HEADNOTE:

To the Issue of the validity of the principle of 'ne bis in idem' under International Law.

     Order of the Second Senate of 31 March 1987 -- 2 BvM 2/86--

in the proceedings to review the question of whether a generally recognized rule of public international law in the sense of Art. 25 of the Basic Law opposes the permissibility of extradition under the European Convention on Extradition of 13 December 1957, when the person sought to be extradited has already been punished and incarcerated for the same offence in a third state and when the judgment in the state seeking extradition does not take account in any manner of such incarceration.

-- Order by the Munich Regional Appeals Court to stay proceedings pending the ruling by the Federal Constitutional Court of 10 December 1986 (Ausl. 120/86)

DECISION:

A general rule of public international law that holds that a person who has already been sentenced to incarceration in a third state and has also served this sentence may not be prosecuted or sentenced for the same offence in another state, or at least that the time served in the third state must be taken into account in the subsequent sentencing, is not an integral part of Federal law. In addition, a general rule of public international law that opposes the permissibility of extradition under the European Convention on Extradition of 13 December 1957 when the person sought to be extradited has already been punished and incarcerated for the crime in a third state and when the judgment in the state sought extradition does not take account in any manner of such incarceration, is also not an integral part of Federal law.

EXTRACT FROM GROUNDS:

A.

I.

1. a) On the basis of a request by the Turkish authorities for temporary arrest to ensure extradition, the fugitive was arrested in Munich. The Regional Appeals Court in Munich issued a provisional extradition order against the fugitive. By way of note verbale on 3 November 1986, the Embassy of the Republic of Turkey in Bonn requested the extradition of the Turkish fugitive, submitting the judgment of the Crown Court (for grave penal offences) in E. of 31 October 1975, an arrest order by the Republic Department of Public Prosecutions in E., and other extradition documents.

b) Following judgment by the Crown Court in E., the fugitive was declared guilty of an offence under Art. 403 of the Turkish Criminal Code. The provision reads:

(1) The manufacture without license or in contravention of license of narcotics, the import or export of such, or an attempt to commit the foregoing acts is punishable by imprisonment of not less than 10 years, as well as with expulsion of 3 to 5 years. . . .

(2) In the event that the narcotic enumerated in the preceding section is heroin, cocaine, morphine or hashish, the felon is to be punished with imprisonment for life.

According to the findings of this judgment, the fugitive smuggled 8 kg of hashish in July 1967 from Turkey into Greece, where he was subsequently arrested; by way of judgment by the Criminal Trials Court in E. on 30 May 1968, he was sentenced to three years' imprisonment for these and other activities relating to dealings in narcotics. The fugitive has served this incarceration.

On account of this conduct, which, inter alia, was also the basis for the above mentioned sentence by the Criminal Court in E., the fugitive was sentenced by the Crown Court in E. to 18 years of hard labor. The sentence took into account the time served in Turkey in pre-trial confinement but not -- not even in part -- the incarceration in Greece. The sentence of 18 years is, apart from the time served in pre-trial confinement, still to be served; the request for extradition seeks enforcement of this sentence.

The Turkish Embassy in Bonn has stated that pursuant to Art. 36(2)(a)(i) of the Uniform Convention on Addictive Substances of 30 March 1961, the "illegal import, export or transportation, as well as the sale, etc. of drugs is to be viewed as independent fault"; therefore, it is said to be impossible to take into account the sentence served by the fugitive in Greece in enforcing the judgment of the Criminal Court in E.  Furthermore, this is not taken into consideration in some other manner but merely registered as prior conviction.

. . .

Investigative proceedings have not been initiated in the Federal Republic of Germany against the fugitive due to the facts underlying the extradition request.

c)  Upon commencement of the extradition request, including the above-mentioned extradition documents, by the investigative judge at the District Court in Munich, the fugitive declared that he was not willing to accept his simplified extradition to Turkey; on the contrary, he raised objections to his extradition, indicating that he was prepared to enter Turkey voluntarily.

2.  Upon application by the Department of Prosecutions and following hearing of the fugitive, the Regional Appeals Court in Munich decided to order the continuation of the fugitive's extradition confinement due to the above-mentioned judgment of the Crown Court in E.  At the same time, it deferred the decision on the permissibility of the fugitive's extradition and submitted the matter to the Federal Constitutional Court pursuant to Art. 100(2) of the Basic Law for clarification of the following legal issue:

Does a generally recognized rule of public international law in the sense of Art. 25 of the Basic Law oppose the permissibility of extradition under the European Convention on Extradition of 13 December 1957 when the person sought to be extradited has already been punished and incarcerated for the crime in a third state and when the judgment in the state seeking extradition does not take account in any manner of such incarceration?

