AS TO THE ADMISSIBILITY OF
Application No. 25168/94
by Aziz AKBAS
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 14 September 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
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 28 July 1994 by
Aziz AKBAS against Germany and registered on 16 September 1994 under
file No. 25168/94;
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 facts, as they have been submitted by the applicants, may be
summarised as follows.
The applicant, born in 1969, is a Turkish national who in 1975
joined his mother and sister living in Germany. In June 1993 the
applicant married a Turkish national, born in Turkey in 1972, who had
apparently come to Germany during her childhood. When lodging his
application the applicant was resident in Dortmund. Before the
Commission, he is represented by Mr. C. Petlalski, a lawyer practising
in Dortmund.
On 23 March 1989 the Dortmund District Court (Amtsgericht)
convicted the applicant of theft and sentenced him, as a juvenile, to
six months' imprisonment on probation. On 28 April 1989 the Dortmund
District Court convicted him of theft and, taking into account his
previous conviction, sentenced him, as juvenile, to seven months'
imprisonment on probation. On 26 March 1990 the Dortmund Regional
Court convicted the applicant of dangerous assault and, taking into
account the previous convictions, sentenced him, as a juvenile, to ten
months' imprisonment on probation. On 12 June 1991 the Dortmund
District Court convicted the applicant of driving without a driving
licence and imposed a fine of DM 600.
On 5 February 1992 the Dortmund District Court sentenced the
applicant of drug trafficking and of theft on four counts and sentenced
him, as a juvenile, to one year and ten months' imprisonment. The
execution of the sentence was to be suspended on the condition that the
applicant would undergo a drug therapy. He was released from prison
in April 1992 and participated in a drug therapy which he terminated
in April 1993.
On 15 March 1993 the Hassberge County Administration
(Landratsamt) informed the applicant about its intention to refuse his
request for a prolongation of his residence permit and to request him
to leave the Federal Republic of Germany in view of his conviction of
drug trafficking and theft, and invited him to submit any comments
which he might wish to make. The applicant, represented by counsel,
filed his observations on 1 April 1993.
On 5 May 1993 the Hassberge County Administration refused the
applicant's request for a prolongation of his residence permit and
ordered him to leave Germany. The applicant was requested to leave
within eight weeks after the service of the decision, or in case of a
stay of execution, within eight weeks after a final decision. The
County Administration also ordered his expulsion in case that he should
not leave Germany in time.
In its decision, the County Administration, having noted the
applicant's conviction of drug trafficking, found that the conditions
for an expulsion order under S. 47 para. 2 (2) of the Aliens Act
(Ausländergesetz) were met. According to this provision, aliens are,
as a rule, to be expelled (Regelausweisung), if they were involved in
drug trafficking.
The County Administration also considered whether there were
special circumstances to the effect that the applicant's expulsion
would appear as unreasonable hardship. In this respect the
Administration observed that the applicant had come to Germany at the
age of six and that his expulsion gravely interfered with his personal
situation. However, he had seriously violated the interests of the
Federal Republic of Germany. Referring to the case-law of the Federal
Constitutional Court (Bundesverfassungsgericht), the Administration
recalled that in general drug offences were a particularly serious
reason justifying the expulsion of an alien and outweighed even
important private interests. The applicant could be expected to adapt
to the living situation of his home country Turkey. The fresh start
in his life, namely without drugs, could not justify his further stay
in the Federal Republic, either. As regards his mother's stay in
Germany, the Administration found that the applicant, being 23 years
old, could be expected to life on his own and to entertain the family
relations on the basis of visits in Turkey.
The applicant lodged an administrative appeal (Widerspruch) on
3 June 1993.
On 23 June 1993 the Würzburg Administrative Court (Verwaltungs-
gericht) dismissed the applicant's request for a stay of execution of
the decision of May 1993. The Court found that the applicant's
administrative appeal and envisaged action against the decision
refusing his request for a residence permit and ordering him to leave
Germany did not offer any prospect of success. The Administrative
Court, having regard in particular to his conviction of February 1992,
considered that the decision was in accordance with the relevant
provision of the Aliens Act. The Administrative Court further
confirmed in detail the findings of the Administration that the
applicant had failed to show any special circumstances that he would
require protection against expulsion. In this respect, the Court also
took into account the applicant's submission that he intended to marry
a Turkish national with a residence permit in Germany. The drug
therapy had been in the applicant's own interest and, in view of his
numerous other convictions which did not relate to his drug
consumption, could not be regarded as special circumstance either.
