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Cite as: [1969] ECHR 3

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X. v. THE FEDERAL REPUBLIC OF GERMANY - 4162/69 [1969] ECHR 3 (17 December 1969)

THE FACTS

Whereas the facts presented by the parties and apparently not in
dispute may be summarised as follows:

I. As to the applicant's forthcoming expulsion in general

The applicant was born at T in Poland, in 1928. In 1949 he left his
country and went to the Federal Republic of Germany. On .. September
1953 he was given, by decision of the Federal Office for the
Recognition of Foreign Refugees (Bundesdienststelle für die Anerkennung
ausländischer Flüchtlinge), the status of a foreign refugee. However,
it derives from the applicant's criminal record, which has been
submitted by the respondent Government, that by .. July 1969 the
applicant was convicted on nine occasions for aggravated theft,
aggravated theft in recidivism and attempted theft amounting to a total
of more than 12 years imprisonment. On .. October 1968 the applicant
was convicted by the Regional Court (Landgericht) of Berlin of
attempted aggravated theft in recidivism and sentenced to 1 1/2 years'
imprisonment. At present he is serving this term which is fixed to end
on .. November 1969.

As a result of the applicant's numerous convictions the President of
the Police (Polizeipräsident) of Berlin, by a decision (Verfügung) of
.. November 1967, had already ordered the applicant's expulsion and
deportation. This decision was unlimited with regard to the country
where to the applicant might be expelled, so that the applicant was
likely to be deported to Poland.

On the applicant's appeal (Widerspruch), the Minister of Interior
(Senator für Inneres) of Berlin, on .. June 1968, confirmed the Police
President's decision. The Minister stated that between 1950 and 1968
the applicant had been convicted seven times for theft, and had been
sentenced to a total of 8 years and 11 months' imprisonment (Gefängnis)
and to 1 year's imprisonment (Zuchthaus). Consequently the conditions
laid down in Article 10, paragraph (1), fig. 2 of the Aliens' Act were
fulfilled providing that an alien might be expelled if he had been
convicted for a crime. The Minister further appreciated that the
applicant was recognised as a political refugee and that consequently
he might be expelled under Article 1, paragraph (2) of the said Act
only if this was necessary for important reasons of public security and
order. The Minister stated that the applicant had been convicted
numerous times and that usually he committed new crimes immediately
after his release from prison, consequently only the applicant's
expulsion could effectively protect public security in Germany. Insofar
as a likely expulsion to Poland was concerned, the Minister declared
that Article 14, paragraph (1) in fine, of the said Act provides in
conformity with Article 33, paragraph (2) of the Geneva Convention
relating to the status of refugees, that a refugee, where there are
reasonable grounds for regarding as a danger to the security of the
country in which he is, or who, having been convicted by a final
judgment of a particularly serious crime, constitutes a danger to the
community of that country, might be expelled also to the frontiers of
territories where his life or freedom would be threatened on account
of his race, religion, nationality, membership of a particular social
group or political opinion. The Minister stated furthermore that the
applicant, who had been convicted in 1949 of desertion, would no longer
be prosecuted in Poland, since he had visited Poland in 1961 for
several months without having been arrested.

The applicant then asked for legal aid in order to lodge an appeal
(Klage) with the Administrative Court (Verwaltungsgericht) of Berlin
against this decision. By decision (Beschluss) of .. December 1968 the
Administrative Court rejected the applicant's request for the reason
that this appeal offered no reasonable prospects of success. The Court
held that the Minister of the Interior had not misused his discretion
when applying the provisions of the Aliens Act. The Court also stated
that the applicant constituted a danger to the community and that there
existed no prospects of his forthcoming integration into the community.

On the applicant's appeal the Administrative Court of Appeal
(Oberverwaltungsgericht) of Berlin by decision of .. April 1969
confirmed the lower Court's decision. The Court held that the prison
terms, to which the applicant had been sentenced had not made him keep
away from committing further crimes and he had revealed an inclination
to commit criminal acts. His conduct constituted a grave danger to
public security and order and thus justified his expulsion.

On May 1969, the applicant lodged with the Commission an application
under Article 25 of the Convention. He complained about his forthcoming
expulsion to Poland, which was scheduled for .. November 1969 and
alleged violations of the Convention, since he has to expect a term of
imprisonment for political reasons in Poland.

II. History of the proceedings before the Commission

On . July 1969, a group of three members of the Commission reported to
the Commission that this application appeared to be admissible under
Article 3 of the Convention and that the respondent Government should
be invited to submit its observations on the admissibility of the
application. By the President's order of .. July 1969, the application
was communicated to the Government of the Federal Republic of Germany
for the submission of its observations.

On .. September 1969, the Government of the Federal Republic of Germany
submitted their observations and stated in their opinion that this
application was manifestly ill-founded.

On .. October, the applicant filed with the Commission his reply to
these observations of the Government.

On .. October, another group of three members of the Commission
examined the application in the light of the submissions of the
parties.

III. Submissions of the parties

1. Submissions of the parties with regard to the circumstances of the
applicant's flight from Poland and the consequences of his forthcoming
expulsion to Poland

The applicant alleges that he had left Poland in 1949 in order to avoid
his arrest after having been convicted of desertion and having been
sentenced in his absence to 15 years' imprisonment for political
reasons. Since he could not settle down in West Germany he intended to
return to Poland. His brother, who allegedly then held a fairly high
post in Poland, ensured him that in the case of his returning to Poland
the above sentence would not be enforced. Consequently the applicant
travelled to Poland in 1967. However, he states that he was arrested
upon arrival and alleges that:

"After a thorough interrogation by the Polish political police, my
identity papers, including my residence permit and my exit permit, were
taken away from me. I was told that criminal proceedings had been
instituted - or reopened - against me. After I had given a sympathetic
picture of the Federal Republic to some Polish workers I was accused
of subversive activities on behalf of the Federal Republic of Germany.
Since it was thought that I could be - and had been - effectively
prevented from leaving the country by the withdrawal of my papers, I
was released. After my brother had once more learned that my arrest was
imminent I decided to take refuge once again in the Federal Republic.

I made my way to the "Western frontier" of Poland and swam the Neisse.
A short way beyond Plauen, near the line of demarcation, I was arrested
by the East German frontier police and sentenced by the District Court
of Chemnitz (Karl-Marx-Stadt) to two years and six months' imprisonment
for illegal crossing of the frontier and espionage. It was thought in
East Germany that I had come into the Democratic Republic from the
Federal Republic, via Hof. That was how I escaped being handed over to
Poland."

With regard to his scheduled expulsion to Poland the applicant states
the following:

"From letters received before my arrest I learned from my brother that
the Polish authorities are proceeding against me;

- for illegal exit from Poland;
- for betrayal of secrets and military information to the USA, Great
  Britain, France and the Federal Republic of Germany;
- for desertion from the Polish army;
- for subversive activities stirring up Polish workers, wooing them
  away and inciting them to leave Poland.

The amnesty to which the Federal Republic refers does not apply to me
since I left the Polish Republic illegally more than once. The Polish
authorities say that by my behaviour I have forfeited all favour from
the Polish people. I am in any case sure, if handed over to the Polish
authorities, even if all the other charges fail, of going to prison for
fifteen years, since that sentence has already been passed."

2. In their observations, the respondent Government stated as follows:

"The applicant has submitted in his two letters to the Commission that
he deserted from the Polish army in 1949,. that he was sentenced in his
absence to 15 years' imprisonment (Haft) and that he would have to
expect the enforcement of that sentence if he were to be expelled.

In this connection it should, first, be mentioned that also in the
States Members of the Council of Europe, desertion is quite generally
subject to prosecution. Therefore, the mere fact that this offence will
be prosecuted and punished, cannot be regarded as inhuman treatment
within the meaning of Article 3 of the Convention. There are, moreover,
no concrete indications from which it might appear that the applicant,
as alleged by him, would be in danger of having to serve a sentence of
15 years' imprisonment (Haft) if he were to be expelled to Poland. What
is peculiar in the first place is the fact that the applicant has never
named the court which allegedly sentenced him or the date when the
alleged sentence of "Haft" was imposed. His other allegations in this
connection also are very vague. He has not given any further details
about the reason for which he was sentenced. In his letter of .. May
1969, to the Commission (page 1), he has merely said that he had been
sentenced in criminal proceedings of a political nature. Nor has the
applicant, so far as is known up to now, stated anything regarding the
manner in which he learned about his alleged conviction and sentence.

In these circumstances it must seriously be doubted that he was
actually sentenced to 15 years' imprisonment.

Apart from all this, the danger of an enforcement of a sentence
allegedly pronounced as far back as 1949, cannot be regarded as being
particularly great. The applicant himself has observed in his letter
to the Commission of .. May 1969, (page 1) that this sentence has been
remitted in 1956 under an amnesty.

The applicant himself has quite patently assumed later on that there
would be no danger for him to travel to Poland, for in 1961 he visited
his brother in Danzig and stayed there for several months.

