FEDERAL CONSTITUTIONAL COURT

- 2 BvR 1579/11 -

In the proceedings
on
the constitutional complaint

of Mr. D…

the First Chamber of the Second Senate of the Federal Constitutional Court

with the participation of Justices

President Voßkuhle,

Gerhardt,

Huber

on the basis of § 93b in conjunction with § 93a of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) in the version published on 11 August 1993 (Federal Law Gazette, Bundesgesetzblatt - BGBl I p. 1473)

unanimously decided on 5 November 2013:

R e a s o n s:

The constitutional complaint concerns the question whether the Federal Court of Justice complied with its constitutional duty to take into account the International Court of Justice’s case-law on the rights pursuant to Art. 36 of the Vienna Convention on Consular Relations.

1. The Federal Republic of Germany acceded to the Vienna Convention on Consular Relations, which was concluded on 24 April 1963 (Vienna Convention – VCCR, BGBl 1969 II p. 1585). Pursuant to Art. 36 sec. 1 VCCR, if a foreigner is detained, the authorities must notify the consular post of his home country without delay. The consular officers are entitled to contact the detainee and to arrange for his legal representation. Pursuant to Art. 36 sec. 1 letter b sentence 3 VCCR, the detainee has to be informed of these rights without delay.

To date, the International Court of Justice in The Hague has expressed its views on the possible domestic consequences of the violation of the duty to inform in two decisions (ICJ, LaGrand , Germany v. United States of America, Judgment of 27 June 2001, ICJ Reports 2001, p. 464; Case C oncerning Avena and O ther Mexican Natio n als , Mexico v. United States of America, Judgment of 31 March 2004, ICJ Reports 2004, p. 12). In essence, it held that Art. 36 sec. 1 VCCR creates individual rights that the receiving State must apply directly towards detainees. With a view to the legal consequences, it concluded that in cases where the detained person was not informed, the receiving State is obliged to ensure that there is a real possibility to review the conviction and sentence before state courts (cf. in more detail: Chamber Decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesve r fassungsgericht s – BVerfGK 9, 174 <177 and 178>).

2. The Regional Court sentenced the complainant, a Turkish national, for extortion causing death, concurrent with attempted robbery causing death, to a prison sentence of 11 years. The complainant appealed the decision on points of law. In the appeal proceedings he asserted via the complaint against procedural irregularities that he had not been informed pursuant to Art. 36 sec. 1 letter b sentence 3 VCCR prior to his interrogation by the police.

a) In its decision of 29 January 2003 (5 StR 475/02, juris), the Fifth Criminal Division of the Federal Court of Justice dismissed pursuant to § 349 sec. 2 of the German Code of Criminal Procedure (Strafprozessordnung – StPO) the complainant’s appeal as unfounded. The Federal Constitutional Court granted the ensuing constitutional complaint because the complainant’s right to a fair trial had been violated – the Federal Court of Justice had not sufficiently taken into account the case-law of the International Court of Justice – and reversed and remitted the decision (BVerfGK 9, 174 et seq.). In its decision of 25 September 2007 (Decisions of the Federal Court of Justice in Criminal Matters, Entscheidungen des Bundesgerichtshof e s in Strafsachen – BGHSt 52, 48 et seq.), the Fifth Criminal Division of the Federal Court of Justice dismissed the appeal once more, subject to the proviso that six months of the prison sentence be considered as executed. The Federal Constitutional Court again granted the ensuing – second – constitutional complaint against this decision (BVerfGK 17, 390 et seq.), since also the second appellate decision of did not take the requirements of the International Court of Justice sufficiently into account, and thus violated the complainant’s right to a fair trial. It reversed the decision and remitted the matter to another Criminal Division of the Federal Court of Justice.

