exclusively on offences which did not carry the death penalty in Turkish law. Referring to an exchange of notes in December 1981 on the interpretation of the European Convention on Extradition by the Turkish Government, the Government of the Federal Republic of Germany noted that the imposition of the death penalty on the applicant was excluded.

The applicant brought a constitutional appeal against this decision by the Federal Government. On 16 March 1983 three judges of the Federal Constitutional Court dismissed the appeal on the ground that it did not have a sufficient chances of success. The Court held that it could leave open the question of the admissibility of the appeal, as it found no violation of the applicant's fundamental rights in this case, in particular those laid down in Article 16, para. 2 of the Basic Law ("No German shall be extradited abroad. Persons being persecuted on political grounds shall be entitled to asylum"). The Court further held that the question whether the person to be extradited ran the risk of political persecution must be examined on the merits by the Court of Appeal, which decides whether extradition should be authorized. The applicant's constitutional appeal against the Court of Appeal's decision had been dismissed on the ground that the Federal Constitutional Court was not competent to examine the decisions of Berlin courts and authorities. The Constitutional Court considered, therefore, that it was not necessary to decide the question whether, going beyond the Court of Appeal's decision, it was required, on a constitutional appeal against the Federal Government's decision to extradite, to reconsider the merits of the grounds put forward by the applicant relating to his right of asylum. In fact, quite apart from the legal questions to be decided by the Court of Appeal, the Federal Government has a wide discretion in matters of foreign policy. Furthermore the Federal Government had satisfied itself that the applicant would not run the risk of capital punishment if extradited to Turkey. Finally, and subject to what was stated above with regard to the jurisdiction of the Federal Constitutional Court, the Court considered that there were no serious grounds for doubting that sufficient account had been taken of the fears of political persecution.

6.         On 19 March 1983 the applicant requested the Court of Appeal to make a new decision on the extradition order and to suspend the execution thereof.

On 22 March 1983 the applicant was heard for the first time by the Office for the Recognition of Foreign Refugees in the proceedings on his request for political asylum.

On 11 April 1983 the Court of Appeal decided to prolong the applicant's detention pending extradition.

The applicant's complaints may be summarised as follows:

7.         The applicant alleges that if extradited to Turkey he will be subjected to torture and other ill-treatment. He invokes Article 3 of the Convention. He states that during police investigations and in Turkish prisons torture is systematically applied. He runs the risk of being subjected to torture on account of his political activities and in order to extort information about the murder of the Minister, Mr Sazak.

The applicant also alleges a violation of Article 13 of the Convention. He considers that he did not have an effective remedy before a national authority. The Berlin Court of Appeal had not examined his arguments with sufficient care and he was unable to appeal to the Federal Constitutional Court against decisions of any Berlin court.

PROCEEDINGS BEFORE THE COMMISSION

8.         The application dated 12 March 1983 was received on 14 March in the Commission's Secretariat and Was registered on the same day.

On 15 March 1983 the Secretary informed the respondent Government of the introduction of the application and of its object, in accordance with Rule 41 of the Commission's Rules of Procedure.

On 17 March 1983 the President of the Commission indicated to the respondent Government, in accordance with Rule 36 of the Rules of Procedure, that it appeared to him desirable, in the interests of the parties and the normal conduct of the proceedings before the Commission, to suspend the applicant's extradition to Turkey until the Commission had been able to examine the application at its forthcoming session, commencing on 2 May 1983.

On 18 March 1983 the respondent Government sent a telex message requesting the Commission to hold an emergency session.

On 21 March 1983 the President had a conversation with the Government's agent. The latter filed a memorial dated 17 March 1983 in which were set out the grounds for the request to convene an emergency session. On the same day the President decided to communicate the application to the Government, in accordance with Rule 42, para. 2.b and Rule 28, para. 3 of the Rules of Procedure.

On 22 March 1983 the President, acting in accordance with Rule 28, para. 3 of the Rules of Procedure, decided:

-           to give the application priority under Rule 27 (in fine) of the Rules of Procedure;

-           not to grant the application for an emergency session;

-           to fix a hearing of the parties on the admissibility and merits of the application for 2 May 1983;

-           to maintain his order of 17 March 1983;

-           to inform the applicant, in accordance with Rule 36 of the Rules of Procedure, that it was desirable in the interests of the parties and the normal conduct of the proceedings that, if he was released, he should remain at the disposal of the German authorities pending the decision which the Commission might make at its session commencing 2 May 1983.

This order was sent to the Government and the applicant on 23 and 24 March 1983 respectively.