a) The Appeals Court held the extradition order to be based on the above-mentioned judgment of the Crown Court in E.  Furthermore, the fugitive's conduct that led to this judgment is also said to be punishable under German law pursuant to § 29(1), No. 1 of the Narcotics Act. The basis for extradition was held to stem from Art. 2(1) of the European Convention on Extradition of 13 December 1957; [i] reasons standing in the way of extradition under Arts. 2-11 of the Convention were not found. In particular, the statute of limitations of enforcement has also not expired under German law. [ii] Furthermore, the circumstance that the imprisonment imposed upon the fugitive, and also served by him, in Greece was not taken into account by the Crown Court in E. in its sentence of 18 years of hard labor was also held not to oppose unconditionally the permissibility of the extradition in the sense of § 15(2) of the Federal Act on International Legal Assistance. In particular, a barrier to extradition does not result from Art. 9, first sentence, of the Extradition Convention, which states that the extradition is not to be approved when the person sought has been lawfully sentenced by the competent authorities of the requesting state for actions on which the extradition is requested: according to its unambiguous wording, the provision is neither directly nor analogously applicable to a lawful sentencing by a third state -- here, Greece. Furthermore, the Court held that in ratifying the European Convention on Extradition, the Federal Republic of Germany did not make a reservation with regard to accounting for punishment under judgments of third states. For these reasons, the failure to account for the fugitive's imprisonment in Greece would only be able to oppose the permissibility of the extradition if a generally recognized rule of public international law were to be found that would require the taking into account of punishment imposed and served in some other state for the same offence and thus give certain consideration to the principle of ne bis in idem in the international field as well.

Such a general rule of public international law was, however, not held to exist, at least not at the present time: the validity of the principle of ne bis in idem has thus far been limited to sentencing by the same state. In addition, the "accounting principle" -- i.e., taking into account punishment imposed and served in another state -- which ultimately represents merely a moderated form of the principle of ne bis in idem and is provided for in the internal law of a variety of states, has not yet achieved general recognition on the international level.

The requirement stemming from § 15(2) of the IRG for the ordering and continuation of extradition confinement was therefore held to be fulfilled; since the basis for confinement -- risk of flight -- also continues to exist (as was explained in detail), the continuation of extradition confinement pursuant to § 16(3) of the IRG was directed.

c) Since the fugitive declared that he was not willing to accept his simplified extradition, the Court held that the permissibility of the extradition was to be decided pursuant to § 29(1) of the IRG.  However, this decision was unable to be made since it depended on the answer to the question of the "accounting principle" under a generally recognized rule of public international law in the sense of Art. 25 of the Basic Law; thus, the matter had to be submitted to the Federal Constitutional Court pursuant to Art. 100(2) of the Basic Law.

c) Although the Regional Appeals Court in Munich was not of the opinion that a generally recognized rule of public international law in the sense of Art. 25 of the Basic Law does not oppose the applied for extradition, a submission under Art. 100(2) of the Basic Law is, however, required when the court, in reviewing whether and to what extent a general rule of public international law is applicable, meets with objectively serious doubts and not simply when it itself entertains such doubts. Objectively serious doubts are present when the court deviates from the view of a constitutional organ or the decisions of higher German, foreign or international tribunals or from the teachings of recognized authors of public international law. [iii] Accordingly, the submission to the Federal Constitutional Court pursuant to Art. 100(2) of the Basic Law is mandatory: Following from an order by the Regional Appeals Court in Stuttgart of 17 July 1986, in which a case was submitted to the Federal Constitutional Court, it is clear that the Federal Minister of Justice, as competent representative of the constitutional organ of the Federal Government, is of the opinion that the international norm of the ordre public prohibits in cases similar to the instant the extradition of fugitives to Turkey. The Federal Minister of Justice explained that the demand for recognition of the principle of ne bis in idem has recently been made with increasing force in the international arena as well. The Court noted that this finding was supported by the necessity of satisfactorily settling competition between two sentences issued in different states for the same matter. With regard to the Republic of Turkey, the Federal Government has repeatedly raised the question of whether extradition to enforce sentences for a punishable action already sentenced in a third state is at least opposed by the international norm of the ordre public when this act may be punished with a more severe sentence in the state seeking extradition and, moreover, when this state neither accounts for time already served in the third state nor takes this into consideration in sentencing. The Federal Minister of Justice would tend to answer this question in the affirmative when the criminal were to be subject to full punishment without accounting in the state seeking extradition in such a manner as if the sentence and the incarceration in the third state had not existed.

At present it cannot be assumed that the principle of ne bis in idem has been generally recognized in the international arena, since the recognition of the prohibition on double punishment relating to foreign judgments is only to be found in the penal laws of a few states. Nevertheless, nearly all states that normally do not forego enforcement of their own penal claims for crimes committed abroad take into consideration sentencing already served by way of the "accounting principle." In addition, the law of some states permits the taking into consideration of foreign judgments and incarceration in sentencing. These rules, as well as the principle of ne bis in idem, prevent a criminal from being subjected to repeated punishment for his offence. In the event that such rules are absent in the state seeking extradition, it is also fair to assume a violation of the ordre public when it can be assumed that not every element of the rules applicable in the state seeking extradition in and of itself represents a violation of international norms.

. . .

II.

. . .

The Federal Minister of Justice and the Federal High Court of Justice are of the opinion that as a consequence of non-accounting punishment already served, there is a threat of punishment that is to be viewed as excessive in comparison to the internationally common standard and thus is in violation of the internationally binding minimum standard.