b) In its decision of 7 June 2011, the Fourth Criminal Division of the Federal Court of Justice dismissed the complainant’s appeal as unfounded, subject to the proviso that six months of the prison sentence be considered executed (Strafverteidiger – StV 2011, pp. 603 et seq.). It held that the complaint against procedural irregularities which the complainant had lodged was unfounded. However, the court found that the fact that after his arrest, the complainant had not been informed by the police officers of his rights pursuant to Art. 36 sec. 1 letter b sentence 3 VCCR violated the law. The court held that the complainant was not excluded from asserting a violation of the duty to inform simply because he did not specifically object to the violation of Art. 36 VCCR, but instead to the fact that the information he had provided during his interrogation was used by summoning the interrogators as witnesses, which could violate §§ 136, 137 StPO. According to the principles established by the International Court of Justice in LaG r and , which have to be observed, a comprehensive review and reconsideration of the conviction and sentence, in which the violation of the Convention is taken into account, must be possible (ICJ, LaGrand , loc. cit., n. 128). According to the court, this review may not be excluded because of a failure to raise objections required by national procedural law (ICJ, LaG rand , loc. cit., n. 90). Nevertheless, the failure to inform did not lead to inadmissibility of the evidence, since the complainant did not suffer any prejudice through this in the further proceedings. While one could not rule out that the evidence had become inadmissible, the International Court of Justice’s case-law in Avena stipulated that one had to examine in every case whether the person suffered actual prejudice in further proceedings (ICJ, A v ena , loc. cit. n. 121 et seq.). The court held that this should be done by using the so-called “balancing approach” (Abwägungslehre ) developed by the Federal Court of Justice. According to this approach, one has to balance the interference with the legal position of the accused that was caused by the procedural violation with the state’s interest in criminal prosecution. In doing so, one must take into account both the protective purpose of the violated rule and the circumstances, background, and effects of the violation of law in the individual case. Looking at the aspects that had already been considered in the balancing of the circumstances and effects of the violation, the court held that it could be ruled out that the decision was in other ways based on the failure to inform. According to the court, there were no indications for the decision being based on the violation, and the appeal had not provided any evidence for this either. The court ruled that the claimant could receive no compensation for the violation of the obligation to inform pursuant to Art. 36 sec. 1 letter b sentence 3 VCCR under the so-called “execution approach” (Vollstreckungslösung ). Both the balancing regarding the inadmissibility of evidence and the examination of whether the decision was based on the violation of the Vienna Convention of Consular Relations had shown that the complainant had not suffered any prejudice in this specific case. However, the court held that since the judicial authorities were responsible for delaying the procedure, six months of the prison term had to be declared as executed.

II.

In his constitutional complaint the complainant asserts a violation of his rights under Art. 2 sec. 1 in conjunction with Art. 20 sec. 3 (fair trial), Art. 101 sec. 1 sentence 2 and Art. 3 sec. 1 of the Basic Law (Grundgesetz – GG) (prohibition of arbitrariness).

The complainant asserts that the “balancing approach” cannot be used in the present case, but that a violation of Art. 36 sec. 1 letter b sentence 3 VCCR must generally lead to the inadmissibility of evidence. Furthermore, he claims that the Federal Court of Justice took several aspects which are not in accordance with the case-law of the International Court of Justice, into consideration to his detriment. According to him, the balancing was arbitrary and meaningless and its only purpose was to reject the inadmissibility of the evidence. In any case, he should have been awarded compensation for the violation of Art. 36 sec. 1 letter b sentence 3 VCCR. In addition, he claims that Art. 101 sec. 1 sentence 2 GG was violated. He states that, pursuant to § 132 of the Law on the Constitution of Courts (Gerichtsve r fassungsgesetz – GVG), the Fourth Criminal Division should have brought the case before the Grand Criminal Division since, with regard to awarding compensation, it obviously deviated from the case-law of the Fifth Criminal Division. The case should also have been brought before the United Grand Divisions of the Federal Court of Justice, because the Fifth Civil Division considers a violation of the duty to inform pursuant to Art. 36 sec. 1 letter b sentence 3 VCCR a “fundamental procedural error”.

III.

The constitutional complaint is not admitted for decision because the requirements for admission are not met (§ 93a sec. 2 BVerfGG). The constitutional issues addressed in the constitutional complaint have already been clarified by the case-law of the Federal Constitutional Court or can be easily answered on the basis of its previous case-law (BVerfGK 9, 174 <186>; 17, 390 <395>). The admission of the constitutional complaint is also not deemed appropriate for the enforcement of the complainant’s fundamental rights because it is in any case unfounded (cf. Decision of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 90, 22 <25 and 26>).

1. The complainant’s right to a fair trial (Art. 2 sec. 1 in conjunction with Art. 20 sec. 3 GG) is not violated.

1. The regular courts are obliged to take the case-law of the International Court of Justice in the area of consular law into consideration in their decisions. This obligation derives from the principle that the Basic Law is open to public international law, in conjunction with the judicature being bound by law and justice (BVerfGK 9, 174 <191>; 17, 390 <397>). The regular court must take notice of the relevant case-law and consider it (BVerfGK 17, 390 <398 and 399>). However, a violation of the constitutional duty of consideration can only be found if the case-law of the International Court of Justice has been understood in a clearly erroneous way, as its judgments usually concern other legal systems, and it is not always easy to decide how to apply its determinations in the German legal system (BVerfGK 17, 390 <398 and 399>).

