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