VGH Baden-Württemberg, Judgment of June 19, 2019 – 12 S 1730/18
According to the German Nationality Act, anyone who seeks naturalization into the German state must not have been criminally convicted due to an unlawful act. This applies to both German and foreign judgments, provided that the act is considered a criminal offense in Germany, the conviction was pronounced in a lawful trial, and the sentence is proportionate. If these conditions are met, the criminal conviction will not be further considered in the naturalization process.
In the present case, a naturalization applicant filed an appeal because his application for naturalization and the subsequent lawsuit were rejected due to a criminal conviction in Turkey, which had sentenced him to nine years in prison. The Baden-Württemberg Higher Administrative Court confirmed this view because the applicant was unable to convincingly demonstrate that the imposed sentence was disproportionate.
Facts of the Case:
The plaintiff sought naturalization into the German state. He was born in Turkey in 1950 and had been permanently residing in Germany since 1973. Since 1988, he had held a settlement permit. The plaintiff was married and had three adult children, the oldest of whom had been naturalized. His wife was a Turkish national.
Plaintiff Successfully Participates in B1 Test and Naturalization Test
In July 2012, the plaintiff applied for naturalization. He possessed a Turkish national passport valid until February 2, 2013. In the administrative proceedings, the plaintiff submitted a medical certificate dated January 9, 2013, stating that due to a long-standing concentration weakness following polytrauma, he was unable to participate in a German course and that such participation would not be promising. On March 22, 2013, the plaintiff successfully passed the oral examination for German language level B1. On September 3, 2013, the plaintiff was certified to have passed the „Living in Germany“ test and thus met the requirements under Section 10 (1) Sentence 1 No. 7 of the Nationality Act.
Plaintiff’s Turkish Passport Not Renewed Due to Criminal Proceedings in Turkey
In a letter dated December 19, 2013, the plaintiff’s son explained that in February 2013, he had accompanied his father to the Turkish Consulate General in Stuttgart, where they were informed that the passport would no longer be renewed or reissued due to ongoing criminal proceedings in Turkey. His father was the sole survivor of a serious traffic accident in Turkey in 2005 that resulted in several deaths. In 2012, his father was questioned by the District Court of Reutlingen as part of a mutual legal assistance procedure and, on the advice of his lawyer, made no statements.
Defendant Rejects Naturalization Due to Criminal Proceedings; Plaintiff Files Lawsuit for Naturalization
By order dated March 25, 2014, the Reutlingen District Office rejected the naturalization application. The plaintiff filed an objection against this on April 7, 2014, which was dismissed by the Tübingen Regional Administrative Authority on January 28, 2016.
On February 26, 2016, the plaintiff filed a lawsuit with the Sigmaringen Administrative Court.
Following a judicial order, the plaintiff submitted the German translation of an excerpt from a Turkish criminal court decision and, during the oral hearing on May 16, 2018, presented the complete decision (Karar) of the Salihli Assize Court dated December 6, 2012. According to this decision, he was convicted under Article 455(2) of the Turkish Penal Code 765 for negligence and carelessness resulting in death and injury, sentenced to nine years in prison, and fined 489 Turkish Lira. The Assize Court found it proven that on January 27, 2005, at around 10:00 PM, the plaintiff attempted to overtake the truck in front of him on Salihli D 300 road with his vehicle and collided with the truck driven by the deceased N.G., which was traveling in the opposite lane. As a result, the driver of the oncoming truck lost control of the steering wheel and collided with another truck, driven by the deceased M.Y., which was traveling behind the plaintiff from Kula to Usak, and subsequently with a passenger bus driven by the deceased A.A., which was also traveling from Kula to Usak. The Assize Court further found that the plaintiff was fully responsible for causing the accident, which resulted in the death of five people and the injury of forty others.
The plaintiff argued that the conviction in this decision was disproportionate and therefore should not be considered. He claimed that the sentence represented an unjustifiable deviation from the domestic principles of sentencing, particularly in cases of negligent homicide. The maximum penalty for negligent homicide in Germany is five years imprisonment or a fine (Section 222 of the German Penal Code). In the case of a first-time conviction, the sentencing guidelines in Germany would likely result in a suspended sentence or, at most, a sentence slightly above the two-year threshold for suspension.
The defendant opposed the lawsuit, arguing that the plaintiff’s criminal conviction must be considered under Section 12a(2) Sentence 1 of the Nationality Act. The defendant maintained that it was not sufficient to assume a proportionate sentence only if a German court had imposed a similar sentence in the specific case. The defendant emphasized that the wording of Section 12a(2) of the Nationality Act requires not just an appropriate, but a proportionate sentence. The internal structure of the provision also argued against the plaintiff’s view. If a proportionate sentence could only be assumed if a German court had imposed a comparable sentence, there would be no need to separately specify the domestic criminality of the act. Even if the aforementioned view were accepted, the sentence determined through a hypothetical examination would need to be considered. It would contradict the values expressed in the Nationality Act if a legally sanctioned crime were not considered at all. The Turkish Penal Code differentiates—unlike the German Penal Code—between negligent homicide of one person and negligent homicide of multiple persons at the level of the offense. The Turkish Penal Code provides for a sentence of up to five years imprisonment for the negligent homicide of one person and up to ten years imprisonment for the homicide of multiple persons. The mere fact that the maximum penalty under Turkish law is twice as high as that under Section 222 of the German Penal Code does not constitute a disproportionate sentence. It must also be taken into account that the killing of another human being violates the highest legal interest. The fact that the killing of multiple people increases the gravity of the offense and that this increased gravity is punishable under Turkish law by up to ten years imprisonment does not make the sentence disproportionate.
First Instance Administrative Court Dismisses the Lawsuit as Unfounded
By judgment dated June 20, 2018, the Administrative Court dismissed the lawsuit, reasoning primarily that the negligent homicide in traffic, as adjudicated in Turkey, is punishable under German law pursuant to Section 222 of the German Penal Code. Under Section 46(1) No. 4 of the Federal Central Register Act, it would only be expunged after fifteen years, so it must still be considered under Section 12a(2) Sentence 2 of the Nationality Act. It also does not remain out of consideration under Section 12a(1) Sentence 1 in conjunction with Sentence 2(3) of the Nationality Act due to its severity and type.