On 23 November 1993 the Bavarian Administrative Court of Appeal
(Verwaltungsgerichtshof) dismissed the applicant's appeal. The Court
confirmed the considerations of the lower instances. Moreover,
according to the Administrative Court of Appeal, there was no
indication of a violation of the applicant's right to respect for his
family life under Article 8 para. 1 of the Convention as his expulsion
was justified under Article 8 para. 2. Taking into account that the
applicant had committed numerous, partly serious, criminal offences,
the termination of his residence in Germany was necessary for the
prevention of disorder and crime. The applicant had committed his
offences during an important lapse of time and not only as juvenile,
but also as adolescent. The applicant had taken a criminal development
and was likely to commit further criminal offences. Moreover, the
applicant had not fully integrated in Germany, in particular he had not
learnt a profession and did not succeed in staying for longer periods
with his various employers. He could thus be expected to see his way
in Turkey. Finally, the applicant's marriage with a Turkish national
six weeks after the decision of 5 May 1993 could not be regarded as
exceptional circumstance on the ground that the spouses were aware that
the applicant's residence in Germany was about to terminate.
On 24 January 1994 the Federal Constitutional Court (Bundesver-
fassungsgericht) refused to admit the applicants' constitutional
complaint (Verfassungsbeschwerde).
On 22 February 1994 the applicant's child was born.
On 3 August 1994 the Diet of the Land Bayern refused the
applicant's petition.
On 23 March 1995 the Dortmund Aliens Office (Ausländeramt)
reminded the applicant that he has to leave Germany, and invited him
to pass at the Office in order to arrange for his departure.
It does not appear whether the applicant has meanwhile left
Germany.
COMPLAINTS
The applicant complains under Article 8 of the Convention about
the decision of May 1993 refusing his request for a residence permit
and ordering him to leave Germany.
THE LAW
The applicant complains that the decision of the Hassberge County
Administration of May 1993 will separate the applicant from his family
in Germany. He relies on Article 8 (Art. 8) of the Convention which
states, so far as relevant:
"1. Everyone has the right to respect for his private and
family life ...
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society ... for the
prevention of disorder or crime, ... "
The Commission notes that the applicant lodged an administrative
appeal against the decision of May 1993, and subsequently exhausted
remedies in court proceedings with a view to obtaining a stay of
execution. In these proceedings the administrative court, in a summary
nature, considered the applicant's prospects of success regarding his
appeal in the main proceedings. The applicant did not show that he
also exhausted the remedies available to him in the main proceedings
regarding the decision in question. The question, therefore, arises
whether the applicant exhausted domestic remedies, as required by
Article 26 (Art. 26) of the Convention. However, this question can be
left open as the application is anyway manifestly ill-founded for the
following reasons.
The Commission recalls that no right of an alien to enter or to
reside in a particular country is as such guaranteed by the Convention.
However, the expulsion of a person from a country where close members
of his family are living may amount to an infringement of the right to
respect for family life guaranteed in Article 8 para. 1 (Art. 8-1) (see
Eur. Court H.R., Moustaquim judgment of 18 February 1991, Series A no.
193, p. 18, para. 36; No. 9203/80, Dec. 5.5.81, D.R. 24 p. 239).
The Commission finds that the decision refusing the applicant's
request for a residence permit and ordering him to leave Germany
interferes with his right to respect for family life within the meaning
of Article 8 para. 1 (Art. 8-1). Such interference is in breach of
Article 8, unless it is justified under Article 8 para. 2 (Art. 8-2)
of the Convention.
As regards the lawfulness of the interference, the Commission
observes that the German authorities, when ordering the first applicant
to leave Germany, relied on Section 47 para. 2 (2) of the Aliens Act.
The interference was therefore "in accordance with the law" within the
meaning of Article 8 para. 2 (Art. 8-2).
Moreover, when ordering the first applicant to leave Germany, the
German authorities considered that the applicant had been convicted of
serious drug offences and that the impugned measure was in the interest
of the prevention of disorder and crime. This is a legitimate aim
mentioned in Article 8 para. 2 (Art. 8-2).
As regards the question whether the interference complained of
was "necessary in a democratic society", the Commission recalls that
the Contracting States enjoy a certain margin of appreciation in
assessing whether such a need for an interference exists, but it goes
hand in hand with European supervision (see, Eur. Court H.R., Berrehab
judgment of 21 June 1988, Series A no. 138, p. 15, para. 128; Funke
judgment of 25 February 1993, Series A no. 256-A, p. 24, para. 55).
The Commission notes that the administrative authorities had
regard to the applicant's private and family situation. The German
administrative courts also considered in detail the first applicant's
long stay in Germany and the situation of his family, including his
marriage following the expulsion order in May 1993, and weighed his
private and family interests against the public interest in his leaving
the country, based on his conviction for drug offences and his previous
criminal record.
In these circumstances, the Commission considers that there are
relevant and sufficient reasons for the challenged order to leave
Germany. Weighing the applicant's private and family interests, and
the public interests at stake, the Commission finds that the German
authorities did not overstep the margin of appreciation left to them.
Consequently, the interference with the applicants' right to
respect for their private and family life was justified under Article 8
para. 2 (Art. 8-2) in that it can reasonably be considered "necessary
in a democratic society ... for the prevention of disorder and crime."
Thus there is no appearance of a violation of Article 8 (Art. 8) of the
Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy