COUNCIL OF EUROPE EUROPEAN COMMISSION OF HUMAN RIGHTS DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY Application No. 7704/76 by K G against the Federal Republic of Germany The European Commission of Human Rights sitting in private on 11 March 1977, the following members being present: MM. G. SPESDUTI, Acting President C.A. XENZRICARD J. CUSTERS C.H.F. POLAK J.A. FROWEIN G. JORUNDSSON S. TRECHSEL B. KIERNAN N. KLECKER Mr H.C. KRUGER, Secretary to the Commission Having regard to Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 13 November 1976 by 48 persons of the K tribes R > De and N, who are represented by Mrs. S. Sobeck, Cologne, against the Federal Republic of Germany and registered on 15 November 1976 under file No. 7704/76; Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission; Having regard to the Commission's decision of 15 December 1973 to request information from the Parties; Having regard to the information supplied by the Federal Government on 12 January 1977 and the comments of the applicants submitted on 22 February 1977; Having deliberated, Decides as follows: - THE FACTS 1. The facts of the case, as submitted by the Parties, may be summarised as follows: 2. According to the applicants, the application concerns 120 persons. These are stateless gypsies of the K tribes R > De and N. Originally they came from Yugoslavia and Bulgaria. 3. The applicants are represented before the Commission by Mrs. S. Sobeck, who is a social worker of a religious charity organization in Cologne (Diözesan-Caritasverband für das Erzbistum Köln). Mrs. Sobeck is assisted by Mr. P. Jochum, who is a barrister practising in Cologne. Mrs. Sobeck has submitted a general power of attorney for all gypsies concerned as well as individual powers of attorney for 42 named applicants, listing personal details. In the enquiries carried out by the Federal Government on the basis of information from the applicants, 47 persons appear as concerned. 4. The applicants have been travelling through various European countries for the past ten years. Until recently they were staying in the Netherlands. Most of their cars are registered in that country. According to the applicants, the police in the Netherlands forced them over the border to Germany at the end of September 1976. Once in Germany, they continued to Cologne. All the gypsies concerned were sojourning in two groups in different camps in Cologne. 5. Since 26 October 1976, some 20 persons among the applicants have been arrested and convicted of offences, inter alia, against the Aliens’ Act. However, their sentences were not implemented as deduction was made for their detention on remand. In some cases, proceedings were also discontinued. 6. On 3 November 1976, the City of Cologne decided to expel all the applicants - except two whose expulsion had been ordered previously, and two others who had valid passports - and to order that they should never be readmitted. The expulsion orders were all held in identical terms. The City of Cologne established that the applicants had entered the Federal Republic illegally and were vagabonding. As the applicants were considered to constitute a danger to public safety, their expulsion orders were to have immediate effect. It was also envisaged that the applicants should return to the Netherlands. Five applicants refrained from appealing, but the others lodged objections and at the same time they petitioned the Administrative Court at Cologne for respite. Meanwhile, on 6 November 1976, a few representatives of the applicants attempted to return to the Netherlands but were refused entry at the border. The applicants also addressed themselves to the Minister for the Interior in North Rhine-Westphalia, who advised them on 8 December 1976 that the Netherlands had refused to admit them in accordance with the informal procedure contemplated by the Agreement between the Federal Republic and the Benelux States on Reception of Persons at the Border. However, the Federal Minister for the Interior was requesting the Dutch Minister of Justice for their formal admittance. Pending the latter's decision, the applicants would be authorized provisionally to stay in Germany. 7. The Federal Government has informed the Commission that on 4 January 1977, the Dutch Ministry of Justice had stated that the Netherlands were prepared to admit the applicants. 8. On 15 February 1977, the majority of the applicants, 33 in all, arrived at a settlement before the Administrative Court at Cologne whereby the expulsions of 79 members of the R family were limited to two years. These applicants accepted to leave the Federal Republic voluntarily with their families and to go back to the Netherlands. It was envisaged that they would return to the Netherlands on 20 January 1977. However, when the time came, they refused to go back. They were then informed that the Dutch authorities had put a large camping site at Lelystad at their disposal and they were also reassured that they would have full freedom of movement. New preparations were then made in order that the applicants could return on 2 March 1977. It seems that they actually returned on that date (cf Frankfurter Allgemeine 3.3.77 p. 8). As regards the remaining applicants, the admittance negotiations have not yet been concluded. The complaints 9. Originally, the applicants stated that they had reason to believe that the Federal Republic was taking action against the Netherlands with regard to their alleged expulsion and the refusal of re-entry. Consequently, they were not lodging their application against the Netherlands. 10. They submitted that they were absolved from exhausting the remedies available to them under German law because their expulsion and connected measures could be implemented irrespective of their recourse to those remedies. 11. In the first place, however, the applicants complained that Art. 3 was being violated. They submitted that their treatment was degrading because the authorities assumed that they were stateless persons and therefore also criminals. The applicants have further explained that they resisted returning to the Netherlands, since, as they lacked identity documents, nothing would in their view stop the Netherlands from expelling them legally, or from even illegally sending them off again on the "Route du Soleil" to Belgium, from where they would have to go to France and then to Italy and finally the Balkan States. 12. Moreover, they complained that Art. 14 was also being violated in that their treatment was discriminatory. They considered that the reasons for their expulsion were their ethnic peculiarities, language, unclear nationality, and their position as a minority. 