The fact that the judgment was rendered in the plaintiff’s absence did not make the proceedings in Turkey unlawful. This would only be the case if the plaintiff had not been informed about the conduct and conclusion of the proceedings and had no opportunity to defend himself or be heard after learning of the proceedings. However, the plaintiff was represented by a lawyer during the proceedings and had the opportunity to make a statement before the Reutlingen District Court, but exercised his right to remain silent. The findings made by the Turkish criminal court were based on witness statements and expert opinions on the course of the accident, as well as protocols from the crime scene and examinations of the deceased. At the request of the plaintiff’s lawyer in Turkey, the Turkish criminal court also arranged for a review of the expert reports. In light of these facts, there was no indication that the Turkish criminal court had reached its conclusion in an unlawful manner or that the plaintiff was fully responsible for the accident.
The court also found that the imposed sentence was not disproportionate under Section 12a(2) Sentence 1 of the Nationality Act. The sentence range for negligent homicide in Turkey under Penal Code No. 765 of four to ten years was not disproportionate in its absolute height. That other legal systems impose significantly higher sentences for negligent homicide than Germany does not, given all circumstances, appear wholly unjustified and therefore disproportionate. Furthermore, based on the findings in the Turkish criminal judgment, there was no indication of an unjust sentence. According to Article 455 of the Turkish Penal Code No. 765, an increase in the penalty is warranted if more than one person has died or if there are severe injuries in addition to a death. Given that the accident resulted in five deaths and forty injuries, approaching the upper limit of the ten-year sentence range does not seem disproportionate.
Plaintiff Files an Appeal
Against the judgment delivered on July 4, 2018, the plaintiff filed an appeal on July 26, 2018, and substantiated it on August 22, 2018, as follows: The conviction by the Turkish criminal court was to be considered absolutely disproportionate and therefore inadmissible in the naturalization process. Even after his conviction by the Salihli Assize Court, the plaintiff had tried, through his consulate, to apply for the extension of his Turkish passport and for release from Turkish citizenship. However, this was refused, citing “Ankara.”
The plaintiff requested that the judgment of the Sigmaringen Administrative Court dated June 20, 2018, be amended and that the defendant be obliged, by annulling the Reutlingen District Office’s decision of March 25, 2014, and the Tübingen Regional Administrative Authority’s objection decision of January 28, 2016, to naturalize him; alternatively, that the defendant be obliged, by annulling the Reutlingen District Office’s decision of March 25, 2014, and the Tübingen Regional Administrative Authority’s objection decision of January 28, 2016, to decide anew on the naturalization application of July 16, 2012, in accordance with the court’s legal opinion.
The defendant requested that the appeal be dismissed.
The plaintiff further argued that under Section 54(1) Sentence 3 of the Law on International Mutual Assistance in Criminal Matters, in the execution of a foreign judgment in a criminal matter, the sanction set by the foreign judgment is decisive for determining the severity of the sanction. If the imposed sanction exceeds the maximum penalty provided for under German criminal law, it may only be enforced up to the limit of the maximum penalty provided for under German criminal law. If such a sanction, determined by a foreign judgment, may be considered in a case involving a significant intervention like criminal enforcement, then it must certainly be considered in the context of naturalization into the German state.
Judgment of the Baden-Württemberg Higher Administrative Court
The Baden-Württemberg Higher Administrative Court dismissed the plaintiff’s appeal, which was admissible, particularly having been properly filed and substantiated in accordance with Section 124a(3) of the Administrative Court Procedure Code, due to its lack of merit. The Higher Administrative Court ruled that the decision of the Reutlingen District Office dated March 25, 2014, and the objection decision of the Tübingen Regional Administrative Authority dated January 28, 2016, were lawful. Furthermore, it ruled that the plaintiff had neither a claim to naturalization into the German state nor a claim to a new decision on his naturalization application dated July 16, 2012, in accordance with the court’s legal opinion (§ 113(5) of the Administrative Court Procedure Code). Both the claim to naturalization under Section 10 of the Nationality Act (I.) and discretionary naturalization under Section 8(1) of the Nationality Act (II.) failed because the plaintiff had been convicted of a criminal offense (§ 10(1) Sentence 1 No. 5, § 8(1) No. 2 of the Nationality Act), and this foreign conviction was to be taken into account under Section 12a(2) of the Nationality Act. A discretionary decision by the authority as to whether the crime should be disregarded due to special circumstances of the individual case (§ 12a(2) Sentence 3 in conjunction with Sentence 1(3) of the Nationality Act) was not possible.
The Appellate Court Also Found No Claim to Naturalization
The plaintiff was not entitled to naturalization under Section 10 of the Nationality Act. According to Section 10(1) Sentence 1 of the Nationality Act, a foreigner who has lawfully resided in the country for eight years and is capable of acting under Section 37(1) Sentence 1 of the Nationality Act or is legally represented must be naturalized upon application if they meet the conditions listed in Section 10(1) Sentence 1 Nos. 1 to 7 of the Nationality Act, and no exclusion ground under Section 11 of the Nationality Act exists.
However, the plaintiff’s naturalization was precluded by Section 10(1) Sentence 1 No. 5 of the Nationality Act, which requires that the foreigner not have been convicted of a criminal offense.
By decision (Karar) of the Salihli Assize Court dated December 6, 2012, the plaintiff was convicted under Article 455(2) of the Turkish Penal Code 765 of March 1, 1926, for negligence and carelessness resulting in death and injury, sentenced to nine years imprisonment, and fined.
Furthermore, the conditions for considering this foreign conviction were met. According to Section 12a(2) Sentence 1 of the Nationality Act, foreign convictions must be considered if the act is punishable in Germany (1), the conviction was pronounced in a lawful trial (2), and the sentence is proportionate (3).
The crime committed in Turkey is also relevant for naturalization in Germany
The act that led to the conviction abroad must also be punishable in Germany. For interpreting this requirement, Section 3(1) of the Law on International Mutual Assistance in Criminal Matters of June 27, 1994 (Federal Law Gazette I, p. 1537, last amended on August 27, 2017 – Federal Law Gazette I, p. 3295 – hereinafter: IRG) must be consulted, according to which extradition is only permissible if the act is also a criminal offense under German law or if it would be a criminal offense under German law if the facts were assumed to be similar (Berlit in GK-StAR, § 12a Rn. 64). However, according to the wording of the norm, it is not required that the conviction be for a deliberately committed crime, so that a conviction for a negligent act must also be considered.
