هيثم الفقى
07-16-2009, 01:08 PM
X. v. THE GERMANY - 3040/67 [1967] ECHR 36 (07 April 1967)
THE FACTSWhereas the facts presented by the Applicant may be summarised as follows:The Applicant is a Jugoslavian citizen, born in 1942 at Maribor (Marburg) inSlovenia, and was, until ..., 1967, detained in prison at Mayence pending hi***tradition to Jugoslavia. He is represented by Mr. S, a barrister practisingat Worms.From his statements and the documents submitted by him, it appears that heillegally entered the Federal Republic of Germany in ... 1965 and that he wasarrested in Mayence on ..., 1965. On ..., 1965, the District Court(Amtsgericht) decided that the Applicant should be detained in prison pendinghis deportation and, on ..., 1965, the police authority (Polizeipräsident) ofMayence issued an expulsion order against him.On ..., 1966, the District Court authorised the continued detention pendingdeportation of the Applicant until ..., 1966. His appeal (Beschwerde) fromthis decision was dismissed by the Regional Court (Landgericht) of Mayence on..., 1966.In ..., 1966, the Jugoslavian authorities requested the extradition of theApplicant on the ground that he had committed aggravated theft in Jugoslavia.On ..., 1966, the Court of Appeal (Oberlandesgericht) of Coblenz declared hi***tradition admissible and made an order for his detention pendingextradition. On ..., 1966, the Court decided that this detention shouldcontinue.In letters of ... and ..., 1967, to the Court of Appeal, the Applicantobjected to his extradition and requested political asylum. He stated that hewas liable to political persecution in Jugoslavia for having refused toperform his military service. In this connection, he pointed out that hisfather, who had served in the German army, was shot by Jugoslavian partisansin May, 1945, and that his family was discriminated against after the war. In..., 1965, having refused to perform his military service, the Applicant wasarrested and subjected to one month's detention. Following a new order topresent himself, he decided to flee to Germany, and, as he did not have anymoney for travelling, he committed the theft in question.On ..., 1967, the Court of Appeal of Coblenz rejected the Applicant's abovepetitions of ... and ..., 1967. It stated that his allegation concerning hisrefusal to perform military service in Jugoslavia did not constitute a newfact and that, consequently, there were no grounds for revising the Court'sdecision of ..., 1966, by which his extradition to Jugoslavia had beendeclared admissible.The Applicant states that, not knowing German, he did not understand thedecisions 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 infact assisted by an interpreter at the various hearings before the Germanauthorities. He submits, however, that it was essential for the Applicant tohave legal assistance as the proceedings concerning his deportation andextradition were very complicated. In this respect, Mr. S indicates that hewas in contact with the Applicant from ..., 1966, until ... 1967.The Applicant alleges violations of Article 5, paragraphs (2) and (3), andArticle 6, paragraphs (2) and (3), sub-paragraphs (a) and (c), of theConvention. He asks for political asylum in the Federal Republic of Germany.Proceedings before the CommissionThe Applicant's first letter to the Commission, dated 28th November, wasreceived on 13th December, 1966, and, on 14th December, 1966 and applicationform 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 onthe same day.On 7th February, 1967, the Commission's Secretary obtained further informationfrom the Applicant's lawyer by telephone. Mr. S stated that the Applicant'stransport to Jugoslavia had apparently left Mayence on ... However, as aresult of his recent interventions with the Federal Ministry of Justice atBonn, the Attorney-General (Generalstaatsanwalt)at Coblenz and the Federal Constitutional Court (Bundesverfassungsgericht),this transport might have been stopped and, consequently, the Applicant mightstill 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 withRule 45 of the Rules of Procedure of the Commission on the same day (7thFebruary, 1967). The group noted that Mr. S was no longer able to contact theApplicant and, on the instructions of the group, the Commission's Secretaryattempted directly to get in touch with him in order to obtain further detailsregarding his allegations. However, the extradition was already far advancedand, in spite of every possible co-operation, on an unofficial level, from theGerman Federal and Austrian Governments, it was not possible to locate theApplicant before his extradition to Jugoslavia had taken place on ..., 1967.By a letter of 22nd March, 1967, Mr. S informed the Commission that theconstitutional appeal (Verfassungsbeschwerde) which he had lodged on theApplicant's behalf had been declared inadmissible by the FederalConstitutional Court on ..., 1967, on the ground that Mr. S had failed tosubmit a power-of-attorney signed by the Applicant and relating specificallyto the proceedings before that Court.THE LAWWhereas, with respect to the Applicant's claim for political asylum in theFederal Republic of Germany, it is to be observed that the Convention, underthe terms of Article 1 (Art. 1), guarantees only the rights and freedoms setforth 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 andfreedoms by a Contracting Party can be the subject of an application presentedby a person, non-governmental organisation or group of individuals; whereasotherwise its examination is outside the competence of the Commission rationemateriae; whereas the right to political asylum is not as such included amongthe rights and freedoms guaranteed by the Convention; whereas in this respectthe Commission refers to its previous decisions on the admissibility ofApplications 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 incompatiblewith 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 anddetention pending his deportation or extradition to Jugoslavia, it is to beobserved 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 bedeprived of his liberty save in the following cases and in accordance with aprocedure prescribed by law:...