X. v. THE FEDERAL REPUBLIC OF GERMANY
Doc ref: 4314/69 • ECHR ID: 001-3116
Document date: February 2, 1970
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- Cited paragraphs: 0
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- Outbound citations: 1
THE FACTS
Whereas the facts presented by the applicant may be summarised as
follows:
The applicant states that he is an Egyptian citizen, born in 1945. He
is at present detained in prison in C.
From his statements and the documents submitted by him, it appears
that, on .. March 1969, the police authorities of C. ordered the
applicant's expulsion from the Federal Republic of Germany. On .. March
the police authorities requested the District Court (Amtsgericht) of
C to order the applicant's detention pending his deportation but this
was refused by the Court on .. March. The applicant had stated that he
intended to go to Kuwait where his father lived. He also filed a
petition for asylum and was permitted to stay in Germany until May
1969.On .. October 1969, acting on a new application by the police
authorities, the District Court decided that the applicant should now
be detained pending his deportation. His appeal (Beschwerde) from this
decision was dismissed by the Regional Court (Landgericht) of C. on ..
November 1969. The Regional Court noted the statement by the police
authorities that the applicant had gone into hiding and it further
observed that his petition for asylum had been finally rejected and his
efforts to obtain a passport through the Embassy of Afghanistan has so
far remained unsuccessful.
A new order for the applicant's continued detention pending deportation
was made on .. November 1969.
The applicant states that, being a pacifist, he does not wish to be
deported to Egypt where he would be obliged to serve in the army in the
war against Israel or be sentenced to imprisonment. His fiancée lives
in Germany and he would like to stay there or in a neighbouring state.
He also complains that he is not permitted to drive in his own car,
with all his property, to another country and observes that he could
go to Jugoslavia, together with his Jugoslavian fiancée.
THE LAW
Whereas the applicant complains that his imminent expulsion to Egypt
would result in his being obliged to serve in the Egyptian Army in the
war against Israel or being sentenced to imprisonment;
Whereas the Commission observes that, although the right to political
asylum and the right of a person not to be expelled are not as such
included among the rights and freedoms guaranteed by 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 all 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 Commission's decision of 17
December 1969, on the admissibility of Application No. 4162/69);
Whereas he Commission has accordingly examined whether the applicant's
expulsion to Egypt might constitute inhuman treatment within the
meaning of Article 3 (Art. 3) of the Convention by grossly violating
or suppressing his basic human rights, such as guaranteed by the
Convention (see the Commission's constant jurisprudence, eg.
Applications Nos. 1802/63 - Yearbook of the European Convention of
Human Rights, Vol. 6, page 480 - No. 2396/65 - Baouya v. Federal
Republic of Germany - and No. 3040/67 - Collection of Decisions of the
Commission, Vol. 22, page 138); whereas the Commission does not find
that the facts alleged by the applicant would, if true, amount to such
a violation;
Whereas, in particular, his obligation to perform military service
cannot be considered to violate any of his basic human rights, such as
guaranteed by the Convention; whereas, in this connection, the
Commission has also had regard to Article 4 (Art. 4) of the Convention;
Whereas it is true that paragraph (2) of this Article (Art. 4-2)
provides that no-one shall be required to perform forced or compulsory
labour;
Whereas, however, according to paragraph (3) (Art. 4-3), the term
"forced or compulsory labour" shall not include "any service of a
military character or, in case of conscientious objectors in countries
where they are recognised, service exacted instead of compulsory
military service";
Whereas it follows that the obligation to perform military service must
in principle be regarded as being compatible with the provisions of the
Convention with the result that the applicant's expulsion to Egypt can
in no way be considered to constitute inhuman treatment within the
meaning of Article 3 (Art. 3) of the Convention on the ground that he
would be obliged to serve in the Egyptian army;
Whereas, further, an examination of the case as it has been submitted,
irrespective of any consideration of his expulsion to a particular
country, does not disclose any appearance of a violation of the
applicant's right to leave the Federal Republic of Germany, in
accordance with Article 2 of the Fourth Protocol (P4-2) to the
Convention;
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