This requirement was fulfilled by the plaintiff’s conviction. The Salihli Assize Court found it proven that on January 27, 2005, at around 10:00 PM, the plaintiff attempted to overtake the truck in front of him on the Salihli D 300 road with his vehicle and collided with the truck driven by the deceased N.G., which was traveling in the opposite lane. As a result, the driver of the oncoming truck lost control of the steering wheel and collided with another truck, driven by the deceased M.Y., which was traveling behind the plaintiff from Kula to Usak, and subsequently with a passenger bus driven by the deceased A.A., which was also traveling from Kula to Usak. The Assize Court further found that the plaintiff was fully responsible for causing the accident, which resulted in the death of five people and the injury of forty others.
The act adjudicated by the Assize Court met the elements of the crimes of negligent homicide under Section 222 of the German Penal Code and negligent bodily injury under Section 229 of the German Penal Code. According to Section 222 of the German Penal Code, a person who causes the death of another person through negligence shall be punished with imprisonment for up to five years or a fine. According to Section 229 of the German Penal Code, a person who negligently causes bodily harm to another person shall be punished with imprisonment for up to three years or a fine. Negligence occurs when a person commits an objective breach of duty that they could have avoided according to their subjective knowledge and abilities if this breach of duty objectively and subjectively caused the result (Federal Court of Justice, Judgment of November 13, 2003 – 5 StR 327/03 – juris Rn. 15; Fischer, StGB, 65th edition, § 15 Rn. 12a with references). The criminal act can be any action by the perpetrator that causes the death or injury of the victim (Fischer, ibid. § 222 Rn. 2 with references). The legal causality between a breach of care and the result is negated only if the same result would have occurred with compliant behavior (Fischer, ibid. § 222 Rn. 2a, referencing Federal Court of Justice, Decision of September 25, 1957 – 4 StR 354/57 – juris Rn. 7ff).
The plaintiff had negligently committed the aforementioned criminal offenses by initiating the overtaking maneuver on the Salihli D 300 road on January 27, 2005, based on the findings of the Turkish criminal court. According to Section 5(2) of the German Road Traffic Regulations (StVO), overtaking is only permitted when it is clear that there will be no obstruction to oncoming traffic during the entire maneuver. However, the plaintiff collided with an oncoming truck during his overtaking maneuver on January 27, 2005, whose driver then lost control of the steering wheel and subsequently collided with another truck and then with a passenger bus. As a result, several people were killed and injured. The „result“ would not have occurred with compliant driving behavior by the plaintiff.
The Rule of Law in Turkey Was Upheld
For a foreign conviction to be considered, it is also necessary that the conviction was pronounced in a lawful trial (§ 12a(2) Sentence 1 of the Nationality Act).
The standard for assessing the rule of law is mainly whether the criminal conviction, even considering different material and procedural norms, complies with the principles of the rule of law applicable in the European legal area, as enshrined in the European Convention on Human Rights (Article 6(2) and (3) – the right to a fair trial) (Hailbronner/Hecker in Hailbronner/Maaßen/Hecker/Kau, Nationality Law 6th edition, § 12a Rn. 19).
The reference point for the rule of law is the respective conviction. An interpretation that the minimum requirement of this examination is that the principles of the rule of law are upheld both generally in the state where the conviction took place and concerning the conviction in the specific case (as argued by Berlit, ibid. § 12a Rn. 67), is contradicted by the wording of the regulation. According to the wording, the examination of the rule of law extends to the specific conviction that is punishable in Germany but does not extend to whether the rule of law is generally upheld in other proceedings in the country concerned, for example, in court proceedings related to terrorism or separatism. The lack of recognition of a foreign state as a rule-of-law state or the frequent failure to uphold the minimum requirements of the rule of law in a state can be a significant indicator for assuming that the specific conviction was not pronounced in a lawful trial. However, the decisive factor is whether the generally recognized principles of the rule of law were observed in the specific proceedings (Geyer in Hofmann, Immigration Law, 2nd edition, § 12a Rn. 15).
Based on this, there were no indications that the decision (Karar) of the Salihli Assize Court dated December 6, 2012, would not comply with the principles of the rule of law applicable in the European legal area.
Regarding criminal judgments by courts in European Union member states, it can usually be assumed that they meet the minimum standards of the rule of law (see Federal Administrative Court, Judgment of April 19, 2018 – 2 C 59/16 – juris Rn. 15 – on the binding effect of foreign criminal judgments in disciplinary proceedings; Hailbronner/Hecker, ibid. § 12a Rn. 19). For criminal judgments by courts in countries that are not EU members, it must be reviewed based on the relevant norms and the corresponding application of law whether this judgment meets the rule of law standards in the specific case.
The foreign criminal judgment must have been issued in a proceeding that complied with the general right to judicial protection of the affected party, i.e., the right to access a judicial proceeding (see Federal Administrative Court, Judgment of April 19, 2018, ibid. Rn. 29). Article 6(1) of the ECHR guarantees this general right to judicial protection, which includes the right to be heard and the guarantee of a lawful judge. Among the minimum requirements to be observed in a conviction in a judicial proceeding is also the preservation of judicial independence, including the possibility to challenge biased judges (Berlit, ibid. § 12a Rn. 68.1; Geyer, ibid. § 12a Nationality Act Rn. 15).
The Plaintiff Was Also Granted the Right to Be Heard in Turkey
The affected person must have been granted the right to be heard in the foreign criminal proceedings. If the affected person has waived the opportunity to be heard in the foreign criminal proceedings, even though they had sufficient opportunity to do so, their right to be heard is considered „exhausted“ or consumed (see Federal Administrative Court, Judgment of April 19, 2018, ibid. Rn. 22). The accused also has the right under Article 6(3)(d) of the ECHR to question prosecution witnesses or have them questioned and to summon and question defense witnesses under the same conditions as prosecution witnesses. Changes in the composition of the court generally require a renewed questioning of witnesses (see Federal Administrative Court, Judgment of April 19, 2018, ibid. Rn. 31, referencing the European Court of Human Rights, Judgment of February 10, 2005 – 10075/02 – StV 2005, 475 Rn. 38).
For the binding effect of foreign judgments, it also matters whether the foreign criminal judgment was preceded by sufficient judicial fact-finding. It is essential that the subject matter of the dispute was examined at least once in a judicial proceeding with rule-of-law guarantees, regardless of whether this criminal proceeding took place domestically or abroad (see Federal Administrative Court, Judgment of April 19, 2018 – ibid. Rn. 21).
Finally, the minimum requirements of the rule of law include the presumption of innocence under Article 6(2) of the ECHR and the principle of „no punishment without law“ (Article 49(1) of the EU Charter of Fundamental Rights, Article 103(2) of the German Constitution; see Geyer, ibid. § 12a Rn.15). 6 Abs. 2 EMRK und der Grundsatz „keine Strafe ohne Gesetz“ (Art. 49 Abs. 1 der EU-Charta der Grundrechte, Art. 103 Abs. 2 GG; dazu Geyer aaO § 12a Rn.15).
The criminal judgment (Karar) of the Salihli Assize Court dated December 6, 2012, also observed these principles of the rule of law applicable in the European legal area, even considering different material and procedural norms in Turkey.
There have been extensive legislative changes and reforms in Turkey’s criminal and criminal procedure law since 2003, as well as training measures for judicial personnel, to address the publicly discussed shortcomings and deficiencies in the judiciary (such as inefficiency, unaccountability, and unpredictability) (Federal Foreign Office, Report on the asylum- and deportation-relevant situation in Turkey, as of November 2005, pp. 21f). The Turkish Code of Criminal Procedure (hereinafter: tStPO) was fundamentally reformed in 2004/2005. It was based on a translation of the German Code of Criminal Procedure, which came into force in 1926 and was subsequently amended by various reforms (see S. Tellenbach, Reforms in Criminal Law, Criminal Procedure Law, and Penal Enforcement Law, an initial overview of the Turkish reform laws of 2004; see also Rumpf, Introduction to Turkish Law, 2nd edition 2016, p. 341). The Turkish Penal Code was also completely revised in October 2004 by Law No. 5237 and came into force on April 1, 2005 (published in: The Turkish Penal Code Türk Ceza Kanunu, German Translation and Introduction by S. Tellenbach, according to the status of November 15, 2008; hereinafter cited as: tStGB 2004). The Turkish Penal Code No. 765 of March 1, 1926 (published in: The Turkish Penal Code Türk Ceza Kanunu, German Translation and Introduction by S. Tellenbach, 2nd edition 2001; hereinafter cited as: tStGB 1926) continues to apply only to detainees, defendants, and suspects if the provision of the law in force at the time of the offense is more favorable than the new Penal Code (Article 7(2) tStGB 2004; Federal Foreign Office, Report on the asylum- and deportation-relevant situation in Turkey, as of November 2005, p. 23).
The Turkish Code of Criminal Procedure and the applicable Penal Code guarantee, among other things, the following rule-of-law requirements in criminal proceedings:
The principle of lawful and natural judges (kanuni or tabii hakim) and judicial independence or judicial guarantees are protected by Article 138 of the Turkish Constitution (Federal Foreign Office, Report on the asylum- and deportation-relevant situation in Turkey, as of August 2012, p. 16, and Report on the asylum- and deportation-relevant situation in Turkey, as of May 2014, p. 18). Article 23 tStPO ensures that a judge who has participated in previous proceedings is excluded (Federal Foreign Office, Report on the asylum- and deportation-relevant situation in Turkey, as of November 2005, p. 23). Decisions on warnings, transfers, or continued employment, among other things, are the responsibility of the High Council of Judges and Prosecutors (HSYK), chaired by the Ministry of Justice. As of 2010, dismissals are at least subject to judicial review (Federal Foreign Office, Report on the asylum- and deportation-relevant situation in Turkey, as of August 2012, p. 16). Although it was not relevant, the Senate pointed out that stronger control of judges and the resulting restriction on their independence had only been reported from the beginning of 2014, following the entry into force of a reform law passed on February 15, 2014 (Federal Foreign Office, Report on the asylum- and deportation-relevant situation in Turkey, as of May 2014, p. 18). This and the developments in Turkey after the so-called coup attempt in the summer of 2016 were not relevant for the plaintiff’s case, which concluded in December 2012.
In Turkish criminal proceedings, a judgment must be rendered after the conclusion of the main proceedings. Under Turkish law, a judgment includes acquittal, refraining from punishment, conviction, security measures, dismissal/rejection of the case, or a dismissal order (Article 223 tStPO). Acquittal occurs, among other things, if the commission of the alleged offense by the defendant is not proven (Article 223(2)(b) tStPO) or if no intent or negligence (Article 223(2)(c) tStPO) is established on the part of the defendant in committing the alleged offense (Federal Foreign Office, Report on the asylum- and deportation-relevant situation in Turkey, as of November 2005, p. 58).
The Plaintiff Was Also Granted the Right to Defense in Turkey
The accused has the right to be heard and the right to defense at every stage of the proceedings, starting from the police investigation. Doubts benefit the accused. Moreover, the accused, as well as witnesses who might incriminate themselves by their testimony, have the right to remain silent (see Rumpf, ibid. p. 380). Without the interrogation of the accused in criminal proceedings, conviction is not possible, as Article 247(3) tStPO stipulates that a judicial proceeding cannot be concluded without the hearing of the accused unless an acquittal is pronounced (Article 193(2) tStPO). Therefore, convictions are generally not possible if the accused cannot be heard by the court, for example, due to absence; in such cases, the time limits for prosecutorial and enforcement prescription apply (Federal Foreign Office, Report on the asylum- and deportation-relevant situation in Turkey, as of August 2012, p. 16). However, Article 224 tStPO allows all necessary measures to be taken against absentees (gaip) to establish the facts. Article 247 tStPO permits the continuation of criminal prosecution against fugitives (kacak). However, a criminal judgment can only be rendered if the accused has been interrogated. The rights of the accused are safeguarded by a defense attorney (Rumpf, ibid. p. 385). The accused must also be informed of their right to remain silent and their right to have an attorney present (Article 90(4) tStPO; Federal Foreign Office, Report on the asylum- and deportation-relevant situation in Turkey, as of November 2005, p. 54).
The principle of „no punishment without law“ also applies. This principle is protected not only by Article 38 of the Turkish Constitution but is also reflected in Article 2 of the Turkish Penal Code 2004. This provision refers to the law as the sole basis for criminal sanctions and prohibits, among other things, the imposition of sanctions for criminal offenses by the administration. The prohibition of analogy in criminal law and the prohibition of extensive interpretation of criminal provisions are also explicitly regulated here (Rumpf, ibid. p. 343).