In light of the above, a complainant can in particular challenge the disregard of the duty of consideration as a violation of his fundamental right to a fair trial pursuant to Art. 2 sec. 1 GG in conjunction with the principle of the rule of law (BVerfGK 17, 390 <399 and 400>). In conjunction with the general freedom of action of Art. 2 sec. 1 GG, the principle of the rule of law guarantees the right of the accused to a fair trial and due process in criminal proceedings (cf. BVerfGE 38, 105 <111>; 86, 288 <317 and 318>; 109, 13 <34>; 122, 248 <270 et seq.>; 130, 1 <25>). In this context, a fair trial is shaped not only by the provisions of the Code of Criminal Procedure, but also by the rules of public international law, as long as they are sufficiently precise, i.e. “self-executing”, to be directly applicable by the law enforcement authorities. This is the case regarding Art. 36 sec. 1 VCCR (cf. BVerfGK, 9, 174 <189>; 17, 390 <399>).

Like other federal statutory law, the regular courts have to observe and apply the applicable public international law in a methodologically justifiable way (cf. BVerfGE 111, 307 <317>; BVerfGK 9, 174 <189>; 17, 390 <399>). Misjudging the scope of protection of a violated procedural provision can violate the right of the accused to a fair trial just as much as overstating the requirements for a prohibition of the use of unlawfully obtained evidence (BVerfGK 9, 174 <189>; 17, 390 <399>).

2. Following these criteria, the Federal Court of Justice sufficiently fulfilled its duty to consider the International Court of Justice’s relevant case-law regarding the consequences of a violation of Art. 36 sec. 1 letter b sentence 3 VCCR in the challenged decision. It took notice of the requirements following from the International Court of Justice’s case-law and considered them in detail. The fact that under the German law of criminal procedure, an appeal on points of law pursuant to § 337 StPO can be based directly on the failure to inform as required by public international law, ensures that the violation of public international law does not tend to remain without consequences (aa). Therefore, it is not necessary to assume that because of the failure to inform, the evidence is generally inadmissible (bb), or that the procedural error has to be compensated via the “execution approach” (cc).

aa) Under German criminal procedural law, the failure to inform as required by public international law constitutes a procedural error on which an appeal on points of law pursuant to § 337 StPO can be based. In general, this already ensures that the violation of public international law does not remain “without consequences” (cf. Schomburg/Schuster, Neue Zeitschrift für Strafrecht – NStZ 2008, p. 593 <594>) within the meaning of the case-law of the International Court of Justice. Public international law does not provide in detail how the legal consequences of the failure to inform have to look (1). The requirements of the International Court of Justice are thus met if the failure to inform as required by public international law is recognised as a procedural error which mandates a re-examination of the entire criminal decision during a criminal procedural appeal on points of law (2).

(1) The Vienna Convention on Consular Relations does not provide specific requirements regarding the legal consequences of a failure to inform (Paulus/Müller, StV 2009, p. 495 <496 and 497>; Schomburg/Schuster, NStZ 2008, p. 593 <594>). The International Court of Justice did, however, clarify that a violation of public international law must be followed by adequate reparation (ICJ, Avena , loc. cit., n. 119: “rep a ration i n an adequate form ”). According to the Court it is, however, the task of the national courts to review the facts and in particular the prejudice resulting from a violation of the Vienna Convention of Consular Relations, and to determine the appropriate legal consequences. International law does not mandate the revocation of the criminal conviction (cf. ICJ, Avena , loc. cit., n. 122, 124). In some cases, a formal apology may already constitute adequate reparation (ICJ, LaGrand , loc. cit., n. 63, 125). However, in cases like here, where the affected parties were sentenced to long-term imprisonment, this is deemed insufficient. In such cases, it is necessary to review and reconsider both the conviction and the sentence (ICJ, LaGrand , loc. cit., n. 125: “ review and reconsideration of the conviction and se n tence by tak ing account of the vi o lation of the rights set forth in the c onviction“ ). In so doing, one must examine whether the violation of Art. 36 sec. 1 VCCR means that the accused experienced actual prejudice during the criminal trial (ICJ, Avena , loc. cit., n. 121: “ with a view to ascertaining whet h er in each case the violation of Art. 36 committed by the compe tent authorities caused actual prejudice to the defendant in the process of administr ation of crim i nal justice” ).