The Federal Prosecutor indicated that the non-accounting of incarceration served by a fugitive in a third state does not make extradition impermissible, since neither rules of public international law nor those of German law oppose the extradition of such a fugitive. . . . Art. 14 of the International Charter on Civil and Political Rights merely prohibits the renewed prosecution and punishment of a person in the state in which he has already been lawfully convicted, whereas the European Human Rights Convention does not contain the principle of ne bis in idem.  This principle is alleged not to have attained international recognition: Although a trend can be seen in the practice of states to consider foreign convictions under certain conditions from the standpoint of the prohibition on double punishment, it can nevertheless not be ascertained that a general rule of public international law in the sense of Art. 25 of the Basic Law has come about. In its treaty practice, the Federal Republic of Germany itself is said to attribute little significance to the principle of the prohibition on double punishment in cases of convictions in a third state. The hesitant recognition of the principle of ne bis in idem for convictions in third states is said to be particularly attributable to the fact that the satisfaction of the need for atonement by such convictions cannot be considered as guaranteed in every instance. Furthermore, the subject matter and justification for a conviction in a third state are often unable to be determined with sufficient certainty. In the area of the Federal Republic of Germany, Art. 103(3) of the Basic Law does not oppose renewed sentencing following conviction abroad. For these reasons, the impermissibility of extradition in cases such as the instant one may not be derived from this constitutional provision. § 51(3) of the Code of Civil Procedure and § 153c(1), No. 3 of the Criminal Procedure Ordinance reveal that such an impediment is also unable to be taken from German statutory law. The same applies when a state seeking extradition does not account for punishment served following conviction in a third state in convicting a fugitive for the same offence. Neither international treaty law nor general public international law gives rise to a barrier to extradition in this case.

. . .

B.

The submission is admissible. . . . (elaboration by the Court).

C.

The submitted question is to be answered in the negative.

There is presently no general rule of public international law that states that a person who has been sentenced to imprisonment in a third state and has also served this sentence is unable to be retried or reconvicted for the same offence in another state, or that the time served in prison in the third state must be accounted for or taken into consideration. Similarly, there is presently no general rule of public international law opposing the permissibility of extradition when the person sought has already been imprisoned for the same offence in a third state and this time is not accounted for or taken into consideration by the state seeking extradition.

1.  According to Art. 25 of the Basic Law, when the legislator creates the national legal system and when the administration and the courts interpret and apply the provisions of national law, the general rules of public international law are to be observed; [iv] the same applies to the European Convention on Extradition of 13 December 1957, approved by consenting law and ratified by the Federal Republic of Germany. This in particular means that the authorities and courts of the Federal Republic of Germany are, on account of Art. 25 of the Basic Law, basically prevented from interpreting and applying national law in such a manner as to violate the general rules of public international law. They are also obliged not to undertake anything that might give effect to an action by a non-German sovereign in violation of general rules of public international law within the scope of validity of the Basic Law and are prevented from conclusively participating in an action by a non-German sovereign in violation of general rules of public international law.

a) This general principle has thus far been especially given concrete form in the area of extradition law. For instance, the Federal Constitutional Court has repeatedly held [v] that the courts of the Federal Republic of Germany in reviewing the permissibility of an extradition are basically to assume the validity of the underlying criminal conviction by the state seeking extradition and are not to review its lawfulness pursuant to the national law of the state seeking extradition. This does not, however, prevent a review of whether the extradition and its underlying acts violate the binding minimum standard under public international law, which the courts of the Federal Republic of Germany must observe under Art. 25 of the Basic Law, or irrenouncable constitutional principles of their public order. This principle has since been statutorily anchored in §§ 49(1), No. 2, and 73 of the IRG, which is to be applied to all forms of legal assistance, especially extradition, and declares as impermissible all forms of legal assistance that contradict fundamental principles of the German legal system or the binding minimum standard under public international law in the area of human rights.

b) Following the legal assessment undertaken by it, the Regional Appeals Court is obliged under the European Convention on Extradition to recognize the permissibility of the extradition. A contrary decision would therefore only fail to establish a commitment by the Federal Republic of Germany under public international law vis-à-vis Turkey based on a violation of treaty law (namely, the European Convention on Extradition) when a higher-ranking norm of public international law opposed the duty to extradite resulting from the European Convention on Extradition: this norm would, pursuant to Arts. 53 and 64 of the Vienna Convention on the Law of Treaties of 23 May 1969 (approved by law of 3 August 1985 [vi] ), have to possess the quality of ius cogens. [vii] In other words, in order to rule out a commitment of the Federal Republic of Germany under public international law vis-à-vis Turkey due to non-fulfillment of the European Convention on Extradition, the extradition must be opposed by a mandatory general rule of public international law in the sense of Art. 25 of the Basic Law. This would have to require that a person may not be retried or reconvicted in a state for an offence for which he has already been sentenced and incarcerated in a third state; or that the time served in prison in the third state must be accounted for or taken into consideration; or that extradition may not take place when the person sought has already been incarcerated in a state for an offence underlying the extradition request and this time is not accounted for or taken into consideration in the state seeking extradition. Such a general rule of customary public international law is unable to be found at the present time.