(f) the lawful arrest or detention of a person ... against whom action isbeing taken with a view to deportation or extradition";whereas it is clear that the Applicant was arrested and detained in thosecircumstances; whereas it follows that an examination of the above complaintsdoes not disclose any appearance of a violation of the Convention and, inparticular, of Article 5 (Art. 5);Whereas, consequently, this part of the Application is manifestly ill-foundedwithin the meaning of Article 27, paragraph (2) (Art. 27-2), of theConvention;Whereas the Applicant also complains that, not knowing German, he was unableto understand the decisions which were given in his case by the Germanauthorities; whereas in this respect the Commission has had regard to Article5, paragraph (2) (Art. 5-2), of the Convention, which provides that everyonewho is arrested shall be informed promptly, in a language which heunderstands, of the reasons for his arrest;Whereas the Applicant's lawyer does not exclude the possibility that theApplicant was in fact assisted by an interpreter at the various hearingsbefore the German authorities; whereas, in any event, under Article 26 (Art.26) of the Convention the Commission may only deal with a matter after alldomestic remedies have been exhausted according to the generally recognisedrules of international law; and whereas the Applicant failed to show that heraised the above complaints before the competent German courts; whereas,therefore, he has not established that he has exhausted the remedies availableto 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 ofany special circumstances which might have absolved the Applicant, accordingto the generally recognised rules of international law, from exhausting thedomestic remedies at his disposal; whereas in this respect the Commissionobserves that, in the proceedings concerned, the Applicant, although beinghimself apparently without knowledge of German, was assisted by a Germanlawyer who was familiar with the relevant legal provisions; whereas,therefore, there is no question of the existence of any such specialcircumstance; whereas, consequently, the condition as to the exhaustion ofdomestic 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 respectof his above complaint;Whereas his lawyer further states that it was essential for the Applicant tohave legal assistance in the proceedings concerning his deportation andextradition as these proceedings were very complicated; whereas, in thisregard, the Commission has noted that Mr. S was in contact with the Applicantfrom ..., 1966, until ..., 1967; whereas it follows that, during this period,the Applicant was in fact assisted by a lawyer; whereas, however, it is notclear whether he had legal assistance during the earlier part of theproceedings 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 civilrights, everyone is entitled to a "fair hearing"; whereas, in a previous case,the Commission raised, but did not decide, the question whether this provisioncovers 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 uponto decide this question, considering that, in any event, the Applicant hasfailed to show that he has raised with the competent German courts the issueof his legal representation; whereas, therefore, he has not established thathe has exhausted the domestic remedies available to him under German law; andwhereas there is no appearance of any special circumstances which might haveabsolved him from exhausting these remedies; whereas, consequently, thecondition as to the exhaustion of domestic remedies laid down in Articles 26and 27, paragraph (3) (Art. 26, 27-3), of the Convention has not been compliedwith by the Applicant in respect of this part of his Application;Whereas the Commission has finally had regard to the Applicant's complaintsconcerning his extradition to Jugoslavia; whereas it is true that, accordingto the Commission's constant jurisprudence, the deportation or extradition ofa foreigner to a particular country may in exceptional circumstances give riseto the question whether there would be "inhuman treatment" within the meaningof Article 3 (Art. 3) of the Convention; whereas, in this respect, theCommission 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. page480, and No. 2143/64, loc cit. pages 328, 330; whereas, however, anexamination of the present case as it has been submitted does not disclose anyappearance of such exceptional circumstances;Whereas, in this connection, the Commission has noted that the Applicant wa***tradited to Jugoslavia in view of the charges of theft brought against himby the Jugoslavian authorities; and whereas there is no indication that theprinciple of speciality, which applies in extradition cases, would not berespected by the Jugoslavian courts in the criminal proceedings against theApplicant; whereas, therefore, the remainder of the Application is manifestlyill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), ofthe Convention.Now therefore the Commission declares this Application inadmissible.
