Residence Prohibition Order Case (No 2)

CourtRegional Court (Germany)
Federal Republic of Germany, Superior Administrative Court of Mnster
Residence Prohibition Order Case, (2)

The individual in international law Extradition Political crimes Conviction of collaboration with the enemy in time of war Residence prohibition order issued to alien Effect of Protection available to individual The law of the Federal Republic of Germany

The individual in international law Aliens Expulsion of aliens Right of expulsion Order prohibiting continued residence of alien within State's territory Effect of Whether enforceable in respect of alien convicted of political crimes in State of nationality Political crime Protection afforded to individual in cases of extradition Position with regard to expulsion Procedure of expulsion Nature of The law of the Federal Republic of Germany

Summary: The facts:In 1961 the plaintiff, a Belgian national, left Belgium in order to avoid serving the remainder of a prison sentence originally imposed on him for collaboration with German forces during the Second World War. He went to Germany and married a German national there in 1962. In 1965 the defendant authority, learning of his criminal history, issued a residence prohibition order prohibiting his continued residence in the Federal Republic. The plaintiff contested the order unsuccessfully. He appealed.

Held:The appeal was granted and the order prohibiting residence was quashed. Assuming that only Belgium would receive the plaintiff, to expel him from Germany meant returning him to Belgium which involved obliging him to serve the remainder of a sentence passed on conviction of a political crime. Although the protection afforded to the individual in cases of expulsion was often less than that afforded in cases of extradition, here there was no evidence to indicate that the plaintiff constituted a threat to public order or security. He should be allowed to remain within Germany.

The following is the text of the judgment of the Court:

The plaintiff, a Belgian national, was sentenced to twelve years' imprisonment at the end of the war by a [Belgian] military court for his collaboration with the German army. He served eight years of this sentence. After his release from prison he committed several criminal offences, as a result of which he was ordered in July 1961 to serve the remaining two years of his sentence which had been suspended on probation. He evaded the enforcement of this order by leaving Belgium for Germany, where in 1962 he married a German...

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