On 25 March 1983 the Secretary of the Commission received a memorial from the applicant, dated 21 March 1983, in which he expanded his application.

On 2 May 1983 the Commission held a hearing on the admissibility and merits of the application at which the parties were represented as follows:

For the Government:

-           Mrs Irene MAIER, Ministerialdirigentin, Federal Ministry of Justice, Agent:

-           Dr Erich CORVES, Ministerialdirigent, Federal Ministry of Justice, Adviser;

-           Mr Peter HUGLER, Regierungsdirektor, Federal Office for the Recognition of Foreign Refugees, Adviser.

For the applicant:

-           Mr Wolfgang WIELAND, Barrister practising in Berlin, assisted by:

-           Mr Saraffettin KAYA, Barrister practising in Kiel, and

-           Mr Nazim ALFATLI, interpreter.

The report prescribed by Rule 40 of the Rules of Procedure was submitted by the Rapporteur after the hearing. After deliberating on 2 and 3 May 1983, the Commission reached the following decision.

SUBMISSIONS OF THE PARTIES

The Government's submissions may be summarised as follows:

9.         On the question of exhaustion of domestic remedies, the Government points out that the applicant requested the Berlin Court of Appeal to make a new decision on the extradition order. Although the applicant was of the opinion that this new request should be considered an appeal in law, and thus a remedy which he was not obliged to exercise in order to satisfy the requirement of the exhaustion of domestic remedies, the Government considered that if an application of this type was filed before an application was lodged with the Commission and no decision had yet been given thereon, the application to the Commission was inadmissible. However, as it also considered that this new application was itself inadmissible, the Government would not raise the objection of inadmissibility based on the failure to exhaust domestic remedies.

With regard to the complaint based on Article 3 of the Convention, the applicant could only be prosecuted in Turkey for the offences for which extradition had been granted (Article 296 of the Turkish Criminal Code). The fact that the request for extradition was more limited that the previous request received through Interpol did not justify the conclusion that the request was not sincere. Such changes in the definition of an offence were not unusual and depended on the legal It ion in the states concerned. The felony of which the applicant was accused was not a political felony, within the meaning of the German Extradition Act and the European Convention on Extradition.

On the question of Turkey's respecting the principle of speciality as regards the extradition, the Government submitted the following comments: since 1980 it had extradited 23 persons to Turkey. In the case of Levent Begen, the Turkish authorities commenced investigations which were not completely covered by the German extradition order, e.g. the rule requiring the speciality of the extradition (cf. Article 14 of the European Convention on Extradition) had been infringed. It was only after strongly worded and repeated protests by the German authorities that the Turkish Government stated on 20 August 1982 that all proceedings not covered by the authority to extradite had been terminated, and this was confirmed by the lawyer defending the person concerned. However, by a judgment of 24 November 1982 the military court of cassation set aside the first instance judgment (which complied with the speciality rule) and sent the case back to the court for retrial. At the same time, the court of cassation expressed the opinion that a sentence relating to more extensive facts could have been passed. The Turkish Ministry of Foreign Affairs, however, informed the Embassy of the Federal Republic of Germany on 27 January 1983 that this judgment of the Military Court of Cassation was not binding on the court of first instance. It could not therefore be said that the Turkish courts had not respected the speciality rule as regards extradition in that case. Since then there had been no evidence suggesting that Turkey could not respect the rule.

In the case of requests for extradition for offences carrying a sentence of imprisonment in the Turkish law and not subject to the death penalty, the exchange of notes between the German and Turkish Governments of December 1981 is applied in cases where a redefinition of the offence might lead to the imposition of capital punishment. These notes related to the interpretation of Article 14, para. 3, of the European Convention on Extradition by the Turkish Government, which has confirmed that a death sentence cannot be passed on a person extradited for an offence which does not carry the death penalty. It follows that the offence specified in the request for extradition is decisive. In every case of extradition the Government of the Federal Republic of Germany refers to this exchange of notes. It has not found any trace of a case where the person extradited for an offence not carrying the death penalty has been sentenced to death in Turkey.

The applicant has not adequately shown that he ran a risk of being tortured if extradited. It is not true that the Turkish authorities have admitted that torture was systematically applied during criminal investigations. It is true that the present Turkish Government has not denied that human rights have been violated in certain cases in Turkey. On 15 March 1982 a Minister, Mr Oztrak, said in public that 15 people had died as a result of torture. A number of police officers have already been convicted of this offence. Under an order of the Supreme Military Court, evidence based solely on an interrogation conducted by the General Directorate of Public Security (which is part of the police) cannot be used against an accused. The known cases of torture relate almost exclusively to persons detained in police and not in military or civil detention centres. Under Turkish law, if extradited, the applicant would be placed in one of these centres. Finally the respondent Government pointed out that, in spite of the difficult situation, the Turkish Government had taken measures to abolish torture.

