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AS TO THE ADMISSIBILITY OF

Application No. 22012/93

by C. B.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 11 January 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 April 1993 by

C. B. against Germany and registered on 9 June 1993 under file

No. 22012/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German citizen born in 1954. He lives in

England and is represented before the Commission by Mr. J.P. Gardner,

solicitor, and Mr. K. De Haan, barrister, both of London.

The facts of the application, as submitted by the applicant's

representatives, may be summarised as follows.

In 1976 the applicant was convicted in Germany of attempted theft

and sentenced to three years' imprisonment. In December 1978 he was

released on four years' probation. In 1983 he was convicted of fraud

and sentenced to two and a half years' imprisonment. The sentence was

confirmed on appeal.

In December 1989 the applicant moved from France, where an

extradition request had been granted but not implemented, to England.

On 15 March 1990 the Dortmund District Court (Amtsgericht) issued

an arrest warrant against the applicant in respect of robbery charges

allegedly committed between April and July 1983. On 6 April 1990 the

applicant's extradition was requested in connection with these charges.

An order to proceed was issued by the Secretary of State on

9 April 1990. A further request for extradition was made in respect

of the balance of the sentences imposed in 1976 and 1983. An second

order to proceed was issued on 6 July 1990.

Extradition was refused in respect of the order of 9 April 1990

but granted in respect of the order of 6 July 1990. The applicant was

surrendered to the German authorities on 13 November 1990 and released

on 21 March 1991 by the Hagen Regional Court (Landgericht) on the

ground that the time he had spent in prison in England awaiting

extradition could be taken into account. He returned to England.

On 6 June 1991 the Dortmund District Court issued a further

arrest warrant again alleging the charges in the request for

extradition of 6 April 1990 (ie the matters in the arrest warrant of

15 March 1990), and also alleging three other offences from the period

1980-81. The Dortmund Regional Court rejected the applicant's

challenge to the arrest warrant on 14 November 1991. His appeal to the

Hamm Court of Appeal (Oberlandesgericht) was rejected on 27 August 1992

and his constitutional appeal was rejected by a committee of three

judges of the Federal Constitutional Court on 30 October 1992 (served

on the applicant's representatives on 4 November 1992).

COMPLAINTS

The applicant alleges a violation of Article 5 of the Convention.

He considers that the provision protects individuals not merely from

unlawful incarceration, but also from harassment by the authorities.

He also alleges a violation of Article 6 para. 2 of the

Convention in that, inter alia, "[i]t is not sufficient for the German

courts the establish that there is some evidence (however shaky) in

respect of the alleged offences in the arrest warrant. They must take

into account the object and purpose of Article 5 of the Convention in

protecting the individual from the risk of arbitrariness. ...".

The applicant sees a violation of Article 8 of the Convention in

that the consequences of the arrest warrant in that he is de facto

prevented from visiting Germany, where there are members of his family

who are unable to travel themselves, and that this interferes

disproportionately with his private and family life. He also regards

the continued existence of the arrest warrant as a substantive

prohibition on his right to enter and leave the country of which he is

a national, namely Germany, in violation of Article 3 para. 2 of

Protocol No. 4.

THE LAW

1. The applicant alleges a violation of Article 5 (Art. 5) of the

Convention by virtue of the continuing existence of an arrest warrant

against him.

The Commission notes that the applicant has not in fact been

detained pursuant to that arrest warrant. Whilst the Commission has

in the past accepted that Article 5 (Art. 5) may extend to

circumstances involving threats of unlawful detention (cf., for

example, No. 8334/78, D.R. 24, p. 103, at p. 107) it finds that no such

circumstances pertain in the present case.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also alleges a violation of Article 6 para. 2

(Art. 6-2) of the Convention.

The Commission finds that the applicant's complaints in this

respect are of the nature of procedural complaints concerning criminal

proceedings which have not yet been completed. They do not raise any

issues under Article 6 para. 2 (Art. 6-2) of the Convention.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. Finally, the applicant complains that the effect of the

outstanding arrest warrant is effectively to prevent him from entering

and leaving Germany. He sees a violation of Article 8 (Art. 8) of the

Convention and of Article 3 para. 2 of Protocol No. 4 (P4-3-2) to the

Convention.

The Commission finds that, to the extent that the mere existence

of an arrest warrant is capable of amounting to an interference with

the rights guaranteed by Article 8 (Art. 8) of the Convention, the

interference is justified in the present case for the prevention of

crime, within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention. In particular, although the warrant of 6 June 1991

relates, as the applicant says, to the charges in respect of which

extradition was refused, it is broader than that and also relates to

three new charges.

As to Article 3 para. 2 of Protocol No. 4 (P4-3-2) to the

Convention, the Commission finds that this provision relates not to

measures which affect an applicant's desire to enter a country, but

rather to actual deprivations of individuals' right to enter the

country of which they are a national. The deprivation may be more or

less formal, but the Commission finds that the present case does not

disclose any such deprivation.

It follows that these complaints are also manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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C.B. v. GERMANY

C.B. v. GERMANY

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