The allegation he made in his letter to the Commission of .. July 1969,
that he had been interrogated by the political police a few days after
his arrival in Danzig and that he had been told that his sentence had
not been remitted, is not worthy of belief. It is inconsistent with the
above-mentioned statement contained in his letter to the Commission of
.. May 1969, according to which the sentence had been remitted under
an amnesty. There is, further more, no reason for assuming that the
Polish political police would have abstained for several months from
arresting him after the alleged interrogation in 1961, if the
enforcement of a prison sentence of 15 years had still been outstanding
against him. The further circumstances that the East German authorities
expelled him to West Berlin suggest the steps against him to enforce
that sentence. For in view of the well-known relations between the
Soviet Zone of Occupation and Poland it would otherwise have suggested
itself that the applicant would be handed over to Poland.

Probably there will be no danger of an enforcement of a sentence
allegedly imposed in 1949 for the further reason that a statutory
limitation has become applicable in the meantime. Under Article 89,
paragraph 1 (b) and (c) of the Polish Penal Code of 1932, which Article
is still in force today, a sentence to penal servitude (Zuchthaus) can
no longer be enforced after 20 years have elapsed since the judgment
became final and in the case of all other prison sentences the
enforcement comes under the statute of limitations after 15 years from
the date on which the judgment became final (see Les Codes Pénaux
Européens, Paris, 1958, Vol. 3, page 1487). If the alleged conviction
of the applicant took place at all, it must be assumed that it came
under the statute of limitations at any rate by the time of his
expulsion.

It is not to be expected that the entry into force of the new Polish
Penal Code - which, by the way, will not enter into force until 1
January 1970 - will alter the situation with regard to the applicant's
case, if there ever has been such a case."

3. Submissions of the parties with regard to the admissibility of this
application

The respondent Government observes that this application appears to be
manifestly ill-founded on the following grounds:

"To begin with, it may be allowed to point out that according to the
Commission's constant practice (see Application No. 3040/67, Collection
of Decisions, Vol. 22, page 133 [136 with further references]), the
Convention does not guarantee to a foreigner the right to live in a
foreign State or the right not to be expelled from that State. The only
point of view from which the application must be considered is,
therefore, whether, because of the presence of exceptional
circumstances, the intended expulsion of the applicant might be
regarded as inhuman treatment within the meaning of Article 3 of the
Convention.

The Federal Government is of the opinion that the rights and freedoms
guaranteed by the Convention cannot be expected to continue according
the applicant asylum. In the past, the applicant has violated the laws
of the Federal Republic of Germany often and severely, grossly abusing
thereby the privilege of being a guest of this country. All in all, he
has lived in the Federal Republic of Germany for 16 years. As is proved
by the appended extract from the criminal records, he was convicted
nine times for major crimes (Verbrechen) alone during that time. He was
sentenced to prison sentences of more than ten years all together and
to a term of penal servitude (Zuchthaus) of one year. This shows that
he spent about two-thirds of his stay in the Federal Republic of
Germany in penal establishments.

The last offence for which he was tried was committed by him before
four weeks had passed since his release from a term of penal servitude
(Zuchthaus). It is therefore to be expected that the applicant will go
on committing crimes even after his release from the detention he is
undergoing at present. A further stay of the applicant in the Federal
Republic of Germany, therefore, constitutes a considerable danger to
the security of the community.

In these circumstances, the proposed expulsion of the applicant is not
inconsistent with the Convention relating to the status of refugees of
29 July 1951. Article 33, paragraph. 2, of that Convention expressly
provides that a political refugee whose life or freedom is threatened,
may nevertheless be expelled or returned if for reasonable grounds he
must be regarded as a danger to the security of the country in which
he is or if, having been convicted by a final judgment of a
particularly serious crime, he constitutes a danger to the community
of that country.

The Convention relating to the status of refugees, which was concluded
on a worldwide level, thus recognises expressly that even political
refugees are not entitled to unlimited asylum. On the contrary, it
follows from Article 33, paragraph (2), that the great number of
parties who have acceded to this Convention, do not regard the
expulsion or return of a refugee as inhuman in circumstances such as
those prevailing in the applicant's case.

A limitation of the right to asylum has also been recognised within the
framework of the Council of Europe. On the initiative of the
Consultative Assembly, the Committee of Experts on Human Rights has
prepared and presented to the Committee of Ministers a draft resolution
on the right of asylum. The Committee of Ministers has adopted this
draft by its Resolution (67) 14 of 29 June 1967. This resolution which
refers expressly to the principle guaranteed by Article 3 of the Human
Rights Convention that no-one shall be subjected to inhuman treatment,
provides under No. 3 that keep a political refugee in their country if
expulsion or any other measure is necessary for protecting the national
security or the community from serious danger.

It follows from this that Article 33, paragraph 2, of the Convention
relating to the status of refugees, which conforms to a considerable
extent with No. 3 of Resolution (67) 14, has been considered consistent
with Article 3 of the Convention on Human Rights.