THE FACTSWhereas the facts presented by the Applicant may be summarised as follows:The Applicant is a Jugoslavian citizen, born in 1942 at Maribor (Marburg) inSlovenia, and was, until ..., 1967, detained in prison at Mayence pending hi***tradition to Jugoslavia. He is represented by Mr. S, a barrister practisingat Worms.From his statements and the documents submitted by him, it appears that heillegally entered the Federal Republic of Germany in ... 1965 and that he wasarrested in Mayence on ..., 1965. On ..., 1965, the District Court(Amtsgericht) decided that the Applicant should be detained in prison pendinghis deportation and, on ..., 1965, the police authority (Polizeipräsident) ofMayence issued an expulsion order against him.On ..., 1966, the District Court authorised the continued detention pendingdeportation of the Applicant until ..., 1966. His appeal (Beschwerde) fromthis decision was dismissed by the Regional Court (Landgericht) of Mayence on..., 1966.In ..., 1966, the Jugoslavian authorities requested the extradition of theApplicant on the ground that he had committed aggravated theft in Jugoslavia.On ..., 1966, the Court of Appeal (Oberlandesgericht) of Coblenz declared hi***tradition admissible and made an order for his detention pendingextradition. On ..., 1966, the Court decided that this detention shouldcontinue.In letters of ... and ..., 1967, to the Court of Appeal, the Applicantobjected to his extradition and requested political asylum. He stated that hewas liable to political persecution in Jugoslavia for having refused toperform his military service. In this connection, he pointed out that hisfather, who had served in the German army, was shot by Jugoslavian partisansin May, 1945, and that his family was discriminated against after the war. In..., 1965, having refused to perform his military service, the Applicant wasarrested and subjected to one month's detention. Following a new order topresent himself, he decided to flee to Germany, and, as he did not have anymoney for travelling, he committed the theft in question.On ..., 1967, the Court of Appeal of Coblenz rejected the Applicant's abovepetitions of ... and ..., 1967. It stated that his allegation concerning hisrefusal to perform military service in Jugoslavia did not constitute a newfact and that, consequently, there were no grounds for revising the Court'sdecision of ..., 1966, by which his extradition to Jugoslavia had beendeclared admissible.The Applicant states that, not knowing German, he did not understand thedecisions 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 infact assisted by an interpreter at the various hearings before the Germanauthorities. He submits, however, that it was essential for the Applicant tohave legal assistance as the proceedings concerning his deportation andextradition were very complicated. In this respect, Mr. S indicates that hewas in contact with the Applicant from ..., 1966, until ... 1967.The Applicant alleges violations of Article 5, paragraphs (2) and (3), andArticle 6, paragraphs (2) and (3), sub-paragraphs (a) and (c), of theConvention. He asks for political asylum in the Federal Republic of Germany.Proceedings before the CommissionThe Applicant's first letter to the Commission, dated 28th November, wasreceived on 13th December, 1966, and, on 14th December, 1966 and applicationform 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 onthe same day.On 7th February, 1967, the Commission's Secretary obtained further informationfrom the Applicant's lawyer by telephone. Mr. S stated that the Applicant'stransport to Jugoslavia had apparently left Mayence on ... However, as aresult of his recent interventions with the Federal Ministry of Justice atBonn, the Attorney-General (Generalstaatsanwalt)at Coblenz and the Federal Constitutional Court (Bundesverfassungsgericht),this transport might have been stopped and, consequently, the Applicant mightstill 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 withRule 45 of the Rules of Procedure of the Commission on the same day (7thFebruary, 1967). The group noted that Mr. S was no longer able to contact theApplicant and, on the instructions of the group, the Commission's Secretaryattempted directly to get in touch with him in order to obtain further detailsregarding his allegations. However, the extradition was already far advancedand, in spite of every possible co-operation, on an unofficial level, from theGerman Federal and Austrian Governments, it was not possible to locate theApplicant before his extradition to Jugoslavia had taken place on ..., 1967.By a letter of 22nd March, 1967, Mr. S informed the Commission that theconstitutional appeal (Verfassungsbeschwerde) which he had lodged on theApplicant's behalf had been declared inadmissible by the FederalConstitutional Court on ..., 1967, on the ground that Mr. S had failed tosubmit a power-of-attorney signed by the Applicant and relating specificallyto the proceedings before that Court.THE LAWWhereas, with respect to the Applicant's claim for political asylum in theFederal Republic of Germany, it is to be observed that the Convention, underthe terms of Article 1 (Art. 1), guarantees only the rights and freedoms setforth 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 andfreedoms by a Contracting Party can be the subject of an application presentedby a person, non-governmental organisation or group of individuals; whereasotherwise its examination is outside the competence of the Commission rationemateriae; whereas the right to political asylum is not as such included amongthe rights and freedoms guaranteed by the Convention; whereas in this respectthe Commission refers to its previous decisions on the admissibility ofApplications 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 incompatiblewith 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 anddetention pending his deportation or extradition to Jugoslavia, it is to beobserved 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 bedeprived of his liberty save in the following cases and in accordance with aprocedure prescribed by law:...