Moreover, the applicant had not been engaged in political activities of any importance. What he had done as a student no longer exposed him to any danger. He had never taken part in terrorist actions and had never been arrested or detained in Turkey. He had left his country with a valid passport. After his arrival in West Berlin he had had his passport extended by the Turkish Consulate and had only made his request for political asylum nine months after his arrival.

Finally the Government denied that foreign information services are informed of the contents of requests for political asylum.

It concluded that the applicant had not shown that there were serious reasons to believe that he would be subjected to treatment prohibited by Article 3 of the Convention.

The applicant's submissions may be summarised as follows:

10.        He first refers to the role played by the German authorities in connection with the request for extradition. In his application for political asylum he alleged that the Turkish authorities were wrongly accusing him of being involved in the political murder of the Minister, Mr Sazak. This information had been sent by the Immigration Department to the State Security Division of the Berlin police which in turn sent it to the Federal Criminal Investigation Department (Bundeskriminalamt), which then sent it, with the agreement of the Federal Minister of Justice, to Interpol Ankara. The Turkish Government thereupon submitted its request for extradition.

Torture was used systematically in Turkish police investigations and in Turkish prisons, as had been confirmed by several German administrative courts, in particular the Administrative Court of Appeal of Bade-Württemberg, which stated in a decision of 27 May 1982 that torture was applied generally throughout Turkey. German lawyers are not in a position to keep in touch with what is happening to their extradited clients, for example the case of Levent Begen who was extradited in June 1980. Numerous requests for information from his German lawyer addressed to the German authorities had received no satisfactory reply. It was not until March1983 that the complete address of the Turkish lawyer was received. The German lawyer had never had an opportunity to see his client or receive information about him. When a delegation of German lawyers visited Turkey in January 1982 a judge had an opportunity of speaking with a Turkish lawyer who had given him a copy of the new indictment filed against Begen; according to this lawyer Begen had admitted the new offences with which he was charged under torture. The systematic use of torture was also confirmed by several foreign delegations during the years 1981 and 1982.

The applicant belonged to progressive organisations. On returning to Turkey he risked being subjected to torture with a view to extorting from him information about the murder of the Minister, Mr Sazak. Political colleagues, with whom he had shared a leading role in the "Ankara Liseli Devrimci Genclik", had been tortured during their detention, and quite recently the paper "Hürriyet", which supported the Government, had described the applicant as a "terrorist".

Finally he states that his request for political asylum had so far remained unanswered. The authorities had only begun to deal with the case at a time when he would already have been extradited if this measure had not been suspended at the last moment.

THE LAW

a.         The complaints based on Article 3 of the Convention

1.         The applicant states that in the event of extradition to Turkey he is in danger of being subjected in that country to torture and political persecution.

By extraditing him to Turkey, the Federal Republic of Germany would, he claims, be guilty of a violation of Article 3 of the Convention which provides:

''No one shall be subjected to torture or inhuman or degrading treatment or punishment".

2.         The Commission considers that the application cannot be declared inadmissible on the ground of non-exhaustion of domestic remedies (Article 26 of the Convention). The applicant, following the extradition orders of the Court of Appeal and the Government, appealed to the Federal Constitutional Court which rejected the appeals on 1 February and 16 March 1983. The Government concedes that the applicant has thus exhausted remedies.

Admittedly the applicant requested the Court of Appeal for a new decision on 10 March 1983 on the extradition order, in accordance with Section 29 (1) of the German Extradition Act, and the Court has not yet given a ruling. According to the Government it is difficult to conceive of the Commission dealing with the application for as long as these new proceedings are pending. However, the Government does not intend to raise an objection based on inadmissibility.

The Commission considers that the application brought by the applicant on 19 March 1983 is an application to have the extradition proceedings reopened and as such it does not constitute a remedy which the applicant is required to exhaust in accordance with Article 26 of the Convention (cf. mutatis mutandis, Application No. 6242/73, Yearbook 17, pp. 459, 471 and 473).

3.         The Government claimed that the application is inadmissible because it is manifestly ill-founded.

In this respect the Commission recalls firstly that extradition as such is not one of the matters covered by the Convention (cf. Application No. 7256/75, D.R. 8, p. 161). The High Contracting Parties remain as a rule free to conclude and apply extradition agreements and conventions. Increased co-operation as regards mutual assistance in legal matters is an area where Council of Europe activity has been fruitful.

