AS TO THE ADMISSIBILITY OF
Application No. 12131/86
by B.A.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 2 March 1987, the following members being present:
MM. C. A. NØRGAARD, President
J. A. FROWEIN
S. TRECHSEL
B. KIERNAN
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
F. MARTINEZ
Mr. H. C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 October 1985
by B.A. against the Federal Republic of Germany and registered on
23 April 1986 under file N° 12131/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen, born in 1948 and at present
detained at Butzbach prison, Federal Republic of Germany.
He has been living in Germany since 1972. In 1973 his wife,
also a Turkish citizen, joined him there. Two of their four children
are living in Turkey, the other two, one of whom is handicapped, are
living in Germany.
In November 1979 the applicant tried to smuggle 9.3 kilograms
of hashish from Germany into Switzerland, but was arrested at the
German/Swiss border. He apparently confessed to this offence and was
subsequently convicted of illegal drug trafficking by the Darmstadt
Regional Court (Landgericht) on 27 July 1982, and sentenced to one
year's imprisonment. The execution of this sentence was, however,
suspended for three years.
The applicant submits that before and also after the trial he
and various family members were threatened for having incriminated an
accomplice.
On 11 December 1982, the applicant was again arrested when a
package containing 400 grams of heroin was handed over to him at the
Munich Central Station. The applicant submits that he did not know
that this package contained heroin.
On 25 November 1983 he was convicted by the Munich Regional
Court I (Landgericht I) and sentenced to eight years' imprisonment for
illegal drug trafficking but this judgment was partly set aside on
5 July 1984 by the Federal Court of Justice (Bundesgerichtshof).
Thereupon, on 14 December 1984, the applicant was convicted by another
chamber of the Munich Regional Court I of complicity in illegal
drug trafficking and sentenced to five and a half years' imprisonment.
An appeal on points of law (Revision) filed on 20 December 1984 was
withdrawn on 14 January 1985. Thereby the judgment became final. On
23 January 1985 the applicant's defence counsel received the reasoned
judgment.
On 6 March 1985 the applicant requested a re-trial. This
request was declared inadmissible by the Augsburg Regional Court on
24 July 1985, the applicant's appeal (sofortige Beschwerde) being of
no avail.
In view of these two convictions, the applicant was expelled
(ausgewiesen) from the Federal Republic of Germany by an order of the
City of Munich of 15 April 1985 which was served on his lawyers on
23 April 1985. Additionally, he was ordered to be deported
(abgeschoben) after having served his sentence. Apparently his
deportation was due to take place in February 1987.
COMPLAINTS
Invoking Article 2 of the Convention, the applicant complains
that his life and that of his family were not protected by the German
authorities when he was threatened after having incriminated his
accomplice.
He further complains under Articles 5 and 6 of his arrest and
conviction by the Munich Regional Court. He claims to be the victim
of a plot. The Courts had not admitted evidence on his behalf and had
not been impartial.
He further submits that Article 6 para. 2 was violated as he
was presumed guilty before having been convicted.
As an effective remedy had been denied him, Article 13 had
been violated.
The applicant further complains about conditions at Butzbach
prison, invoking Article 14.
He also alleges a violation of Article 17 of the Convention.
Finally, he complains about his expulsion and deportation,
which would uproot his family and deprive his handicapped child of the
medical care needed. He invokes Article 14 of the Convention and
Article 4 of Protocol No. 4. The applicant also submits that after
his deportation to Turkey he will be prosecuted there for an offence
in connection with the one of which he had been convicted in the
Federal Republic of Germany and that he might face the death penalty.
PROCEEDINGS BEFORE THE COMMISSION
On 10 November 1986 the applicant requested an indication to
the Government of the Federal Republic of Germany that he should not
be deported until his case was decided by the Commission. However, on
14 November 1986 the President decided not to apply Rule 36 of the
Commission's Rules of Procedure.
On 24 November 1986 the applicant requested the Commission to
reconsider the President's ruling, submitting that after his
deportation to Turkey he would be prosecuted there for an offence in
connection with the one of which he had been convicted in the Federal
Republic of Germany and that he might face the death penalty. Having
considered the applicant's request on 12 December 1986, the Commission
decided not to apply Rule 36 of its Rules of Procedure.
THE LAW
1. The applicant complains that he was arrested and convicted in
violation of Articles 5 and 6 (Art. 5, 6) of the Convention.
