AS TO THE ADMISSIBILITY Application No. 6189/73 by — 2 against Austria and the Federal Republic of Germany The European Commission of Human Rights sitting in private on 13 May 1974, the following members being present: MM. J. E. S. FAWCETT, President G. SPERDUTI, Vice-President F. ERMACORA F. WELTER L. KASLLUBERG T. OPSAHL K. MANGAN Jd. CUSTERS CG. NØRGAARD J. A. FROWEIN G. JORUNDSSON Mr. A. B. McNULTY, 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 14 June 1973 by < “against Austria and the Federal Republic of Germany, and registered on 12 July 1973 under file No. 6129 73; Having regard to the report provided for in Rule 45 of the Rules of Procedure of the Commission; Having deliberated, Decides as follows. - D 65.998 06.2 6189/73 THE FACTS The facts as submitted by the applicant may be summarised as follows: The applicant is a German citizen, born in 1947, and was when last heard of detained in prison in St. Pölten, Austria. It appears from his statements and some hand-written copies of documents submitted by the applicant that on 22 March 1972 he was convicted by the Regional Court (Kreisgericht) in St. Pölten of theft and other offences and sentenced to four years' severe imprisonment. This decision became final (rechtskräftig). On 18 April 1972 the Regional Court in St. Pölten ordered that the sentence imposed on the applicant would provisionally not be executed. The court stated that the applicant was at the request of the judicial authorities of the Land of Baden-Württemberg in the Federal Republic going to be extradited and that the sentence imposed on him in Austria would be executed as soon as he came back to Austria. The extradition had in fact been ordered by the Court of Appeal (Oberlandesgericht) in Linz on 19 January 1972 and this order was approved by the Austrian Federal Ministry of Justice on 2 February 1972. The approval of the Ministry of Justice was, according to Art. 22, paragraph 2, of the Treaty of 29 September 1958 between the Federal Republic and the Federal Republic of Germany on Extradition given on the condition that the applicant be extradited only temporarily in order that certain court proceedings or interrogations could be carried out in Baden-Württemberg. On the arrest of a Public Prosecutor (Staatsanwaltschaft), the Court of Appeal in Vienna quashed on 30 May the decision of the Regional Court in St. Pölten on 18 April 1972. The Appeal pointed out that the applicant was not extradited definitively but only transferred for a certain period to Baden-Württemberg in order that the judicial authorities of this land could carry out certain proceedings or investigations against him. The German authorities were, however, obliged to hand the applicant back to Austria although he was a German citizen. Such provisional extradition was provided for in the abovementioned Treaty in order to avoid that in a case where definite extradition was not yet possible, the requesting State could at least carry out procedural actions for the preservation of fresh evidence. In these circumstances, so the Court of Appeal concluded, the order of the District Court of St. Pölten had not been necessary because the applicant's provisional extradition had not changed his status as a prisoner of the judicial authorities in Austria. On 27 April 1973, the Public Prosecutor at the Court of Appeal in Stuttgart ordered that the applicant should be transferred to Austria on 3 May 1973. The Public Prosecutor stated that the Ministry of Justice of Baden-Württemberg had, in a letter of 7 October 1971, guaranteed to the Federal Ministry of Justice of Austria that the applicant would be sent back to Austria after his trial in Baden-Württemberg. The applicant was accordingly handed over to the Austrian police and his protest against this measure remained unsuccessful. The German Federal Minister of Justice informed him in a letter of 7 August 1973 that the Federal Constitutional Court (BVerfG 29 183) held in a decision of 14 October 1970 (BVerfG 29 1843) that the retransfer of a German citizen to a foreign country did not violate the Constitution of the Federal Republic if this citizen had been provisionally extradited to Germany by that country. The Federal Constitutional Court had in a letter of 2 July 1973 also referred to its decision of 13 October 1970 and in addition it informed the applicant that the delay for a constitutional appeal against the measure of his retransfer to Austria had expired as this transfer had taken place on 9 May 1973 while the applicant did not write to the Federal Constitutional Court before 19 June 1973. Complaints The applicant is of the opinion that the decision of the District Court in St. Pölten of 18 April 1972 is an expulsion order by which the court at the same time renounced to execute the sentence imposed on him in Austria, or in other words that he does not have to serve his sentence in Austria at all. He complains that this order was wrongly quashed by the Vienna Court of Appeal and that he now has to serve his sentence in Austria. He further complains that, although he had been expelled by the Austrian authorities, and although he is a German citizen, the German authorities sent him back against his will to Austria. He alleges generally a violation of the Convention, especially of Arts. 5 and 6(3)(c) and of Art. 3(1) of the Fourth Protocol. THE LAW The applicant has complained of the decision of the Vienna Court of Appeal on 30 May 1973. Even assuming that this complaint could raise an issue under Art. 6(1) of the Convention, it has to be noted that the decision complained of did in no way change the situation of the applicant who misunderstands the legal position. Contrary to what he believes, the Regional Court in St. Pölten had in its decision of 18 April 1972 not at all renounced definitely the execution of the sentence imposed on him in Austria. Consequently, the Court of Appeal's quashing of this decision did not prejudice the applicant. An examination by the Commission of this complaint as it has been submitted, including an examination made ex officio, does not therefore disclose any appearance of a violation of the rights and freedoms set out in the Convention and in particular in the above Article. It follows that this part of the application is manifestly ill-founded within the meaning of Art. 27 (2) of the Convention. The applicant has further complained that he was sent back to Austria against his will. However, under Art. 25 (1) of the Convention, it is only the alleged violation of one of the rights and freedoms set out in the Convention that can be the subject of an application presented by a person, non-governmental organisation or group of individuals. It is true that Art. 3 (1) of Protocol No. 4 provides protection against expulsion. This term means that a person is obliged permanently to leave the territory of the state of which he is a national without being left the possibility of returning later. The applicant was sent to Austria in order to serve a prison sentence but he was not denied the right to return afterwards to the Federal Republic of Germany. This was a measure of extradition and such measures are not prohibited by Art. 3 (1) of Protocol No. 4 or any other provision of the Convention. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Art. 27 (2). For these reasons, the Commission DECLARES THIS APPLICATION INADMISSIBLE Secretary to the Commission President of the Commission (A. B. McNULTY) (J. E. S. FAWCETT)