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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> X. v. THE GERMANY - 3040/67 [1967] ECHR 36 (07 April 1967) URL: http://www.bailii.org/eu/cases/ECHR/1967/3040_67.html Cite as: [1967] ECHR 36

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THE FACTS

Whereas the facts presented by the Applicant may be summarised as follows:

The Applicant is a Jugoslavian citizen, born in 1942 at Maribor (Marburg) in
Slovenia, and was, until ..., 1967, detained in prison at Mayence pending his
extradition to Jugoslavia. He is represented by Mr. S, a barrister practising
at Worms.

From his statements and the documents submitted by him, it appears that he
illegally entered the Federal Republic of Germany in ... 1965 and that he was
arrested in Mayence on ..., 1965. On ..., 1965, the District Court
(Amtsgericht) decided that the Applicant should be detained in prison pending
his deportation and, on ..., 1965, the police authority (Polizeipräsident) of
Mayence issued an expulsion order against him.

On ..., 1966, the District Court authorised the continued detention pending
deportation of the Applicant until ..., 1966. His appeal (Beschwerde) from
this decision was dismissed by the Regional Court (Landgericht) of Mayence on
..., 1966.

In ..., 1966, the Jugoslavian authorities requested the extradition of the
Applicant on the ground that he had committed aggravated theft in Jugoslavia.
On ..., 1966, the Court of Appeal (Oberlandesgericht) of Coblenz declared his
extradition admissible and made an order for his detention pending
extradition.  On ..., 1966, the Court decided that this detention should
continue.

In letters of ... and ..., 1967, to the Court of Appeal, the Applicant
objected to his extradition and requested political asylum. He stated that he
was liable to political persecution in Jugoslavia for having refused to
perform his military service. In this connection, he pointed out that his
father, who had served in the German army, was shot by Jugoslavian partisans
in May, 1945, and that his family was discriminated against after the war. In
..., 1965, having refused to perform his military service, the Applicant was
arrested and subjected to one month's detention. Following a new order to
present himself, he decided to flee to Germany, and, as he did not have any
money for travelling, he committed the theft in question.

On ..., 1967, the Court of Appeal of Coblenz rejected the Applicant's above
petitions of ... and ..., 1967. It stated that his allegation concerning his
refusal to perform military service in Jugoslavia did not constitute a new
fact and that, consequently, there were no grounds for revising the Court's
decision of ..., 1966, by which his extradition to Jugoslavia had been
declared admissible.

The Applicant states that, not knowing German, he did not understand the
decisions which were given in his case by the German authorities. His lawyer,
on the other hand, does not exclude the possibility that the Applicant was in
fact assisted by an interpreter at the various hearings before the German
authorities. He submits, however, that it was essential for the Applicant to
have legal assistance as the proceedings concerning his deportation and
extradition were very complicated. In this respect, Mr. S indicates that he
was in contact with the Applicant from ..., 1966, until ... 1967.

The Applicant alleges violations of Article 5, paragraphs (2) and (3), and
Article 6, paragraphs (2) and (3), sub-paragraphs (a) and (c), of the
Convention. He asks for political asylum in the Federal Republic of Germany.

Proceedings before the Commission

The Applicant's first letter to the Commission, dated 28th November, was
received on 13th December, 1966, and, on 14th December, 1966 and application
form was sent to him. This form was signed by the Applicant on 27th January,
1967, and forwarded by his lawyer under cover of a letter dated 3rd February.
It arrived in Strasbourg on 6th February and the Application was registered on
the same day.

On 7th February, 1967, the Commission's Secretary obtained further information
from the Applicant's lawyer by telephone. Mr. S stated that the Applicant's
transport to Jugoslavia had apparently left Mayence on ... However, as a
result of his recent interventions with the Federal Ministry of Justice at
Bonn, the Attorney-General (Generalstaatsanwalt)
at Coblenz and the Federal Constitutional Court (Bundesverfassungsgericht),
this transport might have been stopped and, consequently, the Applicant might
still be in Germany.

In view of this information, the Application was given priority under Rule 38,
paragraph (1), and examined by a group of three members in accordance with
Rule 45 of the Rules of Procedure of the Commission on the same day (7th
February, 1967). The group noted that Mr. S was no longer able to contact the
Applicant and, on the instructions of the group, the Commission's Secretary
attempted directly to get in touch with him in order to obtain further details
regarding his allegations. However, the extradition was already far advanced
and, in spite of every possible co-operation, on an unofficial level, from the
German Federal and Austrian Governments, it was not possible to locate the
Applicant before his extradition to Jugoslavia had taken place on ..., 1967.

By a letter of 22nd March, 1967, Mr. S informed the Commission that the
constitutional appeal (Verfassungsbeschwerde) which he had lodged on the
Applicant's behalf had been declared inadmissible by the Federal
Constitutional Court on ..., 1967, on the ground that Mr. S had failed to
submit a power-of-attorney signed by the Applicant and relating specifically
to the proceedings before that Court.