It is true that Article 5 (Art. 5) secures to everyone the right to
liberty and security of person and Article 6 (Art. 6) to everyone charged with
a criminal offence the right to a fair and public hearing by an independent and
impartial tribunal established by law.
However, even assuming that the applicant could be considered
as having exhausted the domestic remedies at his disposal in view of
the fact that he had already lodged an appeal on points of law
(Revision) and that therefore a second appeal would not have constituted an
effective remedy, the Commission recalls that according to Article 26 (Art. 26)
of the Convention it "may only deal with the matter .... within a period of six
months from the date on which the final decision was taken". According to its
constant jurisprudence the "final decision" within the meaning of Article 26
(Art. 26) refers solely to the final decision involved in the exhaustion of all
domestic remedies according to the generally recognised rules of international
law. In particular, only a remedy which is "effective and sufficient" can be
considered for this purpose (see e.g. decisions on the admissibility of
Applications No. 918/60, Collection of Decisions 7, pp. 108, 110 and No.
654/59, Yearbook 4, pp. 277, 283).
The Commission finds that, in the present case, the
applicant's petition for a retrial, lodged on 6 March 1985, was not an
effective remedy under the generally recognised rules of international
law. Consequently, the decisions regarding this petition cannot be
taken into consideration in determining the date of the final decision
for the purpose of applying the six months' time-limit laid down in
Article 26 (Art. 26). The final decision regarding the applicant's conviction
and sentence is accordingly the decision of the Munich Regional Court
which was given on 14 December 1984 and which became final on
15 January 1985, whereas the present application was submitted to the
Commission on 29 October 1985, that is more than six months after the
date of this decision. Furthermore, an examination of the case does
not disclose the existence of any special circumstances which might
have interrupted or suspended the running of that period.
It follows that this part of the application has been
introduced out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
2. The applicant further complains of his expulsion and imminent
deportation to Turkey. He also complains that his life was not protected and
of discriminatory treatment at the prison. He invokes Articles 2 and 14
(Art. 2, 14) of the Convention and Article 4 of Protocol No. 4 (P4-4) .
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a
violation of the Convention and in particular whether the provisions invoked by
the applicant are applicable here. Under Article 26 (Art. 26) of the
Convention, the Commission may only deal with a matter after all domestic
remedies have been exhausted according to the generally recognised rules of
international law.
As regards the applicant's expulsion and imminent deportation,
he has not shown that he has lodged an objection (Widerspruch) against
the order of expulsion and deportation or that he has pursued this
matter any further before the competent administrative courts.
It is true that the applicant also complains that subsequent
to his deportation to Turkey he would have to stand trial there and
face the death penalty. However, even if the order of the City of
Munich of 15 April 1985 to expel and deport the applicant had already
become final when the applicant learned about these developments, he
could, in view of this new fact, have requested the authorities to
re-open these proceedings.
However, the applicant has not shown that he made such a
request or that he has in any other manner requested the competent
German authorities to suspend his deportation. Consequently, he
cannot be considered to have exhausted the domestic remedies at his
disposal.
As regards the applicant's complaints under Article 2 (Art. 2) that his
life was not protected and under Article 14 (Art. 14) of discriminatory
treatment at the prison, the Commission observes that the applicant has not
shown that he raised these complaints before the Federal Constitutional Court
or before any other German courts or authorities.
Therefore he did not exhaust the domestic remedies available
to him under German law in this respect.
Moreover, an examination of either complaint does not disclose
the existence of any special circumstances which might have absolved
the applicant, according to the generally recognised rules of
international law, from exhausting the domestic remedies at his
disposal.
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies and his
application must in this respect be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
3. The applicant also complains under Article 13 (Art. 13) that he has
been denied an effective remedy.
However, the Commission observes that it was possible for him
to lodge an appeal on points of law (Revision) against his conviction,
subsequently to lodge a constitutional complaint and also to raise an
objection (Widerspruch) against the order of expulsion and deportation
and subsequently to bring proceedings before the administrative
courts. The applicant has not demonstrated that he could not make use
of these remedies.
Therefore, the Commission cannot find any appearance of a
violation of Article 13 (Art. 13) of the Convention. It follows that this
complaint must be regarded as manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant has finally alleged a violation of Article 17 (Art. 17)
of the Convention. However, the Commission finds no issue under this
provision. It follows that this part of the application must also be rejected
as being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)