Liability under Turkish law requires the establishment of guilt. The principle of culpability is evident in that punishment is tied to a specific person, and no one can be held accountable for the actions of another (Article 20(1) tStGB 2004). If an act results in a more severe or different outcome than that encompassed by intent, liability only extends to those who acted at least negligently regarding this outcome (Article 23 tStGB 2004). Finally, guilt must be proven. The principle of „in dubio pro reo“ applies (Article 38(4) of the Turkish Constitution), which is also reflected in Article 223(2)(e) tStPO, according to which acquittal must be granted if it is not proven that the accused committed the alleged act (Rumpf, ibid. p. 345f).
In Turkish criminal law, the degree of guilt is graded, and liability may be excluded or limited if there is a lack of or diminished capacity (Rumpf, ibid. p. 346; see also Rumpf, Introduction to Turkish Law, 1st edition 2004, p. 394). Article 61(1)(f) tStGB 2004 provides, for example, the possibility of reducing the sentence in cases of minor guilt on the part of the accused. Negligent conduct leads to liability only where the offense explicitly defines negligence as a condition for punishment (Article 22(1) tStGB 2004). According to § 22(4) tStGB 2004, punishment may be waived in cases of negligence if the perpetrator is personally affected by the act and thus already appears to be „sufficiently punished“ by the consequences they suffer.
The reform process in the area of criminal prosecution and sentencing practices initiated in Turkey in 2003 was seen as progress in the field of justice by the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, in his report dated January 10, 2012. The Commissioner for Human Rights also identified ongoing significant deficiencies, particularly concerning the sometimes excessively long duration of criminal proceedings and pretrial detention. Deficiencies were also noted in handling confidential information, especially personal data, and access to the evidence for the accused and lawyers. The Federal Foreign Office was not aware of any court judgments based on confessions obtained under duress, which is prohibited by the Code of Criminal Procedure, at the time of the criminal judgment in question. However, lawyers reportedly stated that detainees had, in some cases, been coerced into making statements through psychological pressure. Significant restrictions on freedom of expression and press continued to be observed even after the reform process began, partly due to unclear legal provisions and the failure of lower courts to consider the case law of the European Court of Human Rights (ECHR) and other high courts (Federal Foreign Office, Report on the asylum- and deportation-relevant situation in the Republic of Turkey, as of August 2012, pp. 6 and 15). Although the situation deteriorated again after the criminal judgment (Karar) of the Salihli Assize Court, particularly in cases related to alleged membership in the PKK, the sources relevant to the present case do not suggest that the rule of law requirements outlined above were generally not observed in cases without political or separatist background at the time of the criminal judgment under review.
The decision (Karar) of the Salihli Assize Court dated December 6, 2012, itself did not indicate that the court had disregarded the material and procedural norms of Turkey, particularly the principles of the rule of law applicable in the European legal area, in reaching its judgment.
The lawful judge was observed. The Kula Public Prosecutor’s Office indicted the plaintiff on May 9, 2005, on the charge of causing death and injury to more than one person through negligence and carelessness. On June 3, 2005, the Kula Criminal Court transferred the case to the Salihli Assize Court, as it believed the Assize Court had jurisdiction over the offense under Article 85(2) of the Turkish Penal Code 2004.
The Plaintiff Had the Opportunity to Make a Statement in the Turkish Proceedings
The plaintiff had the opportunity to make a statement regarding the incident in the Turkish criminal proceedings. His statements were noted and considered, and the court clarified the facts. The Senate inferred this from the translated reasoning of the Salihli Assize Court’s decision (Karar) dated December 6, 2012.
Accordingly, the plaintiff, like the other accident participants and witnesses, had the opportunity to comment on the course of the accident on January 27, 2005, before the indictment was issued. He stated that on the day of the incident, he was driving from the city of Izmir toward Usak and, about 20-25 km after passing the Kula district, attempted to overtake the truck in front of him. He noticed that an oncoming truck was swerving in a zigzag pattern and approaching him at high speed, so he overtook it. The oncoming truck first collided with the box of the truck in front of him and then with the left side of his vehicle and swerved past him. As he heard, it then collided with a bus traveling behind him.
However, after evaluating the witness statements and the findings of the authorities at the scene, which were documented in an accident report, the prosecution concluded that the plaintiff had caused the accident with his vehicle and was at fault, leading to the indictment against him. This was admitted by the Assize Court.
In the judicial proceedings, the plaintiff again had the opportunity to comment on the charges against him. However, he did not exercise this opportunity during the international mutual assistance procedure and refused to testify. According to the protocol drawn up by the Reutlingen District Court on September 12, 2012, the plaintiff stated that the allegations against him had long been known to him in writing. He had a lawyer in Turkey who had taken care of the entire matter and arranged what was necessary on his behalf. His Turkish lawyer had also already named the necessary witnesses there. Therefore, he had nothing to add or request in this matter and would definitely say nothing, invoking his right to remain silent. During the oral hearing before the Senate, the plaintiff stated that he did not have a court-appointed lawyer in the Turkish criminal proceedings but had personally hired a lawyer during his hospital stay after the accident to defend him.
The Decision (Karar) of the Assize Court Was Also Preceded by Judicial Fact-Finding The criminal court conducted an evidence gathering. In response to the Turkish lawyer’s challenge to the accident report of January 27, 2005, an expert opinion by H.Y. dated April 19, 2012, was prepared. After this expert opinion was again contested by the plaintiff’s lawyer, the Assize Court obtained a report from the forensic board in Istanbul, Department of Traffic, dated July 4, 2012.
No violations of the principles of a fair trial were evident in the expert opinion on the course of the accident. The Assize Court’s decision not to obtain any further expert opinion, as the additional expert opinions confirmed the findings on the course of the accident, as already determined in the accident report of January 27, 2005, was comprehensible and, moreover, was not challenged by the plaintiff.