(2) These requirements of the International Court of Justice regarding the interpretation of Art. 36 sec. 1 VCCR can be readily integrated through a methodologically justifiable interpretation into the system of appeals on points of law in criminal procedures (cf. BVerfGE 111, 307 <317>; BVerfGK 9, 174 <189>; 17, 390 <399>).

According to the case-law of the International Court of Justice, Art. 36 sec. 1 letter b sentence 3 VCCR creates an individual right of the affected person (ICJ, LaGrand , loc. cit., n. 77). Therefore, Art. 36 sec. 1 letter b sentence 3 VCCR must create a right of the accused that establishes his procedural status (BerfGK 9, 174 <194>; 17, 390 <402>) and allows for “review and reconsideration ” of the decision. This is accomplished by allowing a failure to inform as a relative ground for appeal on points of law in the appeal proceedings (cf. BGHSt 52, 110 <113>; Paulus, StV 2003, p. 57 <59>; Burchard, Juristenzeitung – JZ 2007, p. 891 <893 and 894>; Esser, Juristische Run d schau – JR 2008, p. 271 <277>; Kreß, Goltdammer’s Archiv für Strafrecht – GA 2007, p. 296 <306 and 307>; Paulus/Müller, StV 2009, p. 495 <498>; Weigend, StV 2008, p. 39 <43>). Thus, the violation of Art. 36 sec. 1 letter b sentence 3 VCCR allows for the complete criminal judgment, conviction and sentence to be reviewed in the appeal and to be reconsidered in light of the failure to inform (cf. BGHSt 52, 110 <113 and 114>).

Like any other procedural error, a failure to inform can be asserted by lodging a complaint against procedural irregularities pursuant to § 344 sec. 2 sentence 2, alternative 1 StPO (Esser, JR 2008, p. 271 <277>), which has to be justified pursuant to § 344 sec. 2 sentence 2 StPO (cf. BGHSt 52, 110 <111>). This does not conflict with the fact that procedural obstacles that impede the assertion of a procedural error have to be examined in light of the principle of effectiveness of Art. 36 sec. 2 VCCR (Paulus/Müller, StV 2009, p. 495 <498>). It must be possible for the affected parties to claim a violation of Art. 36 sec. 1 VCCR in court proceedings, and this guarantee may neither be threatened in its substance by national procedural law, nor be formally excluded (ICJ Avena , loc. cit., n. 134; cf. Esser, JR 2008, p. 271 <273>).

The contested decision meets these requirements, because it treated the complaint against procedural irregularities – despite concerns – as admissible.

bb) Owning to the specific circumstances of the case, the Federal Court of Justice considered the inadmissibility of the evidence in its “review and reconsideration” of the criminal judgment (cf. ICJ, Avena , loc. cit., n. 127). It is not objectionable that it used the “balancing approach” in this context (1). The requirements for the inadmissibility of the evidence were not overstated (2). This also applies with regard to the absence of the defence counsel during at the second police interrogation (3), and the requirement of a causal link between the failure to inform and the possible prejudice (4).

(1) The legal consequences resulting from a violation of the duty to inform are not specified under constitutional law (cf. BVerfGK 4, 283 <285>; 9, 174 <196>; 17, 390 <404>). The International Court of Justice, too, left the legal consequences of a violation to the discretion of the prosecuting country (ICJ, LaGrand , loc. cit. n. 125; Avena , loc. cit., n. 120 et seq., 127, 141; cf. Burchard, JZ 2007, p. 891 <893>; Esser JR 2008, p. 271 <271 and 272>; Weigend, StV 2008, p. 39 <42>), as long as the review and reconsideration are overall sufficiently “effective” (ICJ, Av ena , loc. cit., n. 138). It did not demand a restit u tio in integrum in the sense that the criminal judgment had to be completely reversed and the case completely retried (ICJ, Avena , loc. cit., n. 121 et seq.: Esser, JR 2008, p. 271 <273>; Weigend, StV 2008, p. 39 <42, footnote 51>). Public international law does not demand mandatory inadmissibility of the evidence, meaning inadmissibility solely because of the failure to inform, and independent of the existence of prejudice caused thereby (BVerfGK 9, 174 <195>; Paulus, StV 2003, p. 57 <58, 59>; Kreß, GA 2007, p. 296 <304>; Esser, JR 2008, p. 271 <275>; Paulus/Müller, StV 2009, p. 495 <498>; Schomburg/Schuster, NStZ 2008, p. 593 <594>; Gless/Peters, StV 2011, p. 369 <372>). Rather, it is sufficient if the possibility to correct the judgment exists when it can be proven that the failure to inform was causal for the outcome of the case (ICJ, Avena , loc. cit., n. 121 et seq., Weigend, StV 2008, p. 39 <42, footnote 51>).