For the above-stated reasons the Federal Government is of the opinion
that the application is manifestly ill-founded and therefore applies
for the application to be declared inadmissible under Article 27,
paragraph (2), of the Convention."

The applicant replied to these statements as follows:

"On .. September 1953 I was recognised by the Federal Republic as a
foreign refugee but received no identity papers until .. July 1956.

As a result I could not look for work or settle down in the community.
I was forced to linger on in foreign refugee camps and hence was
particularly prone to turn to crime for a bare living. I was sent to
prison five times - three of them for serious theft. It is not correct
to say that I was warned by the Aliens Office of Soest; that authority
realised that I was only been driven to crime for lack of identity
papers and so made me out an alien's passport.

Even with the alien's passport I could not get work. My convictions and
my ignorance of German administrative formalities meant that employers
rejected me. I was again forced to live in camps for foreigners and to
apply for unemployment relief. Then I was once more sentenced to two
years' imprisonment for theft. After my discharge on .. August 1960 I
succeeded in getting work with the English Defence Forces as a
dogkeeper at M. After a short time I lost my job because in the
meantime it had been discovered that I had several convictions. There
were no possibilities of work offering.

It is not correct as stated by the Berlin Senate and the Government of
the Federal Republic that I was given opportunities of work. On the
contrary, every effort was made to prevent me from working. Every
chance of leading the life of a normal citizen was refused me the
Federal German authorities from the start. That is why I found myself
back in the vicious circle of the courts. My fresh crimes were
committed to keep myself alive. I do not say this as an excuse but so
that my present situation may be better understood.

Finally, the applicant states that the crimes which he had committed
were all of minor importance and that they would not justify the
application of Article 33, paragraph (2) of the above cited Geneva
Convention relating to the status of refugees.

THE LAW

Whereas, the applicant complains that his imminent expulsion to Poland
would result in his being arrested in order to serve a 15 years'
sentence which he received in 1949 for desertion from the Polish army;
Whereas the applicant also complains that, in the event of his being
expelled to Poland, he would be prosecuted for having left that country
illegally, for betraying secrets and military information to the USA,
Great Britain, France and the Federal Republic of Germany, for
desertion from the Polish army and, finally, for subversive activities
by inciting Polish workers to leave Poland; whereas it is to be
observed that, although the right to political asylum and the right for
a person not to be expelled are not as such included among the rights
and freedoms set forth in the Convention , the Contracting Parties
nevertheless have agreed to restrict the free exercise of their powers
under general international law, including the power to control the
entry and exit of aliens, to the extent and within the limits of the
obligations which they have assumed under the Convention; whereas,
therefore, the expulsion of a person may, in certain exceptional cases,
be contrary to the Convention and, in particular, to Article 3
(Art. 3) thereof (see the Decisions of the Commission on the
admissibility of Applications Nos. 2396/65 of 22 December 1967 and
3354/68 of 30 May 1968);

Whereas the only issue arising in this application which might fall
within the scope of the Convention is the question whether or not the
applicant's expulsion to Poland might constitute inhuman treatment
within the meaning of Article 3 (Art. 3) of the Convention by grossly
violating or entirely suppressing the applicant's basic human rights
(see the constant jurisprudence of the Commission, eg applications Nos.
1802/63, Yearbook, Vol. VI, p. 463, 2396/65, S. v. the Federal Republic
of Germany and 3040/67, Collection of Decisions, Vol. 22, p. 136,
4050/69);

Whereas the question whether or not the decision of the German
authorities were covered by the Geneva Convention of 1951 on the Status
of Refugees is not an issue as such to be examined by the Commission;

Whereas it is true that the applicant alleges that if expelled to
Poland, he would be prosecuted on certain charges;

Whereas the Commission notes that, with the exception of the crime of
subversion all the said offenses are held to be offenses in almost all
the countries of the Council of Europe; whereas, even supposing that
the applicant's allegations were well-founded, it could hardly be
maintained that the punishment for these offenses as such would
constitute a violation of Article 3 (Art. 3); whereas, as regards the
applicant's allegation that he would be prosecuted for subversion, the
applicant has not submitted any proof in this respect in spite of
various requests by the Commission; and whereas, in particular, the
applicant does not allege that he expects discriminatory treatment by
the Polish authorities by reason of his political opinions, his
religion or his race, whereas an examination made ex officio, does not
therefore disclose any appearance of a violation by the Federal
Government of the rights and freedoms set forth in the Convention ;
whereas, in these circumstances, the applicant's expulsion to Poland
would not constitute a violation of Article 3 (Art. 3);

Whereas it follows that 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