After evaluating the witness statements, the findings in the accident report, the expert opinions, and medical reports on the victims, and thus after reviewing the entire case file, the Assize Court concluded that the accident did not occur as described by the plaintiff. The Assize Court instead found it proven that on January 27, 2005, at around 10:00 PM, the plaintiff attempted to overtake the truck in front of him on the Salihli D 300 road with his vehicle and collided with the truck driven by the deceased N.G., which was traveling in the opposite lane. As a result, the driver of the oncoming truck lost control of the steering wheel and collided with another truck, driven by the deceased M.Y., which was traveling behind the plaintiff from Kula to Usak, and subsequently with a passenger bus driven by the deceased A.A., which was also traveling from Kula to Usak.
The Plaintiff Also Had Legal Remedies Against the Turkish Judgment
Finally, the plaintiff had legal recourse against the Turkish Assize Court’s judgment. The plaintiff stated during the appeal proceedings that his Turkish lawyer had filed an appeal, but it was dismissed at an unknown time.
The fact that the criminal judgment was rendered in the plaintiff’s absence did not make the proceedings in Turkey unlawful. Although a fair criminal trial requires the defendant’s personal participation, which not only serves their right to be heard but also allows the court to assess the credibility of their statements and compare them with those of the victim and witnesses, this right is not explicitly mentioned in Article 6(1) of the ECHR. However, it follows from the purpose of this right that a person charged with a crime has the right to attend the trial (Federal Constitutional Court, Decision of December 15, 2015 – 2 BvR 2735/14 – juris Rn. 101, referencing the ECHR judgments in Poitrimol v. France, Judgment of November 23, 1993, No. 14032/88, § 35, and Colozza v. Italy, Judgment of February 12, 1985, No. 9024/80, § 27). Proceedings in absentia can be compatible with Article 6 of the ECHR if the defendant has waived their right to attend and defend themselves, or if a court reviews the factual and legal aspects of the charges against them after hearing the defendant (Federal Constitutional Court, Decision of December 15, 2015, ibid. Rn. 101 and 104, referencing the ECHR judgments in Colozza v. Italy, Judgment of February 12, 1985, No. 9024/80, §§ 29 f. and Medenica v. Switzerland, Judgment of June 14, 2001, No. 20491/92, § 55).
This case law on the execution of a European arrest warrant is also reflected in the Law on International Mutual Assistance in Criminal Matters (IRG). According to Section 83(1) No. 3 of the IRG, the absence of the defendant in the main proceedings does not constitute an obstacle to extradition if the convicted person was personally notified in due time of the trial that led to the judgment (§ 83(2) No. 1 a) aa IRG), was officially informed of the scheduled time and place of the trial that led to the judgment in another way, so that it was clearly proven that the convicted person was aware of the scheduled trial (§ 83(2) No. 1 a) bb IRG), and was informed that the judgment could be rendered even in their absence (§ 83(2) No. 1 b IRG), or if the convicted person was aware of the scheduled trial and appointed a defense attorney to represent them at the trial, and was indeed represented by this attorney in the trial (§ 83(2) No. 3 IRG). Furthermore, extradition is permissible in such a case if the convicted person expressly declares that they do not wish to challenge the judgment (§ 83(3) Sentence 1 No. 1 IRG) or does not apply for a retrial or an appeal within the applicable time limits (§ 83(3) Sentence 1 No. 2 IRG).
These regulations concerning extradition or the principles established by the Federal Constitutional Court regarding the execution of a European arrest warrant apply directly to extradition to other European countries or the execution of a European arrest warrant. However, the right of a person charged with a crime to participate in the oral hearing is one of the essential requirements of Article 6 of the ECHR and the fundamental principles of Union law (Federal Constitutional Court, Decision of December 15, 2015, ibid. Rn. 101 and 102) and thus also applies in the context of non-European countries. Therefore, these principles are transferable to the present situation and should be applied when interpreting the requirements for the rule of law in a proceeding.
The plaintiff had the opportunity to comment on the accident’s events on January 27, 2005, before the indictment and took advantage of this opportunity. He declined to comment during the judicial proceedings as part of an international legal assistance request and invoked his right to remain silent. According to his statements, the plaintiff was represented by an attorney he had personally appointed during the criminal proceedings in Turkey. In the legal assistance procedure, he stated that this attorney had named the necessary witnesses and arranged what was necessary for his defense. Therefore, the plaintiff had sufficient opportunity to defend himself against the allegations despite his absence from the oral hearing.
It is not required that the foreign conviction provide sufficient assurance of the accuracy of the findings according to the general, particularly procedural, conditions and that the review must obligatorily extend to whether the naturalization applicant would have been convicted domestically based on the evidence given in the foreign criminal proceedings if the accused’s guilt is disputed (see Berlit, ibid. § 12a Rn. 69, referencing Federal Administrative Court, Decision of September 16, 1986 – juris Rn. 5ff – concerning expulsion law). This case law, established by the Federal Administrative Court concerning expulsion law and thus involving an intrusion into the rights of an affected party, was not transferable to the present case of naturalization, which falls under the granting of benefits by the administration (Hailbronner/Hecker, ibid. § 12a Rn. 21). Apart from the practical impossibility of conducting a hypothetical criminal proceeding based on crimes committed and adjudicated abroad, the Senate believed that the express requirement in Section 12a(2) of the Nationality Act, which only asks whether the act is punishable domestically and whether the conviction was rendered in a lawful trial, speaks against transferring this case law. The requirement to comply with the minimum standards of a fair trial, the right to be heard, and the provision of effective legal protection, including exhausting the legal process, is intended to ensure that the findings in foreign criminal judgments are not incorrect.
The Federal Administrative Court Prescribes That the Foreigners’ Authority May Generally Rely on the Accuracy of the Foreign Judgment
In its decision of September 16, 1986 (ibid. Rn. 4) on expulsion law, the Federal Administrative Court also pointed out that the Foreigners’ Authority can generally assume the accuracy of the conviction and base its decision on the criminal court’s factual findings unless further investigation is necessary. In its judgment concerning the consideration of a foreign conviction in disciplinary proceedings, the Federal Administrative Court only recognizes an exception to the binding effect of foreign findings if there are substantial indications of their obvious inaccuracy (Federal Administrative Court, Judgment of April 19, 2018, ibid. juris Rn. 33). This case law is also applicable to the law of naturalization. The plaintiff did not claim and the Senate did not identify any indications of the inaccuracy of the decision. If a party to the proceedings claims the obvious inaccuracy of the findings under § 12a(2) Sentence 1 of the Nationality Act, the administrative courts are only authorized to investigate the matter further and eventually make an exception to the binding effect of foreign criminal judgments if the claim is sufficiently substantiated. General assertions or mere denials are not sufficient. Factual circumstances must be presented that may indicate obvious inaccuracy (Federal Administrative Court, Judgment of April 19, 2018, ibid. Rn. 45, referencing Federal Administrative Court, Decisions of August 26, 2010 – 2 B 43.10 – Buchholz 235, 1 § 57 BDG No. 3 Rn. 6 and August 30, 2017 – 2 B 34.17 – NVwZ-RR 2018, 239 Rn. 15).