The Federal Court of Justice is therefore free to resort to its case-law on the consequences of violations of the duty to inform, according to which not every prohibition of the gathering of evidence results in mandatory inadmissibility of the evidence. The decision for or against the inadmissibility should rather be reached by balancing the opposing requirements and objectives of the rule of law (BVerfGK 9, 174 <196>; 17, 390 <402 and 403>; cf. also BVerfGE 122, 248 <257 and 258>; 130, 1 <29, 40>). In view of the above, the complainant’s objection that the “balancing approach” is not applicable in the present case because a violation of Art. 36 sec. 1 letter b sentence 3 VCCR must always result in inadmissibility of the evidence, cannot be upheld.

(2) Rather, it is for the regular courts to determine the consequences of a failure to inform (BVerfGK 9, 174 <196>). The question concerning the inadmissibility of evidence in the specific case is therefore a question concerning the application of ordinary law, which generally has to be answered by the regular court (cf. BVerfGK, 9, 174 <197 and 198>; 17, 390 <405>). However, if the requirements for inadmissibility of unlawfully obtained evidence are set too high, this could impair the right of the accused to a fair trial (BVerfGK 9, 174 <189>; 17, 390 <399>).

It has neither been submitted nor is it otherwise apparent that the Federal Court of Justice overstated the requirements regarding the inadmissibility of evidence. In particular, there are no constitutional or public international law concerns regarding the fact that the court took into account that the complainant was sufficiently informed pursuant to § 136 sec. 1, § 163a StPO. The two kinds of information differ because Art. 36 sec. 1 VCCR – unlike § 136 sec. 1 StPO – does not tie the duty to inform to the beginning of the interrogation of the accused, but to his arrest (BVerfGK 9, 174 <196>). Furthermore, the International Court of Justice has stressed that the information pursuant to Art. 36 sec. 1 letter b sentence 3 VCCR does not always have to take place directly upon the arrest (ICJ, Avena , loc. cit., n. 85: “ neither the terms of the Convention as normally understood nor its o bject and purpose suggest that ‘wit h out delay’ is to be underst ood as ‘ immediately upon arrest and before interrog a tion’”) or that they must precede an interrogation of the accused (ICJ, Avena , loc. cit., n. 87: “ cannot be interpreted to signify that the provision of such information must necessar i ly precede any interrogation so that the commencement of i n terrogation before the information is gi v en would be a breach of Art. 36” ). The two kinds of information are therefore not of equal importance and value (cf. Kreß, GA 2007, p. 296 <305>; Esser, JR 2008, p. 271 <275 and 276>; Weigend, StV 2008, p. 39 <42>). Instead, when deciding about the inadmissibility of evidence because of a failure to inform pursuant to Art. 36 sec. 1 VCCR, the necessary comprehensive assessment can include that the accused had been correctly informed pursuant to § 136 sec. 1, § 163a StPO.

(3) The fact that the Federal Court of Justice did not take into account that the second police interrogation of the complainant happened “without legal counsel”, is also no cause for complaint. Art. 36 sec. 1 VCCR does not protect the affected person’s freedom to testify, but solely protects the possibility to engage a defence counsel via the help of consular assistance (BGHSt 52, 110 <116>; Esser, JR 2008, p. 271 <275>). According to the International Court of Justice’s case-law, it is admissible to first interrogate the affected person without having informed him or to conduct the interrogation – after such information – before contacting the consulate (ICJ, Avena , loc. cit., n. 87 and 88; Kreß, GA 2007, 296 <306>; Walter, JR 2007, p. 99 <100 and 101>). This is because it is not the responsibility of the consular staff to provide legal services themselves, but to visit the affected person, to speak with him, and to help him find a defence counsel (ICJ, Avena , loc. cit., n. 85).

At the time of the second interrogation by the police, the complainant already had a defence counsel, who he had already consulted. It ultimately remains unclear why this counsel was not present during the interrogation. However, at this time the protective purpose of the duty to inform was fulfilled, so that the complainant could not have suffered prejudice within the meaning of the case-law of the International Court of Justice (Reich, Überlange Verfahrensdauer und andere Ver fahrensfehl er i m Stra f verfahren unter Berücksichtigung der Vollstreckungslösung des Großen Senats für Strafsachen , 2011, p. 212).

