Information Note on the Court’s case-law No. 89
September 2006
Agbovi v. Germany (dec.) - 71759/01
Decision 25.9.2006 [Section V]
Article 35
Article 35-1
Exhaustion of domestic remedies
Acceptance by the applicant of an agreement at domestic level waiving the right to bring his complaints before the domestic courts: inadmissible
The applicant, a Togolese national, had two children from his first marriage in Germany and remarried in that country after a divorce. He applied unsuccessfully for an extension of his residence permit. An appeal to the Federal Constitutional Court was declared inadmissible on the ground that the decisions appealed against and the main documents required for a proper constitutional review had been received only after the statutory period had expired, without any sufficient justification being received within that period. Directions were given for the applicant’s removal from Germany. He then secured the right to have his exclusion period limited to one year. In proceedings before the administrative court the administrative authority undertook to rescind the limited-duration exclusion order if the European Court of Human Rights gave a decision in the applicant’s favour. In the event of a negative decision the applicant would have to leave Germany voluntarily, failing which he would be removed. As a precondition for the limitation of his exclusion period the applicant was required to pay, within one year, the costs incurred for his removal, amounting to approximately 63,000 euros. The applicant was subsequently granted a two-year residence permit on humanitarian grounds.
Inadmissible under Article 8 for non-exhaustion of domestic remedies – In so far as the applicant complained of the removal measure, his constitutional appeal had been declared inadmissible because he had not filed the required documents on time. He had not therefore exhausted the domestic remedies.
In so far as he complained of only having obtained a temporary residence permit, the question of whether he retained “victim” status within the meaning of Article 34 arose. In any event, the Court noted that, in accordance with the agreement entered into with the administrative authority in the administrative court proceedings, the applicant had undertaken to leave Germany voluntarily and to pay for the costs of his removal. In the Court’s opinion, by accepting that agreement the applicant had waived his right to bring his complaints before the German courts and had accordingly failed to exhaust the domestic remedies available under German law.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy