AS TO THE ADMISSIBILITY OF
Application No. 21212/93
by C.K. and OTHERS
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 2 September 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 6 December 1992
by C.K. and OTHERS against Germany and registered on 21 January 1993 under file No. 21212/93;
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 first applicant, born in 1956, is a Turkish national who in
1966 joined his family living in Germany. The second applicant, a
German national, born in 1956, has been his spouse since December 1981.
The third to sixth applicants are their children, born in 1976, 1980,
1989 and 1990, respectively. The applicants are residing in Bergkamen.
Before the Commission, they are represented by Mr. H.H. Heidmann, a
lawyer practising in Frankfurt/Main.
On 23 July 1981 the Dortmund Regional Court (Landgericht)
convicted the first applicant of drug trafficking, and sentenced him
to ten years' imprisonment. The second applicant was convicted of
having acted as an accessory, and sentenced to two years' imprisonment.
On 6 October 1982 the Head of the Soest County Administration
(Oberkreisdirektor) requested the first applicant to leave Germany and
ordered his deportation to Turkey on the day of his release.
On 20 May 1983 the Arnsberg Regional Governor (Regierungs-
präsident) dismissed the first and second applicant's administrative
appeal (Widerspruch). The Governor, referring to S. 10 para. 1 (2) of
the Aliens Act (Ausländergesetz), confirmed the first applicant's
expulsion. Having regard to his criminal conviction of 23 July 1981
and the seriousness of the offences committed by him, the public
interest in the prevention of disorder and crime outweighed the first
applicant's interests in staying in Germany.
On 25 January 1984 the Arnsberg Administrative Court (Verwal-
tungsgericht) dismissed the first and second applicant's action to have
the decision of 6 October 1982 set aside.
On 3 June 1986 the Arnsberg Administrative Court of Appeal (Ober-
verwaltungsgericht), upon the first and second applicant's appeal
(Berufung), quashed the deportation order on the ground that the
administrative authorities had not established whether the first
applicant risked a second punishment in respect of the above offences,
and, if so, what treatment in the course of criminal proceedings he
would have to face upon his return to Turkey. However, the Court of
Appeal confirmed the reasoning of the lower instances as regards the
order to leave the territory of Germany. The first applicant's long
stay and his family ties in Germany could not outweigh the public
interests. The considerations relating to a possible further
punishment in Turkey would not affect the order to leave the territory.
On 10 June 1987 the first applicant, having served two thirds of
his prison sentence, was released on probation, the period of probation
being four years. He took residence with his family.
On 1 December 1987 the Federal Administrative Court (Bundesver-
waltungsgericht), upon the first and second applicant's appeal on
points of law (Revision), quashed the Administrative Court of Appeal's
judgment to the extent that his appeal against the order to leave the
territory of Germany had been dismissed, and referred the case back to
that Court. The Federal Administrative Court considered that the
conditions under S. 10 para. 1 (2) of the Aliens Act to order the first
applicant to leave the territory were met. The administrative
authorities had correctly considered that his stay in Germany since
1966 was not decisive. Furthermore, taking into account that the first
applicant constituted a serious threat to important public interests,
his wish to live in Germany together with his family could not take
priority. However, when exercising their discretion in ordering the
first applicant to leave Germany, the authorities had failed to
investigate into the question whether or not he risked further
punishment, in particular capital punishment or inhuman or degrading
treatment, upon his return to Turkey.
On 3 July 1991 the Arnsberg Administrative Court of Appeal,
having taken further evidence as regards the risk of a further
punishment in Turkey, dismissed the first and second applicant's appeal
against the order to leave the territory. The Court of Appeal observed
that its examination of the case was, in accordance with the judgment
of the Federal Administrative Court, limited to the question whether
there was such a risk of further punishment which might render the
order to leave the territory unlawful, considerations relating to the
first applicant's family life could not again be taken into account.
The Court of Appeal concluded that, with regard to the offences
of which he had been convicted in 1981, the first applicant would not
risk that criminal charges be again brought in Turkey, or that he be
again punished or that he would be subjected to inhuman treatment in
the course of criminal investigations. In this respect the Court of
Appeal noted that the Turkish authorities had been informed about the
first applicant's conviction. However, it was unlikely that they would
institute criminal proceedings. The Court of Appeal referred to the
provisions of the Turkish Penal Code relating to the punishment, in
Turkey, for offences committed by a Turkish national abroad, and had
also regard to information provided by the Freiburg Max-Planck-
Institute for Foreign and International Penal Law. Moreover, it was
also improbable that the first applicant would be prosecuted in Turkey
on the suspicion of having, at the time, exported the drugs from
Turkey, which would be regarded as a separate offence committed in
Turkey. Having regard to several cases of such a nature, as stated in
information provided by the Max-Planck Institute and the Foreign
Office, the Court of Appeal noted that prosecution presupposed clear
indications in the German proceedings that the drugs had been exported
from Turkey. Consequently, mere presumptions about the origin of
drugs, such as mentioned in the first applicant's case, did not
suffice. The Court of Appeal did not admit an appeal on points of law.
On 18 December 1991 the Federal Administrative Court refused the
first and second applicant's request for leave to appeal on points of
law (Beschwerde gegen die Nichtzulassung der Revision). The
Administrative Court of Justice considered that the Court of Appeal's
establishment of the relevant facts could not be objected to.