THE LAW

Whereas, with respect to the Applicant's claim for political asylum in the
Federal Republic of Germany, it is to be observed that the Convention, under
the terms of Article 1 (Art. 1), guarantees only the rights and freedoms set
forth in Section I of the Convention; and whereas, under Article 25, paragraph
(1) (Art. 25-1), only the alleged violation of one of those rights and
freedoms by a Contracting Party can be the subject of an application presented
by a person, non-governmental organisation or group of individuals; whereas
otherwise its examination is outside the competence of the Commission ratione
materiae; whereas the right to political asylum is not as such included among
the rights and freedoms guaranteed by the Convention; whereas in this respect
the Commission refers to its previous decisions on the admissibility of
Applications No. 1802/62, Yearbook of the European Convention on Human Rights,
Volume 6, pages 462 (478), and No. 2143/64, Yearbook, Volume 7, pages 314
(328); whereas it follows that this part of the Application is incompatible
with the provisions of the Convention within the meaning of Article 27,
paragraph (2) (Art. 27-2);

Whereas, with regard to the Applicant's complaints concerning his arrest and
detention pending his deportation or extradition to Jugoslavia, it is to be
observed that the Convention, under Article 5, paragraph (1) (Art. 5-1),
provides that:

"Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law:
...
(f) the lawful arrest or detention of a person ... against whom action is
being taken with a view to deportation or extradition";

whereas it is clear that the Applicant was arrested and detained in those
circumstances; whereas it follows that an examination of the above complaints
does not disclose any appearance of a violation of the Convention and, in
particular, of Article 5 (Art. 5);

Whereas, consequently, this part of the Application is manifestly ill-founded
within the meaning of Article 27, paragraph (2) (Art. 27-2), of the
Convention;
Whereas the Applicant also complains that, not knowing German, he was unable
to understand the decisions which were given in his case by the German
authorities; whereas in this respect the Commission has had regard to Article
5, paragraph (2) (Art. 5-2), of the Convention, which provides that everyone
who is arrested shall be informed promptly, in a language which he
understands, of the reasons for his arrest;

Whereas the Applicant's lawyer does not exclude the possibility that the
Applicant was in fact assisted by an interpreter at the various hearings
before the German authorities; whereas, in any event, under Article 26 (Art.
26) of the Convention the Commission may only deal with a matter after all
domestic remedies have been exhausted according to the generally recognised
rules of international law; and whereas the Applicant failed to show that he
raised the above complaints before the competent German courts; whereas,
therefore, he has not established that he has exhausted the remedies available
to him under German law;

Whereas, moreover, an examination of the case as it has been submitted,
including an examination made ex officio, does not disclose the existence of
any special circumstances which might have absolved the Applicant, according
to the generally recognised rules of international law, from exhausting the
domestic remedies at his disposal; whereas in this respect the Commission
observes that, in the proceedings concerned, the Applicant, although being
himself apparently without knowledge of German, was assisted by a German
lawyer who was familiar with the relevant legal provisions; whereas,
therefore, there is no question of the existence of any such special
circumstance; whereas, consequently, the condition as to the exhaustion of
domestic remedies laid down in Articles 26 and 27, paragraph (3) (Art. 26, 27-
3), of the Convention has not been complied with by the Applicant in respect
of his above complaint;

Whereas his lawyer further states that it was essential for the Applicant to
have legal assistance in the proceedings concerning his deportation and
extradition as these proceedings were very complicated; whereas, in this
regard, the Commission has noted that Mr. S was in contact with the Applicant
from ..., 1966, until ..., 1967; whereas it follows that, during this period,
the Applicant was in fact assisted by a lawyer; whereas, however, it is not
clear whether he had legal assistance during the earlier part of the
proceedings in question, that is between ..., 1965 and ..., 1966;

Whereas, in this respect, the Commission has had regard to Article 6 (Art. 6)
of the Convention which provides that, in the determination of his civil
rights, everyone is entitled to a "fair hearing"; whereas, in a previous case,
the Commission raised, but did not decide, the question whether this provision
covers legal proceedings relating to extradition or asylum (Application No.
1802/62, loc cit. page 482);

Whereas, in the present case, the Commission equally does not feel called upon
to decide this question, considering that, in any event, the Applicant has
failed to show that he has raised with the competent German courts the issue
of his legal representation; whereas, therefore, he has not established that
he has exhausted the domestic remedies available to him under German law; and
whereas there is no appearance of any special circumstances which might have
absolved him from exhausting these remedies; whereas, consequently, the
condition as to the exhaustion of domestic remedies laid down in Articles 26
and 27, paragraph (3) (Art. 26, 27-3), of the Convention has not been complied
with by the Applicant in respect of this part of his Application;

Whereas the Commission has finally had regard to the Applicant's complaints
concerning his extradition to Jugoslavia; whereas it is true that, according
to the Commission's constant jurisprudence, the deportation or extradition of
a foreigner to a particular country may in exceptional circumstances give rise
to the question whether there would be "inhuman treatment" within the meaning
of Article 3 (Art. 3) of the Convention; whereas, in this respect, the
Commission refers to its decisions on the admissibility of Applications Nos.
984/65, Collection of Decisions of the Commission, Volume 6, pages 39 - 40;
No. 1465/62, Yearbook, Volume 5, pages 256 (260); No. 1802/62, loc. cit. page
480, and No. 2143/64, loc cit. pages 328, 330; whereas, however, an
examination of the present case as it has been submitted does not disclose any
appearance of such exceptional circumstances;

Whereas, in this connection, the Commission has noted that the Applicant was
extradited to Jugoslavia in view of the charges of theft brought against him
by the Jugoslavian authorities; and whereas there is no indication that the
principle of speciality, which applies in extradition cases, would not be
respected by the Jugoslavian courts in the criminal proceedings against the
Applicant; whereas, therefore, the remainder of the Application is manifestly
ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of
the Convention.

Now therefore the Commission declares this Application inadmissible.