A foreign conviction can also only be considered if the sentence imposed is proportionate (Section 12a(2) Sentence 1 of the Nationality Act).
The sentence is disproportionate if, considering the nature and severity of the act leading to the conviction, it disregards the requirement of punishment commensurate with guilt or otherwise deviates in a manner that cannot be justified from the principles of proportionality applicable in the European legal area, as enshrined in Article 49(3) of the EU Charter of Fundamental Rights (prohibition of disproportionate punishment) (Hailbronner/Hecker, ibid. § 12a Rn. 19; Berlit, ibid. § 12a Rn. 72).
If the sentence is disproportionate, the foreign conviction must be disregarded entirely. A hypothetical reduction of a disproportionate sentence to align it with the German sanction system or applying the provisions of Section 12a(1) of the Nationality Act to a sentence that is still proportionate is neither required by the wording of the regulation nor acceptable (Berlit, ibid. § 12a Rn. 71; Geyer, ibid. § 12a Nationality Act Rn. 15). Therefore, reducing a disproportionate foreign sentence to the maximum penalty provided for by German criminal law, as provided for in § 54(1) Sentence 3 IRG for enforcing foreign judgments, is not permissible, as the defendant argued in their appeal response.
The sentence is limited by the sentencing range. The foreign legislature has broad discretion when determining the sentence. This broad discretion is also granted to the German legislature by the Federal Constitutional Court when determining sentencing ranges. When determining the sentencing range for a criminal offense, the legislature must and may consider the typical behavior it disapproves of. Determining the sentencing range is based on an act of legislative judgment that can only be rationally justified within certain limits. Determining what sanction is appropriate for a criminal offense—either abstractly or concretely—and where the limits of a constitutionally oriented threat of punishment should be drawn depends on a variety of value judgments. The Constitution grants the legislature broad discretion when establishing threats of punishment. The Federal Constitutional Court takes this broad discretion into account when reviewing legal threats of punishment. It can only find a violation of the principle of culpability or the prohibition of excess if the legal regulation leads to absolutely unacceptable results based on the idea of justice. This would be the case if the threatened punishment, in light of the nature and extent of the criminalized act, were absolutely inappropriate or even cruel, inhumane, or degrading. To avoid disproportionate sanctions, it is usually sufficient for the legislature to enable the judge to impose a sentence commensurate with guilt within a corresponding sentencing range. This can be assumed, particularly when the offense clearly describes criminal behavior and the punishment is only determined by the degree of individual guilt in the specific case (see Federal Constitutional Court, Decision of November 16, 2010 – 2 BvL 12/09 – juris Rn. 91f).
The specific punishment must be proportionate to the severity of the offense and the offender’s culpability. The sentence imposed by a foreign court must therefore be reviewed to determine whether the reasons given for the sentence, considering the circumstances of the offense (aggravating and mitigating factors), the outcome of the offense, and the personality of the offender, are still suitable for justifying the severity of the sentence.
However, the opinion that proportionality should be assessed according to the German sanction system and that the authority must therefore determine what sentence a German court would have imposed in the specific case (as argued by Geyer, ibid. § 12a Rn. 15) cannot be followed. The wording of § 12a(2) StAG contradicts such an interpretation. It requires that the act is punishable in Germany (§ 12a(2) Sentence 1 StAG), but not that it is subject to the same penalty. Therefore, it cannot depend on whether the same or a comparable sentence would have been imposed in Germany (Hailbronner/Hecker, ibid. § 12a Rn. 22). Instead, the examination must be based on the principles and standards of the sentencing state. Deviations from the principles and standards of sentencing applicable in the European legal area must not be unjustified when assessing the proportionality of the sentence.
This interpretation is supported by the legislative history of § 12a(2) of the Nationality Act. This subsection was added to the Nationality Act by the Zuwanderungsgesetz (Immigration Act) of July 30, 2004 (BGBl. I p. 1950) following a request by the CDU/CSU parliamentary group in the Interior Committee (BT-Drs. 15/955, 42) and the mediation committee (BT-Drs. 15/3479, 15). In the explanatory memorandum to the CDU/CSU parliamentary group’s request in the Interior Committee, it is stated that subsection 2 adopts, for clarification, the regulation previously found in No. 88.1 of the General Administrative Regulation on Nationality Law (StAR-VwV). This administrative regulation was based on the provision in the former § 88 AuslG (in the version valid until December 31, 2004), which provided that certain convictions were to be disregarded in the naturalization process if they did not exceed a certain penalty threshold (§ 88(1) Sentence 1 Nos. 1 to 3 AuslG) and that a decision should be made in individual cases on whether a foreigner convicted of a higher penalty should be disregarded. No. 88.1 of the StAR-VwV clarified that foreign convictions should also be considered in this regard. However, this question was not undisputed until the entry into force of § 12a(2) of the Nationality Act. In 1993, the Federal Constitutional Court regarded such an interpretation of § 88 AuslG as plausible (Federal Constitutional Court, Decision of December 22, 1993 – 2 BvR 2632/93 – juris Rn. 6; see Geyer, ibid. § 12a Rn. 14), but did not decide on it conclusively. This interpretation has now been adopted. However, the legislature did not include a provision in § 12a(2) of the Nationality Act requiring the nationality authority to review and decide whether the sanction imposed in the foreign conviction could be assigned to the system of our criminal and procedural law and the elements of § 88 AuslG, if necessary, by lowering the sanction type and penalty to the level usual in our legal system (Makarov/v.Mangoldt, German Nationality Law, § 88 AuslG Rn. 12). The fact that the legislature did not include such a provision in § 12a(2) of the Nationality Act indicates that the proportionality of the foreign penalty should not be assessed according to the principles and standards of German law, and it is therefore not only proportionate if the same or a comparable penalty would have been imposed in Germany.