2. a) In the legal systems of a number of states, the principle of ne bis in idem or the prohibition on double jeopardy is recognized with respect to penal proceedings conducted in the same state. This recognition has been laid down in part in constitutional law [viii] and in part in criminal or criminal procedure law. [ix] The International Covenant on Civil and Political Rights of 19 December 1966 [x] provides in Art. 14(7):

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

This Covenant has been ratified by more than 80 states with diverse legal systems, without, however, the validity of Art. 14(7) being conscribed with numerous reservations. Solely Denmark placed a reservation on the binding effect of Art. 14(7):

. . .  Article 14, paragraphs 5 and 7, shall not be binding on Denmark.

The Danish Administration of Justice Act contains detailed provisions regulating the matters dealt with in these two paragraphs. In some cases, Danish legislation is less restrictive than the Covenant (e.g. a verdict returned by a jury on the question of guilt cannot be reviewed by a higher tribunal, cf. paragraph 5); in other cases, Danish legislation is more restrictive than the Covenant (e.g. with respect to resumption of a criminal case in which the accused party was acquitted, cf. paragraph 7).

Finland, Iceland and Austria entered reservations that made clear that the reasons for retrial provided for in the national legal systems were not to be ruled out by Art. 14(7); the Netherlands declared that Art. 14(7) did not hinder of the validity of Art. 68 of the Dutch Criminal Code. This reservation reads:

The Kingdom of the Netherlands accepts this provision only insofar as no obligations arise from it further to those set out in article 68 of the Criminal Code of the Netherlands and article 70 of the Criminal Code of the Netherlands Antilles as they now apply. They read:

1.  Except in cases where court decisions are eligible for review, no person may be prosecuted again for an offence in respect of which a court in the Netherlands or the Netherlands Antilles has delivered an irrevocable judgement.

2.  If the judgement has been delivered by some other court, the same person may not be prosecuted for the same offence in the case of (i) acquittal or withdrawal of proceedings or (ii) conviction followed by complete execution, remission or lapse of the sentence. [xi]

On the regional level, Art. 8(4) of the American Convention on Human Rights of 22 November 1969, [xii] now valid in some 19 states, guarantees that "an accused person acquitted by a non-appealable judgement shall not be subjected to a new trial for the same cause."

The loophole existing in Europe under the European Human Rights Convention was closed with the entry into force of the Seventh Additional Protocol to the EHRC of 22 November 1984. [xiii] According to Art. 4 of the Protocol:

1.  No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same state for an offence for which he has already been finally acquitted or convicted in accordance with the law on penal procedure of that State.

2.  The provisions of the preceding paragraph shall not prevent the re-opening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3.  No derogation from this Article shall be made under Art. 15 of the Convention.

The European Commission on Human Rights has in recent decisions indicated that Art. 6(3) of the Convention, which guarantees that a person charged with a criminal offence has certain minimum procedural rights, might under certain circumstances prevent a double conviction in the same Treaty state. [xiv] The foregoing thus justifies the conclusion that the principle of ne bis in idem is a general rule of public international law in the sense of Art. 25 of the Basic Law, which prevents the renewed conviction of a person sought for the same offence in the same state. [xv] On the other hand, there are currently no general rules of public international law in the sense of Art. 25 of the Basic Law, according to which no one may be tried or punished by the courts of one state for an offence for which he has already been convicted or acquitted by another state or that a sentence served abroad must be accounted for in the former state or be taken into consideration in sentencing. This becomes particularly evident in light of the fact that none of the above-mentioned universal or regional human-rights instruments by their wording extend the principle of ne bis in idem or the prohibition on double jeopardy to criminal proceedings in another state. [xvi] On the other hand, one finds an increasing tendency on the part of national legislation to consider in the conducting of new criminal proceedings convictions of imprisonment abroad that have been served or acquittals as procedural barriers or at least in the event of a new conviction, to account for the sentence or to take it into consideration in the new sentencing -- a tendency to be observed at least in European states. [xvii] This apparently growing trend has, however, not yet achieved the requisite worldwide scale in order for it to become a general rule of public international law in the sense of Art. 25 of the Basic Law. [xviii]

b) In the area of international extradition law, [xix] there is at present no general rule of public international law in the sense of Art. 25 of the Basic Law that stands in the way of the extradition of a person sought when he has already served a prison sentence for the same offence for which the extradition is sought and this time is not accounted for or taken into consideration in a renewed conviction.

aa) Bi- and multilateral treaty law on extradition [xx] does reveal a growing trend that the permissibility of extradition of a person from a state is opposed by the fact that imprisonment served by the person sought in a third state is not or cannot be accounted for or taken into consideration in sentencing by the state seeking extradition in the event of a renewed conviction for the same offence; nevertheless, this development as well has not yet achieved such a scale internationally as to be able to state that a general rule of public international law exists in the sense of Art. 25 of the Basic Law.