On 10 July 1992 the Federal Constitutional Court (Bundesver-
fassungsgericht) refused to admit the applicants' constitutional
complaint (Verfassungsbeschwerde) on the ground that it offered no
prospect of success. The Constitutional Court, referring to its
constant case-law, considered in particular that the constitutional
right to respect of marriage and family did not generally exclude that
the foreign spouse of a German national be ordered to leave Germany and
deported. The administrative authorities and courts had taken the
applicants' interests to continue their common life in Germany duly
into account. However, with regard to the serious nature of the
criminal offences committed by the first applicant, namely drug
trafficking resulting in a penalty of ten years' imprisonment, these
private interests were outweighed by the public interest in his leaving
Germany. The decision was served on 27 July 1992.
On 31 August 1992 the Soest Aliens Office dismissed the first and
second applicant's request to limit the first applicant's expulsion in
time. On 24 November 1992 the Aliens Office again ordered the first
applicant to leave the German territory.
It does not appear that the first applicant has left Germany.
COMPLAINTS
1. The applicants complain under Article 8 of the Convention about
the first applicant's expulsion. They submit that the first applicant
was brought up in Germany, and that his family is living here. After
his departure, his wife and children would have to live on social
welfare. They consider that the first applicant's probational release
was based upon a positive prognosis for his future; his previous
criminal behaviour did, therefore, no longer justify his expulsion.
2. The applicants further submit that upon his return to Turkey the
first applicant risks to be arrested and convicted a second time for
the same drug offences. He also risks prosecution on the ground that
he had not complied with his duty to do military service. The first
applicant states that he fears to be subjected to inhuman treatment by
the Turkish police.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 6 December 1992. On
17 December 1992 the applicants requested the Commission to take
interim measures in order to stop the first applicant's expulsion. On
15 January 1993 the Commission decided not to apply Rule 36 of the
Commission's Rules of Procedure. The application was registered on
21 January 1993.
THE LAW
1. The applicants complain that the order to leave the territory of
Germany, issued against the first applicant by the Head of the Soest
County Administration in October 1982, will separate the first
applicant from his family in Germany. They rely 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 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 order issued against the first
applicant to leave Germany interferes with the applicants' 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 (Art. 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 10 para. 1 (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 first applicant's private and family situation. The
German administrative courts also considered the first applicant's long
stay in Germany and the situation of his family, and weighed his
private and family interests against the public interest in his leaving
the country, based on his conviction for serious drug offences and
punishment to ten years' imprisonment. This reasoning was confirmed
by the Federal Constitutional Court.
In these circumstances, the Commission considers that there are
relevant and sufficient reasons for the challenged order to leave
Germany. Weighing the applicants' 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.
The Commission further observes that the first applicant
continued to stay in Germany in the course of his appeal proceedings
which were successful as regards the deportation order of October 1982.
Having served two-thirds of his prison sentence, he was released on
probation in June 1987, and there is no indication of any subsequent
criminal proceedings against him. However, the first applicant had the
possibility to request the competent authorities to limit his expulsion
in time. The applicants did not show that they exhausted the
administrative court remedies against the refusal of their request, and
against the renewed order of November 1992 that the first applicant
should leave Germany.
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 this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants further submit that upon his return to Turkey the
first applicant risks prosecution in respect of the same drug offences,
and also on the ground that he had not complied with his duty to
perform military service. The first applicant states that he fears to
be subjected to inhuman treatment by the Turkish police.
The Commission recalls that the expulsion by a Contracting State
of a foreigner may give rise to an issue under Article 3 (Art. 3), and
hence engage the responsibility of that State under the Convention,
where substantial grounds have been shown for believing that the person
concerned faces a real risk of being subjected to torture or to inhuman
or degrading treatment or punishment in the country to which he is
returned (see Eur. Court H.R., Vilvarajah and Others judgment of
30 October 1991, Series A no. 215, p. 34, para. 103).
In the present case, the German Courts carefully investigated
into the first applicant's fears that, upon his return to Turkey he
might be prosecuted a second time for the drug offences of which he had
already been convicted in Germany in 1981, and that he might be ill-
treated in the course of such criminal proceedings. Having regard to
information provided by the Freiburg Max-Planck-Institute for
International and Foreign Penal Law and by the German Foreign Office,
the Administrative Court of Appeal concluded that, in the circumstances
of the first applicant's case, there was no risk of further criminal
charges in Turkey. While the first applicant continues to refer to his
fears of a second set of criminal proceedings in Turkey, he failed to
demonstrate that there is a definite and serious risk of his being
prosecuted, and, if so, of being exposed to treatment contrary to
Article 3 (Art. 3) in the course of such criminal proceedings.
Moreover, as regards the alleged risk of punishment for failure
to complete his period of military service in Turkey, the Commission
observes that the first applicant failed to raise this argument in the
course of the domestic proceedings. In any event, the Commission
recalls that prosecution for desertion from the army does not in itself
constitute treatment contrary to Article 3 (Art. 3) of the Convention
(cf. No. 12364/86, Dec. 17.10.86, D.R. 50 p. 280).
The Commission therefore concludes that the applicants'
submissions do not disclose any real risk that the first applicant
would be subjected to ill-treatment upon his return to Turkey. In this
respect, the Commission also notes that the deportation order was
quashed by the Arnsberg Administrative Court of Appeal on 3 June 1986.
It follows that this part of the application is also 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) (A. WEITZEL)
Full & Egal Universal Law Academy