The Commission is not required to ensure the correct application of extradition law; its function is solely to ensure observance of the engagements resulting from ratification by a State of the European Convention on Human Rights (Article 19).

4.         The applicant alleges, inter alia, that his extradition to Turkey would not be accompanied by proper guarantees to ensure that the speciality rule would be complied with by that State.

This complaint falls outside the Commission's competence. However, according to established case-law, extradition may under certain exceptional circumstances constitute treatment prohibited by Article 3 of the Convention. This is the case, for example, where the person concerned is in danger of being subjected in the State to which he is to be extradited, to torture or any treatment contrary to Article 3 (cf. e.g. Applications No. 1802/62, Yearbook 6, p. 481, and No. 7317/75, D.R. 6, p. 141).

5.         In this respect the Commission emphasises that only the existence of an objective danger to the person to be extradited may be considered. The finding that such a danger exists does not necessarily involve the liability of the Government of the State requesting extradition. The Commission moreover has taken account, in cases of expulsion, of a danger not arising out of the authorities of the State receiving the person concerned (cf. Applications No. 7216/75, D.R. 5, p. 137; No. 8581/79 v. United Kingdom, unpublished decision of 6 March 1980).

In this context the Commission has firstly examined the applicant's allegation that he runs the risk of the death penalty in the country to which he is to be extradited. The respondent Government stated that this danger did not exist, in view of the relatively minor importance of the offences for which extradition is requested, i.e. harbouring criminals and suppression of evidence, for which the Turkish Criminal Code (Article 296) lays down a maximum sentence of five years. It also noted a memorandum from the Turkish Government dated 16 December 1981 giving a formal assurance that the death penalty is impossible in a case where extradition has been requested for an offence not carrying the death penalty.

In the light of this information, the Commission concedes that the applicant was in no danger, in the event of his extradition, of being sentenced to death.

6.         The applicant also suggested that in the event of extradition he might be tried under a procedure that did not comply with the guarantees laid down in Article 6 of the Convention. He alleged in particular that the military tribunal that would be required to try him is not an independent and impartial tribunal.

The Commission does not consider it has to verify the merits of this allegation. Indeed even supposing that it were not entirely unfounded, it would not in itself make extradition appear as an inhuman treatment.

7.         The same does not necessarily apply to the applicant's allegations concerning the political nature of the criminal proceedings instituted against him in Turkey. Admittedly - and the Commission stresses this -, the rule laid down for example in Article 3 of the European Convention on Extradition, whereby extradition may be refused for a political offence, is not included in the Convention whose compliance the Commission must ensure; the fact of granting extradition for a political offence may not be regarded in itself, and in the absence of special circumstances, as inhuman treatment within the meaning of Article 3 of the Convention. Moreover, the applicant's extradition is not requested for an offence defined as political.

8.            However, if there are reasons to fear that extradition, although requested exclusively for offences under ordinary law, may be used to prosecute the person concerned in breach of the speciality rule for political offences or even simply because of his political opinions, the Commission cannot rule out immediately the possibility of a violation of Article 3 of the Convention. It is consequently required to determine whether in this case, there is a certain risk of prosecution for political reasons which could lead to an unjustified or disproportionate sentence being passed on the applicant, and, as a result, inhuman treatment.

9.         In this respect, the Commission finds that the applicant claims to have been involved in a series of political activities in Turkey based on an ideology not shared by the Government at present in power. Furthermore, the Commission notes that the applicant is being prosecuted for an offence that has a political background, a finding that must be distinguished from the question whether it is a "political offence" or an offence that can be assimilated to a "political offence" ("connected offence") within the meaning of extradition law. In a first arrest warrant dated 18 May 1982, the applicant was charged with being the instigator of the murder of the former Minister of Customs, Mr Gün Sazak, and in a subsequent arrest warrant dated 5 July 1982, on the basis of which extradition was granted, mention was made only of the offences of harbouring criminals and suppressing evidence.

10.        The Commission refers here to a judgment dated 23 February 1983 of the German Constitutional Court (1 BvR 990/82), in which that Court refers to indications suggesting that the Turkish authorities tried to ensure the return of political opponents by extradition proceedings based on "falsely inspired" charges ("[dass] es in der Vrgangenheit anscheinend vorgekommen ist, dass turkische Behorden mit manipulierten strafrechtlichen Vorwürfen versucht haben, im Wege des Auslieferungsverfahrens politischer Gegner habhaft zu werden"). The Constitutional Court held that in cases relating to political controversy the competent authorities must depart from the general rule of extradition law whereby the requested State does not examine the question whether there are circumstances amounting to plausible reasons for suspecting the person in question. However in this case, it is not clear from the file that the authorities of the respondent Party have really examined this question in detail.

