HEADNOTES:

Enforcement of a Soviet zone penal judgment in the Federal Republic is in principle admissible; it is however precluded where the Soviet zone penal judgment contravenes the object of a Federal Act or infringes essential constitutional principles or is in contradiction with a fundamental right guaranteed in the Basic Law.

Before enforcing a Soviet zone penal judgment, the enforcement authority must itself verify whether the judgment displays flaws of the kind referred to under 1; against this decision, the convicted person has regular recourse by Article 19(4) Basic Law to the Criminal Court which within the area to which the Basic Law applies corresponds with the court that would otherwise be competent in accordance with Para.458 of the Code of Criminal Procedure.

A constitutional complaint against the enforcement authority's decision mentioned under 2 is admissible only after exhaustion of the legal remedies provided for in Article 19(4) Basic Law.

The differing penal practice of different courts does not constitute an infringement of Article 3 Basic Law; an individual Criminal Court is bound by Article 3 Basic Law to render judgment without respect to the person and to make no arbitary distinctions in allotting punishment.

Enforcement of a Soviet zone penal judgment whereby the accused was convicted in his absence to a prison term does not necessarily constitute an infringement of the fundamental rights pursuant to Articles 1, 2 or 104 Basic Law.

Where organs of a State authority compel a citizen through deliberate arbitrary measures to abscond and an organ of the same State authority opens proceedings in absentia against the fugitive before a court, then Article 103(1) Basic Law is infringed.

Judgement of the First Senate of 13 June 1952 - 1BvR 137/52 - in the proceedings concerning the constitutional complaint by B. against the decisions of the Director of Public Prosecutions in GT of 4 October 1951 and of 22 February 1952 (AR 9/51).

DECISION:

The constitutional complaint is rejected.

EXTRACT FROM GROUNDS:

I.

1. The complainant, born on 14 July 1920 in Fleißen (Czechloslovakia), took residence after his return from Russian captivity in the Soviet occupation zone.

...

During a car journey he caused an accident in Reichenbach. By judgment of the Magistrates' Court in Reichenbach of 27 June 1950 he was sentenced to two years imprisonment for negligent homicide in coincidence with an offence against Para. 24 (1) (1) of the Motor Vehicle Act. Judgment was given in the accused's absence, as he had already, on 28 July 1949, gone with his fiancé and her children to Calw/Wttbg. in the Federal Republic.

2. On application from the Department of Public Prosecutions in Plauen, addressed to the Director of Public Prosecutions in Tübingen for enforcement of sentence by way of mutual judicial assistance, the Ministry of Justice of Land Württemberg-Hohenzollern ordered initiation of enforcement against B., with the instruction to submit the papers again after a sentence of five months had been served. By decision of the Director of Public Prosecutions in Tübingen the convicted person was summoned to begin sentence. The complaint of official conduct thereupon lodged was rejected by order of the Minister of Justice. A further petition for "suspension of sentence during good behaviour" or postponement of commencement of sentence by six months was rejected by the Director of Public Prosecutions in Tübingen at the same time the convicted person was again summoned to begin sentence on 1 March 1952.

On 1 March 1952 B.lodged a constitutional complaint applying for the decisions of the Director of Public Prosecutions in Tübingen be overruled.

The complainant regards the adjudication of the Reichenbach Magistrates' Court as inhumanly severe and cruel; on Federal territory he would have been sentenced to at most six months imprisonment, and have come under the Christmas amnesty of 1949; with an appropriate level of sentence, he could have been amnestied in the Soviet occupation zone too, in accordance with Circular No. 143/51 from the Minister of Justice there. He had however been particularily severely punished as a "bourgeois" and former officer. The observation in the grounds of judgment that he had not shown enough sense of responsibility to repent of his deed but sought to escape reponsibility, is said to be inaccurate; he had fled to Federal Territory only because "he was to be forced to work in the uranium mines".

The complainant feels that his fundamental rights according to Articles 3 and 33 Basic Law have been infringed through the order for enforcement of sentence on Federal Territory. In particular, he regards enforcement of a judgment sentencing someone in absentia to prison as inadmissible.

3. B's conviction is based on the following facts and circumstances:

On 24 June 1949 B., his fiancé and their child were driving in a private car of vehicle hirer Sch. to Zwickau and Meerane. Though B. had only a driving permit for light motorcycles and had no driving licence for private cars, he himself drove on the return journey, as far as a filling station in Reichenbach. While he was paying for petrol there, Sch. drove the vehicle backwards into the filling-station driveway as far as the pump; there it was some one and a half metres in front of a lorry. While, after taking petrol, Sch. was looking for the petrol tank cap, which was missing, B. got into the car and operated the starter and the accelerator. However, since reverse gear was still engaged, the vehicle leapt backwards, crushing a worker standing between it and the lorry, who died of his injuries the following day.

B. was exhaustively interrogated on 30 June 1949 by the District Municipal Police of the Directorate of the People's Police in Plauen, on 7 July 1949 by the District Judge in Plauen and on 11 July 1949 by the District Judge in Reichenbach. Following the last interrogation the arrest warrant against him was lifted since "given the accused's personal circumstances it seems unlikely that he would escape punishment by absconding"...

a) The Federal Ministry for Justice has pointed out that practice with the enforcement of Soviet zone penal judgments is based in principle on the conserved legal unity of Germany and treats verdicts of courts in the Soviet occupation zone as German verdicts. It is only where the constitutionality of the procedure is not guaranteed or considerable disadvantages would arise in connection with the proceedings or outside them for the person concerned, which would be in conflict with constitutional principles, or where mutual judicial assistance would contravene the purpose of a Federal Act, that enforcement was to be refused.

In general, this was to date the case only with political offences and in some areas of economic law.