In the area of multilateral treaty law on extradition, the European Convention on Extradition in Art. 9 contains only the provision that extradition is not to be approved when the person sought has been lawfully convicted by the competent authorities of the requested state for the same offence on which extradition is based; it does not refer to acquittal or conviction in a third state. [xxi] The European Convention on Extradition therefore does not stand in the way of the extradition of a person convicted in a third state. [xxii] In addition, the relevant convention for the Latin American area -- the Convención Interamericana sobre Extradición -- of 25 February 1981 [xxiii] contains in Art. 4(1) only a provision making extradition impermissible when the person sought has been acquitted or convicted in the requested state for the same offence on which extradition is based.

This provision has the following wording:

Article 4

Grounds for Denying Extradition

Extradition shall not be granted

1. When the person sought has completed his punishment or has been granted amnesty, pardon or grace for the offense for which extradition is sought, or when he has been acquitted or the case against him for the same offense has been dismissed with prejudice.

2. When the prosecution or punishment is barred by the statute of limitations according to the laws of the requesting State or the requested State prior to the presentation of the request for extradition.

3. When the person sought has been tried or sentenced or is to be tried before an extraordinary, or ad hoc tribunal of the requesting State.

4. When, as determined by the requested State, the offense for which the person is sought is a political offense, an offense related thereto, or an ordinary criminal offense prosecuted for political reasons. The requested State may decide that the fact that the victim of the punishable act in question performed political functions does not in itself justify the designation of the offense as political.

5. When, from the circumstances of the case, it can be inferred that persecution for reasons of race, religion or nationality is involved, or that the position of the person sought may be prejudiced for any of these reasons.

6. With respect to offences that in the requested State cannot be prosecuted unless a complaint or charge has been made by a party having a legitimate interest. [xxiv]

Comparable rules are to be found in Art. V of the Extradition Convention of the League of Arab States of 3 November 1952, [xxv] and in Art. 11 of the Articles Containing the Principles Concerning Extradition of Fugitive Offenders of the Asian-African Legal Consultative Committee, drafted in 1961. [xxvi] Whereas, for instance, the 1983 Cambridge Resolution of the Institut de Droit International [xxvii] contains no rules on the third-state problematic, Art. 9 of the Scheme Relating to the Rendition of Fugitive Offenders within the Commonwealth Formulated at a Meeting of Commonwealth Law Ministers, London, 26 April - 3 May 1966 [xxviii] states that "the return of a fugitive offender will be precluded by law if the competent judicial or executive authority is satisfied that he has been convicted . . . or has been acquitted, whether within or outside the Commonwealth, of the offence of which he is accused." [xxix] It is thus at present not to be stated that a general rule of public international law exists within the sense of Art. 25 of the Basic Law, which would hold that the extradition of a person sought is opposed by his acquittal or conviction in a third state. This is also supported by the fact that of the 17 member states to the European Convention on Extradition, only 5 have made reservations of differing scope to Art. 9 with regard to convictions in a third state: for instance, Denmark has stated that extradition may be denied when the competent authorities of a third state have lawfully convicted or acquitted the person for an offence for which extradition is requested or when the competent authorities of a third state have decided either not to introduce proceedings or to dismiss them for the same offence; [xxx] Ireland's reservation states that the Irish authorities will not grant extradition when the person sought has been lawfully sentenced in a third state for the same offence for which extradition is requested; [xxxi] Luxembourg applies the reservation that extradition will not be granted when the person sought has been lawfully sentenced in a third state for the same offence for which extradition is requested and when, in the case of a conviction for this offence, he is serving or has served his sentence or when it has been remitted; [xxxii] the Netherlands' reservation has the same wording as Luxembourg's; [xxxiii] according to the Swiss reservation, extradition may also be denied when the decisions on which the denial of extradition is based have been made in a third state and involved the state in which the offence was committed. [xxxiv] Although the first Additional Protocol to the European Convention on Extradition of 15 October 1975, [xxxv] in force internationally since 20 August 1979, extends the scope of application of Art. 9, first sentence, of the Convention to cases in which the person sought has been convicted or acquitted in a third state of an offence on which the extradition request is based, it has nevertheless only been ratified by a few of the states party to the Convention; even the Federal Republic is not signatory to it. Furthermore, its scope of application is limited to convictions or acquittals in a third state party to the Convention; moreover, it permits extradition "if the offence in respect of which judgment has been rendered was committed against a person, an institution or any thing having public status in the requesting State; if the person on whom the judgment was passed had himself a public status in the requesting State; if the offence in respect of which judgment was passed was committed completely or partly in the territory of the requesting State or in a place treated as its territory."