13. The applicants finally alleged that their expulsion was a case of collective expulsion and that Art. 4 of Protocol No. 4 was being violated. They pointed out that all members of their group were being dealt with in the same fashion and that all the expulsion orders were held in identical terms. Moreover, they felt associated and were also being dealt with as being associated. THE LAW 1. The applicants in the present application have complained about their expulsion from the Federal Republic of Germany. They have alleged in this context that they were being treated in a degrading way contrary to Art. 3 of the Convention, which provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. They have alleged further that their expulsion was a case of collective expulsion, which is prohibited in Art. 4 of Protocol No. 4, and that this expulsion was discriminatory in relation to Art. 14 of the Convention. The Commission first observes that, in accordance with its established case law, no right to reside in a particular country other than that of which the person concerned is a national is as such guaranteed by the Convention or its Protocols. Nevertheless, issues might arise under Art. 3 of the Convention where the expulsion measure taken by the domestic authorities might amount to treatment contrary to that provision. The Commission has considered such an issue to arise in cases where a person is continuously being sent from one country to another because he is not allowed to remain anywhere and is unable to return to his country of origin (cf Decision No. 5399/72 v. Belgium, Collection of Decisions No. 40, p. 72). However, under Art. 25 of the Convention, the Commission may only receive petitions from persons who claim to be victims of a violation of the rights and freedoms set out in the Convention. Furthermore, under Art. 26 of the Convention, the Commission may only deal with the matter after all domestic remedies have been exhausted, according to the recognised rules of international law. This latter provision imposes an obligation on any person who considers that his Convention rights have been violated to seek redress first from the national authorities and courts before the Commission can consider his claims. In the present case, the Commission is concerned with 44 persons against whom expulsion orders had been made by the competent authority of the City of Cologne on 3 November 1976. Four further applicants are apparently not affected by the order. Of the 44 persons, five applicants refrained from appealing against the expulsion order made against them and they have therefore clearly not exhausted the domestic remedies available to them under German law. A further 29 applicants, who belonged to the R family, arrived at a settlement of their claims in the appeal proceedings before the Administrative Court in Cologne. These applicants accepted to leave the Federal Republic voluntarily and to go back to the Netherlands. They can therefore no longer claim to be victims of any violation of the Convention. Insofar as these applicants nevertheless maintain their claims under the Convention, the Commission observes that, by using the domestic remedies available, they have, in the framework of the settlement of their domestic cases, accepted to leave the Federal Republic under conditions negotiated between themselves and the Federal Government acting in cooperation with the Netherlands Government. They have thus renounced the use of further local remedies and the possibility of obtaining a determination on the merits of their claims before the domestic authorities and courts. They have therefore also failed to exhaust the remedies available to them under German law within the meaning of Art. 26 of the Convention. The remaining 10 applicants, who belong to the D and N families, did not settle their cases and it seems that admittance negotiations with the Dutch Government have not yet been concluded in their cases. The proceedings in these cases are apparently still pending before the Cologne Administrative Court. It follows that again the domestic remedies available to them under German law have not been exhausted within the meaning of Art. 26 of the Convention. Even assuming, however, that these applicants would be able to show that they should be considered as having exhausted the domestic remedies within the meaning of Art. 26 of the Convention, the Commission finds that an examination of their cases as they have been submitted does not disclose any appearance of a violation of the rights and freedoms protected under the Convention and, in particular, under Art. 3 of the Convention or under Art. 4 of Protocol No. 4. In this connection, the Commission observes that the situation described above as giving rise to a question under Art. 3 of the Convention, namely the so-called "shuttlecock" situation, has not been established in the present case. In the first place, it has not been possible to establish with certainty that the applicants have been sent away by the Netherlands authorities; secondly, the transfer of the applicants back to the Netherlands is made in accordance with the Agreement between the Federal Republic of Germany and the Benelux States on the Reception of Persons at the Border; and, finally, there are indications that they will be allowed to remain in the Netherlands. Furthermore, insofar as Art. 4 of Protocol No. 4 is invoked, the Commission recalls its view from a previous case, "that 'collective expulsion of aliens' means any measure of the competent authority compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group" (see Decision on Admissibility of Application No. 7011/75, Becker v. Denmark, Decisions and Reports No. 4 p. 215 at p. 235). Although these applicants of the D and N families and their children may be compelled as a group to leave the territory of the respondent Government, their expulsion cannot be regarded as a collective measure. The fact that their expulsion orders are held in identical terms is not in itself evidence that they are being expelled collectively and there is no corroboration for any such inference. On the contrary, the facts of the whole application show that, although the applicants act as a group, or rather as two groups, the official processing of the matter also shows several individual variations within these groups. Furthermore, the applicants were not, or are not, being dealt with in a way which they themselves have not proposed or accepted. Finally, insofar as the applicants allege that their expulsion by the Federal Republic is discriminatory on various grounds and therefore contrary to Art. 14 of the Convention, the Commission observes that Art. 14 protects against discrimination only with regard to the "enjoyment of the rights and freedoms set forth in this Convention." However, the Commission has just referred to its established case law whereby no right to reside in a particular country is as such guaranteed by the Convention. Consequently, no issue arises under Art. 14 of the Convention in the context of the applicants' expulsion. It follows that all the applicants’ complaints fall to be rejected under Art. 27(2) and (3) of the Convention.

For these reasons, the Commission DECLARES THIS APPLICATION INADMISSIBLE. Secretary to the Commission Acting President of the Commission (H.C. KRUGER) (G. SPERDUTI)