The Sentence Imposed by the Turkish Judgment Was Also Proportionate
Based on these principles, the fact that the plaintiff’s nine-year prison sentence exceeded the sentencing range of § 222 of the German Penal Code by four years did not render the sentence disproportionate.
The plaintiff was convicted under Article 455 tStGB 1926. Under its first paragraph, a person who causes the death of a person due to lack of caution, carelessness, inexperience in their profession or trade, or failure to observe regulations, orders, or instructions shall be punished with imprisonment of two to five years and a heavy fine. This sentencing range roughly corresponds to the provision of § 222 of the German Penal Code, which provides for imprisonment of up to five years or a fine for negligently causing the death of a person. Under Article 455(2) tStGB 1926, this sentencing range increases to four to ten years imprisonment and a „heavy“ fine if, as here, the act caused the death of several persons or the death of one person and the injury of one or more persons within the meaning of Article 456(2) tStGB 1926. Article 456(2) tStGB 1926 provides for an increase in the penalty for bodily injury offenses that result in significant consequences for the victim, as specified in the provision. Unlike German criminal law, Turkish law already links the „success“ or the wrongdoing of the offense to the elements of the offense and shifts the sentencing range upward in cases where a particularly significant „damage“ is caused by the killing of several people or the killing of one person and the serious injury of one or more people. Under § 222 of the German Penal Code, however, it is irrelevant at the level of the elements of the offense whether one or more people were killed by the negligence offense (Fischer, ibid. § 222 Rn. 34). In German criminal law, the extent of the damage only becomes relevant in the context of sentencing—within the sentencing range set by the offense (§ 46(2) Sentence 2 StGB; see also Schönke/Schröder, StGB, 30th edition, § 46 Rn. 19; Kühl in Lackner/Kühl, StGB, 29th edition, § 46 Rn. 34).
However, German criminal law also provides for the instrument of an increased penalty for greater harm at the level of the elements of the offense, such as in § 226 of the German Penal Code (serious bodily injury) or § 306b and 306c of the German Penal Code (particularly serious arson, arson resulting in death) or in § 315d(5) of the German Penal Code (illegal motor vehicle racing). The fact that the Turkish legislature justifies the higher sentencing range by the large number of people killed or injured and therefore places much greater importance on protecting life and health through a deterrent high penalty does not make the sentencing range of five to ten years absolutely inappropriate, cruel, inhumane, or degrading, and therefore disproportionate.
There were also no indications that the Assize Court in Salihli disregarded significant factors related to the plaintiff’s degree of culpability in determining the sentence, or that its decision was arbitrary or came about in an unjustifiable manner.
The plaintiff was convicted by the Salihli Assize Court under the more favorable Article 455(2) tStGB 1926, which provides a sentencing range of four to ten years. The version of Article 85(2) tStGB 2004, which has been in force since April 1, 2005, was not yet in effect at the time of the offense (January 27, 2005) and also contained a stricter penalty. This is because it prescribes a sentencing range of two to fifteen years imprisonment for causing the death of several people or the death of one person and the injury of several others, among other things, through lack of caution and carelessness. The Assize Court also considered Article 7(2) tStGB 2004, which stipulates that the law more favorable to the perpetrator should be applied if the provisions of the law in force at the time of the offense and the laws coming into force later are different.
Given the Circumstances, the Sentence Was Not Unjustifiable The fact that a sentence close to the upper limit of ten years was imposed for a traffic accident with five deaths and forty injuries was justified by the Assize Court due to the large number of victims. This was comprehensible to the VGH Baden-Württemberg and did not appear unjustifiable, considering the sentencing range of four to ten years, which applies even in cases where two people have died, or where the death of one person is accompanied by the injury of another with particularly severe consequences.
However, the plaintiff did not present any grounds that would have necessitated a reduction in the sentence. Article 455(3) tStGB 1926 provides for the possibility of reducing the sentence to one-eighth of the prescribed penalty based on the degree of culpability. However, the Assize Court did not use this option, justifying it by stating that the plaintiff was solely responsible for the accident and therefore fully culpable. This also raised no concerns. Moreover, Article 62(2) tStGB 2004 explicitly lists the following as reasons for mitigating the sentence: factors such as the offender’s previous behavior, social ties, behavior after the offense and during the trial, and the potential impact of the sentence on the offender’s future. Since the plaintiff did not personally testify to the offense and its circumstances during the trial in Turkey, the Assize Court did not consider mitigating factors.
During the appeal hearing, the plaintiff’s representative argued that the Assize Court assigned him sole responsibility for the accident only because the other accident participants were deceased and the law always required full culpability (of eight-eighths). However, this was not reflected in the reasoning of the judgment. According to the provisions of Turkish criminal law, punishment is tied to a specific person, and no one can be held accountable for the actions of another (Article 20(1) tStGB 2004; Rumpf, ibid. p. 345 f).
According to § 12a(2) Sentence 2 of the Nationality Act, a foreign conviction can no longer be considered if it would have been expunged under the Federal Central Register Act. This condition was not met in this case.
A nine-year prison sentence and a fine would only be expunged after fifteen years under the Federal Central Register Act (§ 46(1) No. 4 BZRG). For the plaintiff’s conviction, this meant that expungement would not be possible before December 6, 2027.
According to § 12a(2) Sentence 3 StAG in conjunction with § 12a(1) No. 2 StAG, convictions to imprisonment of up to three months, which have been suspended and remitted after the probation period, are disregarded in the naturalization process. However, a conviction to nine years imprisonment and a fine far exceeded this threshold, so the authority could not exercise discretion to disregard the offense based on the special circumstances of the individual case (§ 12a(2) Sentence 3 in conjunction with Sentence 1(3) StAG).
The Plaintiff Was Also Not Entitled to Naturalization or at Least a New Decision on His Application under § 8(1) StAG Under this provision, a foreigner who has lawfully resided in Germany may be naturalized upon application if they have not been convicted of a criminal offense, have found a place to live, and are able to support themselves and their dependents.
The plaintiff’s naturalization was also precluded by the fact that he was convicted of a criminal offense, that this conviction must be considered under § 12a(2) StAG, and that there was no exception under § 8(1) No. 2 StAG in conjunction with § 12a(2) Sentence 3 in conjunction with Sentence 1(3) StAG.
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