It is also impossible to confirm from bilateral treaty law on extradition a general rule of public international law with the described content: for instance, of the 59 extradition treaties concluded by the Federal Republic of Germany, only the treaty with Yugoslavia of 26 November 1970 [xxxvi] in Art. 7(2) contains a rule according to which extradition is not to be granted with respect to a lawful conviction in a third state; pursuant to Art. VI(2) of the Extradition Treaty with Canada of 11 July 1977 [xxxvii] and Art. 7, No. 2 of the Extradition Treaty with Monaco of 21 May 1962, [xxxviii] extradition may be denied in the event of sentencing in a third state for an offence on which the extradition request is based.

bb) In the area of non-treaty extradition law as well -- i.e., that based on the national extradition laws in the community of states -- there is also an observable trend toward not granting extradition when the person sought has already served imprisonment in a third state for the same offence on which the extradition request is based and when the time served is not accounted for in renewed conviction in the requesting state or consideration is not or is unable to be given in sentencing; nevertheless, this development has not yet taken on such proportions as to be able to say that a general rule of public international law has come about in the sense of Art. 25 of the Basic Law. [xxxix] Even prior to the entry into force of the Swiss Federal Act on International Legal Assistance in Criminal Matters of 20 March 1981, [xl] Switzerland's extradition practice followed the rule that extradition is to be refused when the person sought has been lawfully acquitted or served a sentence in a third state for the same offence. [xli] Art. 5(1) of the Act now determines that a request for extradition is not to be granted when either in Switzerland or in the state of offence, the judge has acquitted the person sought for reasons of substantive law, has dropped the proceedings against him or has imposed no sanction, at least temporarily, against him, or when the sanction has been enforced or when it is not enforceable under the law of the deciding state. The prohibition on extradition does not, however, apply when the requesting state "indicates reasons for an appeal of the final and conclusive decision in the sense of Art. 229 of the Federal Act on Criminal Administration." [xlii] § 17 of the Austrian Extradition and Legal Assistance Act of 4 December 1969 [xliii] states that extradition is impermissible when the person to be extradited on account of a criminal offence has either been acquitted of or otherwise removed from prosecution for a criminal offence by a court of the state of the offence or has been lawfully convicted by a court of a third state and the penalty has been fully enforced or when it has been remitted entirely or to the extent not yet enforced or when the statute of limitations has run on enforceability under the law of the third state. [xliv] Other provisions that oppose the extradition of a person who has been acquitted or served a sentence in a third state for the same offence are also to be found in § 17 of the Irish Extradition Act of 19 July 1965, in Art. 8(3) of the Norwegian Extradition Act of 13 June 1975, and in § 10 of the Swedish Extradition Act of 6 December 1957.

On the other hand, the formulation of § 9 of the German Act on International Legal Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen IRG) indicates that an earlier sentence and incarceration in a third state for the same offence on which the extradition request is based does not stand in the way of extradition. The prohibition on extradition under § 9 of the IRG refers only to the conclusive judgment by German courts and authorities. The person sought may not rely by way of reference to a foreign conviction on the principle of ne bis in idem, since a foreign judgment does not give rise to legal force in the Federal Republic of Germany. [xlv] This principle is also adhered to by German case law. In addition, the prohibition on double jeopardy laid down in the 5th Amendment to the United States Constitution does not stand in the way of the extradition of a person who has been sentenced and served imprisonment in a third state for the same offence on which the extradition request is based. For instance, in a landmark ruling on 1 May 1973, [xlvi] the Federal District Court in New York held that "there is no constitutional right to be free from double jeopardy resulting from extradition to the demanding country . . ..  The Fifth Amendment right not 'to be twice put in jeopardy of life or limb' is available only to prosecutions in this country. The essential elements of a plea of double jeopardy are identity of successive sovereigns . . ..  There is clearly no identity of sovereignty between Austria and the Federal Republic of Germany." The extradition order was confirmed by the Court of Appeals. [xlvii] This case law was later followed by the Federal District Court for Connecticut in United States v. Galanis on 8 March 1977. [xlviii]

3.  In view of the foregoing, it can be established: At the present time, there is neither a general rule of public international law in the sense of Art. 25 of the Basic Law that holds that a person who has been sentenced to imprisonment in a third state and has served this may not be retried or reconvicted in another state for the same offence or at least that the time served in the third state in the event of a renewed conviction must be accounted for or taken into consideration, nor is there a general rule that holds that the permissibility of extradition under an extradition treaty is opposed by the fact that the person sought has already served imprisonment in a third state for the same offence on which the extradition request is based and this time is not accounted for or taken into consideration in the event of a renewed conviction in the requesting state. If no such rule of customary international law exists, then there is no need to examine the question of whether such a rule, if it were to exist, would belong to the catalogue of those norms that represent the minimum international standard in the area of human rights or display the quality of mandatory international law.

Judges: Zeidler, Dr.Dr.h.c. Niebler, Steinberger, Träger, Mahrenholz, Böcken-förde, Klein, Graßhof

Endnotes

[xlix]

[i] BGBl. 1964 II, p. 1369.

[ii] § 79(3), No. 1 of the Criminal Code (Strafgesetzbuch).

[iii] Cf. BVerfGE 23, 288; BVerfGE 64, 1, 14-15.

[iv] BVerfGE 23, 288, 300; BVerfGE 31, 145, 177; Vorprüfungsausschuß, Resolution of 11 October 1985, EuGRZ 1985, p. 654.