In the view of the Federal Minister of Justice, the carrying out of proceedings in absentia does not necessarily conflict with constitutional principles.... The sentence in the case in point did seem severe; however, the complainant's guilt was also great...

b) The representative of the Federal Ministry for All-German Affairs stated that while a progressive development of courts in the Soviet zone into implementing organs of the political apparatus could be observed, purely criminal offences were at present still being judged by regular proceedings...

c) The Federal Ministry of Justice of Land Württemberg-Hohenzollern suspended enforcement pending decision of the consititutional complaint. It regards enforcement, the legal basis for which is contained in Para. 162 of the Judicature Act on intra-State judicial assistance, as justified...

II.

The constitutional complaint is admissible...(detailed arguments).

III.

However, the constitutional complaint is not justified:

1. There is no infringement of the fundamental right pursuant to Article 3 Basic Law. The differences in penal practice of different courts do not represent infringement of Article 3 Basic Law any more than do different interpretations of the law by different courts or authorities (BVerfG in JZ 52, 110) 1. Even within the Federal Republic itself, there is no uniform penal practice of courts (BGSt 1, 183). An individual criminal court is by Article 3 Basic Law merely bound to render judgment without respect to the person and not to make any arbitrary distinctions in allotting punishment. In the case in point there is nothing to suggest any such arbitrariness.

But if the penalty is not arbitrary as far as its amount is concerned, then reference to the amnesties is not capable either of establishing an infringement of the equality principle: full remission of sentence would not be in question according to Circular R 143/51 in force in the Soviet occupation zone, in view of the level of the penalty. Whether the complainant has applied to the authorities of the Soviet occupation zone for reduction of sentence by half is not clear. Even if this were admissible and justified according to the equality principle, the complainant would still have to serve at least one year's imprisonment. The enforcement so far provided for is therefore below the amount of penalty that would have to be served even given application of the Eastern zone amnesty in accordance with the equality principle.

The fundamental right to equality before the law is not infringed either by the fact that the complainant did not benefit from the Christmas amnesty of 1949, since it does not apply to judgments of courts in the Soviet zone. By the nature of things an amnesty, as an emanation of State sovereign power, can cover only penalties imposed by courts of the State giving the amnesty (cf. OGHSt 2, 253; OLG Hamm in MDR 1949, 700). The enforcement authority therefore acted entirely properly and did not infringe Article 3 Basic Law in ordering enforcement to be carried out despite the objections raised in that connection.

2. Nor did judgment in absentia infringe any fundamental right of the complainant. It should be noted in this connection that at the time judgment was rendered general instruction to judges No. 2 still applied in the British occupation zone, on the basis of Law No. 15 of the Military Government (Abl. Brit. Kontrollgebiet p.50); this did not simply rule out the carrying out of proceedings in absentia where a high penalty was threatened, but merely bound the department of public prosecutions by a directory provision to apply for proceedings in absentia to be carried out only in slight cases (detention, fine or confiscation). The Federal Ministry for Justice has rightly also pointed out that in other civilized countries proceedings in absentia are permitted where greater penalties are threatened. In particular, para.427 of the Austrian Code of Penal Procedure in the version of the announcement of 24 July 1945 from the Department of Justice allows such proceedings where they involve an offence or a felony punishable with a maximum of 5 years imprisonment.

In view of this legal position - particularly in German legal areas - it cannot be seen as an infringement of Article 104 Basic Law or Article 1 or 2 Basic Law for a sentence imposed in absentia of two years imprisonment to be enforced as such.

The complainant nevertheless claims that the decisive factor in his absence was the fact that he had to flee from the Soviet occupation zone because of a threat of forced labour in the uranium mines. If this claim is correct, then infringement of the fundamental right of Article 103 (1) Basic Law might arise in the carrying out of proceedings in absentia. When organs of a State authority compel a citizen to abscond by intentional arbitrary measures and then another organ of the same State authority opens proceedings against the fugitive in absentia, the official summons to the absent person gives an only apparent opportunity of defending himself personally before the court. In reality a fair hearing is being denied him. Enforcement of such a judgment, which infringes the constitutional principle of Article 103 Basic Law, would share in the infringement of the fundamental right since it would be what gave it full effect.

The oral hearing has however shown that the reason adduced by the complainant for his alleged flight was not present. In fact he had long contemplated leaving the Soviet occupation zone. On the other hand, he had for a long time not taken the alleged threat of forced labour in the uranium mines seriously. There is nothing to allow the conclusion that the statements made over a long period by the Labour Office in Reichenbach that the complainant would be dealt with and end up being sent to Aue had a serious basis, or that the complainant really took them seriously. Moreover, the complainant, when he applied for a residence permit, never gave any indications of his alleged personal danger in the Soviet occupation zone; on the contrary, he explicitly gave other reasons and guaranteed their correctness. The Federal Constitutional Court was not convinced that the complainant was induced to flee by the threat of forced labour in the uranium mines but instead that he carried out his old plan to leave the Soviet occupation zone immediately after he was let out of detention, precisely because he wished to escape punishment.

For these reasons refusal of a fair hearing through the carrying out of proceedings in absentia is not in question.

3. In view of the complainant's frivolous recklessness and the grave consequences of the deed, the sentence is not so cruel or severe as to violate Article 1 Basic Law.

4. In other respects too the criminal proceedings against the complainant, who was exhaustively and objectively interrogated in preliminary proceedings and able to express himself without duress, did not clash with constitutional principles. There is therefore no basis to take it that the Soviet zone penal proceeding or the verdict and sentence have directly infringed fundamental rights of the complainant or that the object of a Federal act or essential principles of law have been contravened. In particular, there is no violation of Art. 33 Basic Law either.

Accordingly the constitutional complaint must be dismissed as unjustified.

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