(4) It is also not objectionable that, according to the German law of criminal procedure, the annulment of the criminal judgment depends on the judgement being based on the procedural error.

The International Court of Justice, too, not only demands actual prejudice to the affected person, but requires the determination of a causal link between this prejudice and the violation of public international law (cf. ICJ, Avena , loc. cit., n. 122 and 123, 138: “in the causal sequence of events ” or “the possible prejudice caused by that vi o lation ”, cf. Kreß, GA 2004, p. 691 <697 and 698>). If this link is missing, one cannot object to the fact that – as in the appealed decision – the failure to inform remains without procedural sanctions. The International Court of Justice is explicit in that it does not require that every violation of international law must be sanctioned (ICJ, A v ena , loc. cit., n. 139: “whatever may be the actual outcome of such review and reco n sideration ”).

The fact that the Federal Court of Justice integrated the prejudice and the causal link into its consideration does not indicate a violation of these requirements and the right to a fair trial.

cc) That the complainant was not awarded compensation under the “execution approach” (cf. BGHSt. 52, 124 et seq.) cannot violate his right to a fair trial: The use of the “execution approach” would not comply with the requirement that the failure to inform must lead to sufficient reparations. In cases like the present one, in which the affected person was convicted to a long prison sentence, it is necessary to reassess the conviction and sentence (ICJ, LaGrand , loc. cit., n. 125: “review and reconsider a tion of the conviction and sentence” ). In contrast, the “execution approach” keeps the sentence appropriate to the injustice and guilt, and does not transform it into a reduced sentence for compensatory reasons (cf. BGHSt 52, 124 <141>); the sentence – and especially the conviction – remain untouched (Paulus/Müller, StV 2009, p. 495 <500 and 501>; Esser, JR 2008, p.271 <277>; Gless/Peters, StV 2011, p. 369 <370>; Reich, loc. cit., p.208 and 209). Thus, using the “execution approach” does not let one review the criminal sentence in an individual case in its entirety and to reconsider the questions regarding guilt and sentencing. However, “r eview and reconsideration ” are specifically intended to ensure that the court examine in the appeal proceedings what influence the failure to inform had on the judgment (Simma/Hoppe, Tulane Journal of International and Comparative Law 14 <2005>, p. 7 <36>; Paulus/Müller, StV 2009, p. 495 <501 and 502>).

2. The constitutional complaint is also not successful in so far as the complainant alleges a violation of Art. 101 sec. 1 sentence 2 GG. A violation against Art. 101 sec. 1 sentence 2 GG can be based on the fact that the appellate court failed to submit the case to the Grand Criminal Division or the United Grand Divisions pursuant to § 132 sec. 2 GVG (BVerfG, Decision of the First Chamber of the Second Senate of July 17, 2007 – 2 BvR 1255/07 –, NStZ 2008, p. 39 with further references). However, the complainant does not demonstrate that the factual requirements for a so-called “deviation referral” (Divergenzvorlage ) were met. In as far as he claims that the appealed decision deviated from the decision of the Fifth Criminal Division of 25 September 2007 (BGHSt 52, 48 et seq.), he does not address that the Federal Constitutional Court reversed this decision pursuant to § 95 sec. 2 BVerfGG, so that it no longer has any legal effect and, more importantly, can no longer be the basis for a deviation referral (cf. Hannich, in: Karlsruher Komme ntar zur StPO , 7th ed. 2013, § 132 GVG, n. 8). Regarding the alleged deviation of the contested decision from the decision of the Fifth Civil Division (BGH, decision of May 6, 2010 – V ZB 223/09 –, Praxis der Freiwi l ligen Gerichtsbarkeit – FGPrax 2010, p.212), the complainant does not demonstrate that this decision conflicts with the contested decision. The duty to inform at issue in this decision did not result from Art. 36 sec. 1 letter b sentence 3 VCCR but was – since the affected person came from Sierra Leone – solely based on the consular agreement between the Federal Republic of Germany and the United Kingdom and Northern Ireland (BGBl II 1957, p. 285). This agreement does not explicitly require a duty to inform like in Art. 36 sec. 1 letter sentence 3 VCCR.

3. Pursuant to § 93d Sec. 1 sentence 3 BVerfGG, no additional reasons are given.

This decision cannot be appealed.