[v] BVerfGE 59, 280, 282 ff.; BVerfGE 60, 348, 355-56; BVerfGE 63, 197, 206 ff.

[vi] BGBl. 1985 II, p. 926.

[vii] On international ius cogens, cf. Frowein, Ius Cogens, in Bernhardt, Encyclopedia of Public International Law, Instalment 7, pp. 327 ff. (1984).

[viii] Cf. Art. 103(3) of the Basic Law, Art. 42 of the Constitution of Costa Rica, Art. 20(2) of the Constitution of India, Art. 39 of the Constitution of Japan, Art. 11(h) of the Canadian Charter of Rights and Freedoms, Art. 29(5) of the Constitution of Portugal, and the 5th Amendment to the Constitution of the United States of America; on the latter, cf. Osakwe, The Bill of Rights for the Criminal Defendant in American Law, in Andrews, Human Rights in Criminal Procedure, pp. 259 ff., 286 (1982).

[ix] Cf., e.g., Art. 6 of the French Code de Procédure Penale and the English common-law principle of "autrefois acquit/convict"; on the latter, cf. Lidstone, Human Rights in the English Criminal Trial, in Andrews, supra note 8, at pp. 63 ff., 85 ff.

[x] BGBl. 1973 II, p. 1533.

[xi] For Art. 14(7), cf. Noor Muhammad, Due Process of Law for Persons Accused of Crime, in Henkin, The International Bill of Rights, pp. 138 ff., 156 (1981).

[xii] OAS Treaty Series No. 36.

[xiii] Text of the Protocol and Explanatory Memorandum in 6 Human Rights Law Journal 80 ff. (1985); cf. also Nowak, Neurere Entwicklungen im Menschenrechtsschutz des Europarats, EuGRZ 1985 240 ff., 241.

[xiv] Cf. the references in Peukert, in: Frowein/Peukert, EMRK-Kommentar, Art. 6 Rdnr. 120 (1985).

[xv] See also Miehsler/Vogler, in: Golsong/Karl, et al., Internationaler Kommentar zur Europäischen Menschenrechtskonvention, Art. 6 Rdnr. 375 (1986).

[xvi] Cf. the Denkschrift of the Federal Government on the International Covenant on Civil and Political Rights of 19 December 1966, BTDrucks. 7/660, p. 35, where it is stated that "it has been ascertained in the discussions of the United Nations that Art. 14(7) has no transborder significance but instead refers only to convictions in the respective country."; cf. also the description in the relevant deliberations in UN Doc. A/4299 of 3 December 1959, pp. 17 ff., and Noor Muhammad, supra note 11; on Art. 4 of the Seventh Additional Protocol to the EHRC, cf. the Explanatory Memorandum, where it is emphasized that "the words 'under the jurisdiction of the same State' limit the application of the Article to the national level", reproduced in 6 Human Rights Law Journal 86 (1985).

[xvii] Cf. (older) the references in: A. Barbey, De l'application internationale de la règle non bis in idem en matière répressive, Lausanne, pp. 100 ff. (1930); (more recent) the data in: Council of Europe, Aspects of the International Validity of Criminal Judgments, pp. 22 ff. (1968), and in: The "no bis in idem" principle in criminal law in the EEC, Report of the Legal Affairs Committee (of the European Parliament) of 20 February 1984 (reproduced in 5 Human Rights Law Journal 391 ff. (1984)) on the provisions of: Art. 13(1) of the Belgian Code Penal (accounting for the length of imprisonment abroad in new convictions in Belgium) and Art. 360 of the Belgian Code Penal (prosecution barrier in the event of acquittal in another state); § 10 a of the Danish Criminal Code (prosecution barrier in the event of acquittal or imprisonment in a member state of the European Convention on the International Validity of Criminal Convictions of 28 May 1970) and § 10 b of the Danish Criminal Code (in other cases as in § 10a); § 153 c of the Criminal Procedure Ordinance of the Federal Republic of Germany (possibility of non-prosecution of crimes committed abroad); Art. 692 of the French Code de Procédure Penale (prosecution barrier for acquittal or imprisonment served abroad); Art. 68(2) of the Dutch Criminal Code (prosecution barrier for acquittal or serving of imprisonment abroad); Art. 12 a of the Norwegian Criminal Code (prosecution barrier for acquittal or imprisonment served in a member state of the European Convention on the International Validity of Criminal Convictions of 28 May 1970) and Art. 13(4) of the Norwegian Criminal Code (in cases other than those under Art. 12a); § 66 of the Austrian Criminal Code (accounting for imprisonment served abroad in renewed domestic conviction) and § 65(4) of the Austrian Criminal Code (prosecution barrier for acquittal or imprisonment served abroad with respect to offences designated in § 65(1) of the Criminal Code; cf. Epp, Der Grundsatz "Ne bis in idem" im internationalen Rechtsbereich, 1979 ÖJZ 36 ff.); § 6 of the 2 d Chapter of the Swedish Criminal Code (prosecution barrier for acquittal or imprisonment served in a member state of the European Convention on the International Validity of Criminal Convictions of 28 May 1970, or, in the event that this condition is not present, deducting of imprisonment served abroad in renewed conviction in Sweden); and Arts. 3-5 of the Swiss Criminal Code (basic accounting for imprisonment served abroad in renewed conviction in Switzerland, or for specifically enumerated offences, prosecution barrier in the event of acquittal or imprisonment served abroad. In Great Britain, a person who has been acquitted or served a prison sentence abroad may not be reprosecuted for the same offence; cf. the cited case law in the above-mentioned Report of the Legal Affairs Committee of the European Parliament, 5 Human Rights Law Journal 392 (1984), namely: R. v. Hutchinson, 3 Keb 785 (1677); R. v. Roche, 1 Leach 134 (1775); and R. v. August, 118 L.T. 658 (1918).  In Turkey, foreigners who commit criminal offences are subject to Art. 7(2) of the Turkish Criminal Code, according to which imprisonment imposed abroad is to be deducted by the Turkish courts in sentencing following a permissible renewed conviction; cf. Mezger, et al., Das ausländische Strafrecht der Gegenwart, vol. 4, p. 442.  For other references, see Oehler, Internationales Strafrecht, 2 d ed., 1983, p. 577, and Markees, Mehrfache territoriale Gerichtsbarkeit, ne bis in idem und Auslieferung, 41 SchwJbIntR 121 ff., 124 (1985).