The Commission concludes at this stage of the proceedings that it is not possible to rule out with sufficient certainty the danger that the criminal proceedings instituted against the applicant have been falsely inspired.

11.        Finally, the applicant alleges that his extradition might expose him to torture, which he claims is systematically practised in Turkey with the Government's approval. The respondent Government rejects this allegation as being completely ill-founded. Without denying the fact that high-ranking Turkish authorities have admitted to certain cases of torture, it noted in particular that this State was in a difficult situation and had commenced an anti-torture campaign which had resulted, inter alia, in a series of convictions of police officers.

12.        The Commission repeats that this case does not concern the question whether the Turkish Government is responsible for the undisputed fact that over the last few years there have been cases of torture in that country. The only question which the Commission is required to answer is whether a risk that the applicant may be subjected to torture or other inhuman or degrading treatment or punishment may reasonably be discarded at this stage of the proceedings.

13.        The Commission notes firstly that it is not disputed - and the Turkish Government itself has not denied - that cases of torture have occurred in this country. These facts have been partly confirmed by various organisations. Admittedly the Turkish Government stated that it was determined to fight resolutely against torture and the Commission has no reason to doubt the seriousness of this undertaking, which has resulted, for example, in a number of police officers being convicted for ill-treatment of prisoners. However, it has not been established that these efforts have been completely successful so that all risks in this area may now be ruled out.

14.        The Commission considers furthermore that the applicant himself may not be described as someone protected from all dangers. In view of his past record as a political activist and the allegation that he interfered with criminal proceedings against the murderers of a political figure, it cannot be absolutely ruled out that he may be regarded as someone able to provide information of such importance that there would be a temptation to use methods of pressure incompatible with Article 3 of the Convention in order to exact such information from him.

15.        On the other hand, the respondent Government has not satisfactorily answered the question as to what protective measures it would or intended to take in this regard. Finally, although this case concerns extradition to a High Contracting Party to the European Convention on Human Rights, the Commission attaches a certain importance to the fact that the applicant does not have, in respect of Turkey, the right of individual petition set forth as an optional clause to Article 25 of the Convention.

16.        For these reasons and in view of the present state of the file, the Commission considers that it is not able to declare this part of the application manifestly ill-founded within the meaning of Article 27, para. 2 of the Convention.

b.         The complaints based on Article 13 of the Convention

17.        The applicant also complains that the decisions of the Berlin Court of Appeal ordering extradition may not, like decisions by a Court of Appeal in another Land, be examined by the Federal Constitutional Court. He recalls that the constitutional appeal which he brought was declared inadmissible on 1 February 1983. He also notes the Land of Berlin does not have its own constitutional court.

18.        Firstly, as regards the limits of the Federal Constitutional Court's jurisdiction, the Commission notes that, in accordance with a reservation to the Basic Law made by the Western Allied Powers, Berlin is not governed by the Federation. The Commission considers that the Federal Republic of Germany may not as a result be held responsible under the Convention for the effects of this reservation. The Commission refers here to its decision on the admissibility of Application No. 235/56 (Yearbook 2, p. 257 at p. 305) relating to the Supreme Restitutions Court in the United States zone of occupation. It follows that the complaint is, in this respect, incompatible ratione personae, within the meaning of Article 27, para. 2 of the Convention, in so far as it covers the Federal Republic of Germany.

19.            Secondly, in so far as the applicant claims a right of access to a Berlin constitutional court, his application must be rejected as being incompatible ratione materiae within the meaning of Article 27, para. 2. No provision of the Convention obliges a High Contracting Party to grant persons under its jurisdiction access to a constitutional court as well as to the normal court of appeal (cf. e.g. Applications No. 448/59, Yearbook 3, pp. 255, 271, and No. 2717/66, Coll. 29, pp. 1, 13). The Commission also notes that the applicant was entitled to raise the complaint based on a violation of Article 3 of the Convention before the Court of Appeal.

For these reasons, the Commission:

DECLARES THE APPLICATION ADMISSIBLE, without prejudice to the merits, in so far as it concerns the question whether the applicant's extradition would constitute inhuman treatment within the meaning of Article 3 of the Convention;

DECLARES THE APPLICATION INADMISSIBLE as to the remainder.

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