(f) the lawful arrest or detention of a person ... against whom action isbeing taken with a view to deportation or extradition";whereas it is clear that the Applicant was arrested and detained in thosecircumstances; whereas it follows that an examination of the above complaintsdoes not disclose any appearance of a violation of the Convention and, inparticular, of Article 5 (Art. 5);Whereas, consequently, this part of the Application is manifestly ill-foundedwithin the meaning of Article 27, paragraph (2) (Art. 27-2), of theConvention;Whereas the Applicant also complains that, not knowing German, he was unableto understand the decisions which were given in his case by the Germanauthorities; whereas in this respect the Commission has had regard to Article5, paragraph (2) (Art. 5-2), of the Convention, which provides that everyonewho is arrested shall be informed promptly, in a language which heunderstands, of the reasons for his arrest;Whereas the Applicant's lawyer does not exclude the possibility that theApplicant was in fact assisted by an interpreter at the various hearingsbefore the German authorities; whereas, in any event, under Article 26 (Art.26) of the Convention the Commission may only deal with a matter after alldomestic remedies have been exhausted according to the generally recognisedrules of international law; and whereas the Applicant failed to show that heraised the above complaints before the competent German courts; whereas,therefore, he has not established that he has exhausted the remedies availableto 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 ofany special circumstances which might have absolved the Applicant, accordingto the generally recognised rules of international law, from exhausting thedomestic remedies at his disposal; whereas in this respect the Commissionobserves that, in the proceedings concerned, the Applicant, although beinghimself apparently without knowledge of German, was assisted by a Germanlawyer who was familiar with the relevant legal provisions; whereas,therefore, there is no question of the existence of any such specialcircumstance; whereas, consequently, the condition as to the exhaustion ofdomestic 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 respectof his above complaint;Whereas his lawyer further states that it was essential for the Applicant tohave legal assistance in the proceedings concerning his deportation andextradition as these proceedings were very complicated; whereas, in thisregard, the Commission has noted that Mr. S was in contact with the Applicantfrom ..., 1966, until ..., 1967; whereas it follows that, during this period,the Applicant was in fact assisted by a lawyer; whereas, however, it is notclear whether he had legal assistance during the earlier part of theproceedings 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 civilrights, everyone is entitled to a "fair hearing"; whereas, in a previous case,the Commission raised, but did not decide, the question whether this provisioncovers 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 uponto decide this question, considering that, in any event, the Applicant hasfailed to show that he has raised with the competent German courts the issueof his legal representation; whereas, therefore, he has not established thathe has exhausted the domestic remedies available to him under German law; andwhereas there is no appearance of any special circumstances which might haveabsolved him from exhausting these remedies; whereas, consequently, thecondition as to the exhaustion of domestic remedies laid down in Articles 26and 27, paragraph (3) (Art. 26, 27-3), of the Convention has not been compliedwith by the Applicant in respect of this part of his Application;Whereas the Commission has finally had regard to the Applicant's complaintsconcerning his extradition to Jugoslavia; whereas it is true that, accordingto the Commission's constant jurisprudence, the deportation or extradition ofa foreigner to a particular country may in exceptional circumstances give riseto the question whether there would be "inhuman treatment" within the meaningof Article 3 (Art. 3) of the Convention; whereas, in this respect, theCommission 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. page480, and No. 2143/64, loc cit. pages 328, 330; whereas, however, anexamination of the present case as it has been submitted does not disclose anyappearance of such exceptional circumstances;Whereas, in this connection, the Commission has noted that the Applicant wa***tradited to Jugoslavia in view of the charges of theft brought against himby the Jugoslavian authorities; and whereas there is no indication that theprinciple of speciality, which applies in extradition cases, would not berespected by the Jugoslavian courts in the criminal proceedings against theApplicant; whereas, therefore, the remainder of the Application is manifestlyill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), ofthe Convention.Now therefore the Commission declares this Application inadmissible.