[xviii] Cf. Oehler, supra note 17, at 585-86; Epp, supra note 17, at 40-41; Markees, supra note 17, at 127.

[xix] See Stein, Extradition, in Bernhardt, Encyclopedia of Public International Law, Instalment 8, pp. 222, 227 (1985).

[xx] See id. at 229 ff.

[xxi] Cf also Council of Europe, Explanatory Report on the European Convention on Extradition, pp. 19-20 (1969), and the Denkschrift of the Federal Government, BTDrucks. IV/382, p. 22.

[xxii] Cf. also Schultz, The Principles of the Traditional Law of Extradition, in: Council of Europe, Legal Aspects of Extradition Among European States, pp. 1 ff., 19 (1970); Duk, Principles Underlying the European Convention on Extradition, in: id., pp. 43-44.

[xxiii] Reproduced in 20 International Legal Materials 723 ff. (1981).

[xxiv] Cf. Zanotti, La nueva Convención Interamericana sobre Extradición, Revista Peruana de Derecho Internacional No. 83, pp. 16 ff., and No. 85, pp. 32 ff. (1982); Vieira, L'évolution récente de l'extradition dans le continent américain, in: 185 Recueil des Cours 151 ff., 276-77 (1984-II).

[xxv] Reproduced in 8 Revue Egyptienne de Droit International 328 (1952), and 159 British and Foreign State Papers 606; see also Bassiouni, International Extradition and World Public Order 456-57 (1974).

[xxvi] Reproduced in Bassiouni, supra note 25, at 457-58.

[xxvii] AnnIDI, vol. 60 II, pp. 304 ff. (1984).

[xxviii] Reproduced in Shearer, Extradition in International Law, pp. 252, 255 (1971).

[xxix] Cf. Robinson, The Commonwealth Scheme Relating to the Rendition of Fugitive Offenders: A Critical Appraisal of Some Essential Elements, 33 ICLQ 614 ff. (1984).

[xxx] Cf. Grützner/Pötz, Internationaler Rechtshilfeverkehr in Strafsachen, 2 d ed., II D 1, p. 17.

[xxxi] Id. at II I 10, p. 12.

[xxxii] Id. at II L 15, p. 16.

[xxxiii] Id. at II N 13, p. 24.

[xxxiv] Id. at II S 16, p. 28.

[xxxv] European Treaty Series No. 86.

[xxxvi] BGBl. 1974 II, p. 1257.

[xxxvii] BGBl. 1979 II, p. 665.

[xxxviii] BGBl. 1964 II, p. 1297.

[xxxix] Cf. also Markees, supra note 17, at 127.

[xl] Bundesgesetz über Internationale Rechtshilfe in Strafsachen, reproduced in Grützner/Pötz, supra note 30, at IV S 16, pp. 1 ff.

[xli] Cf. Schultz, Das schweizerische Auslieferungsrecht, p. 475-76 (1953); Schultz, Aktuelle Probleme der Auslieferung, 81 ZStW 199 ff. (1969).

[xlii] Cf. Schultz, Das neue Schweizer Recht der internationalen Zusammenarbeit in Strafsachen, SJZ 1981, pp. 89 ff.

[xliii] Auslieferungs- und Rechtshilfegesetz, reproduced in Grützner/Pötz, supra note 30, at IV O 5, pp. 26 ff.

[xliv] Cf. Linke, Grundriß des Auslieferungsrechts, pp. 56-57 (1983).

[xlv] Cf. Vogler, in: Grützner/Pötz, supra note 30, at I A 2, § 9, p. 7.

[xlvi] In re Ryan, 360 F. Supp. 270, 274, 275 (1973).

[xlvii] 478 F.2 d 1397 (2 d Cir. 1973).

[xlviii] 429 F. Supp. 1215 (1977).

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