AS TO THE ADMISSIBILITY OF
Application No. 14652/89
by Zaki EIDOU
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 14 April 1989, the following members being present:
MM. S. TRECHSEL, Acting President
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. J. RAYMOND, Deputy 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 30 January 1989
by Zaki EIDOU against the Federal Republic of Germany and registered
on 15 February 1989 under file No. 14652/89;
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 facts of the case, as they have been submitted by the
applicant, may be summarised as follows:
The applicant, born in 1930, is a stateless Kurd from
Lebanon. When lodging his application he was resident in Berlin
together with his Lebanese wife and eight children. At present he is
detained at a Berlin prison with a view to his deportation. Before
the Commission he is represented by MM. H. T. Schmitt and
J. A. Brückner, lawyers practising in Berlin.
The applicant entered the Federal Republic of Germany in
November 1979. His first three requests for political asylum remained
unsuccessful. On 9 July 1985 the Berlin Registration Office
(Landeseinwohneramt) declared his fourth request irrelevant and
clearly without any chance of success. However, the order to leave
the Federal Republic of Germany was suspended in view of a general
policy not to deport persons to Lebanon. The applicant withdrew his
action before the Berlin Administrative Court (Verwaltungsgericht) on
28 July 1986.
On 12 November 1986 the Berlin Registration Office renewed its
order that the applicant should leave the Federal Republic of
Germany. The applicant's appeal (Widerspruch) was dismissed by the
Berlin Senator of the Interior (Senator für Inneres) on 16 December
1986. The order was not enforced due to lack of travelling papers and
in view of the above-mentioned general policy.
On 12 April 1988 the Berlin Registration Office dismissed the
applicant's requests of 28 January and 15 February 1988 for a
residence permit under the general instruction of the Berlin Senator
of the Interior dated 1 October 1987 concerning all persons from
Lebanon staying in Berlin at that date ("Altfall-Regelung"). The
Registration Office also ordered the applicant to leave the Federal
Republic of Germany within a month and warned him that he would be
deported to Lebanon.
The instruction of the Berlin Senator of the Interior of
1 October 1987 provides that all persons from Lebanon who have
stayed before 1 October 1987 in Berlin pending or after asylum
proceedings and who have minor children will be granted a residence
permit. Excluded are inter alia persons who have committed criminal
offences. These are persons who have been sentenced for criminal
offences to a fine of more than 90 day rates (Tagessätze) or three
months' imprisonment. According to the case law of the Berlin
Administrative Court of Appeal (Oberverwaltungsgericht), stateless
male persons of an age liable for military service are exempted from
that rule.
In its decision of 12 April 1988 the Registration Office found
in particular that the applicant, having committed several criminal
offences, could not be granted a residence permit under the relevant
instruction of the Ministry of the Interior of 1 October 1987. The
Office noted that on 18 February 1985 the Tiergarten District Court
(Amtsgericht) had fined the applicant DM 300 (30 day rates of DM 10)
for theft; on 14 August 1985 the Tiergarten District Court again
fined him DM 300 (30 day rates of DM 10) for theft; both sentences were
cumulated to a fine of DM 450 (45 day rates of DM 10) by decision of
16 December 1985. Furthermore, on 11 August 1986 the applicant was
convicted by the Tiergarten District Court of bodily assault and fined
DM 1000 (100 day rates of DM 10).
Moreover, the Office considered that the applicant's children were
involved in numerous criminal investigation proceedings. His wife,
who had not applied for a residence permit, had been granted a
provisional permission to stay (Duldung) only pending the children's
asylum proceedings. They would also have to leave the Federal
Republic of Germany after refusal of their requests for political
asylum.
On 20 July 1988 the Berlin Administrative Court dismissed the
applicant's request for a suspension of the decision of 12 April 1988
(Antrag auf vorläufigen Rechtsschutz). The Court found that under the
German Aliens' Act (Ausländergesetz) the applicant was obliged to
leave the territory of the Federal Republic of Germany. The Court
considered in particular that, having regard to the applicant's
previous criminal convictions, his envisaged deportation did not
violate his right to respect for his family life. Furthermore, the
applicant, as a stateless Kurd, would not risk any political
persecution upon his return to Lebanon on the ground of his ethnic
origin. The general situation in Lebanon would not exclude his
deportation. He had himself not substantiated any particular danger.
On 22 September 1988 the Berlin Administrative Court of Appeal
dismissed the applicant's appeal (Beschwerde). The Administrative
Court of Appeal found in particular that the applicant had failed to
show any particular risk upon his arrival at Beirut Airport.
On 29 December 1988 the applicant was arrested and detained
with a view to his deportation.
On 3 January 1989 the Berlin Senator of the Interior dismissed
the applicant's appeal (Widerspruch) of 20 May 1988 against the
Registration Office's decision of 12 April 1988. The Senator of the
Interior noted that on 10 May 1988 the applicant had also been
convicted of tax evasion by the Tiergarten District Court and
sentenced to six months' imprisonment on probation. Furthermore it
referred to the reasoning of the Berlin Administrative Court in its
decision of 20 July 1988.
On 12 January 1989 the Schöneberg District Court ordered the
applicant's continued detention. In these review proceedings
(Haftprüfung), the applicant lodged a fifth request for political
asylum, and filed reasons on 17 January 1989.
On 3 February 1989 the Berlin Registration Office decided not
to re-open the applicant's asylum proceedings. It also ordered him to
leave the Federal Republic within a month and warned him that he would
be deported to Lebanon. The Office found that he had failed to invoke
new circumstances or evidence justifying the re-opening of his ayslum
proceedings. In particular, he had failed to substantiate that the
Office had no valid travelling papers for him and that he would
therefore be exposed to danger upon his return to Lebanon. The Office
referred, in this respect, to a decision of the Berlin Administrative
Court of 27 January 1989 in a similar case. Furthermore, the Office
considered that, having regard to the applicant's repeated convictions
and the great number of foreigners staying illegally in Berlin, the
public interest in his departure obviously outweighed his private
interests in staying, especially his right to respect for family life.
He had failed to substantiate either that he could not wait in Lebanon
for his family's return or that his presence in Berlin was for other
reasons necessary for his family.
Appeal proceedings and proceedings concerning the applicant's
request for a suspension of the decision of 3 February 1989 are
pending before the Berlin Administrative Court.
COMPLAINTS
The applicant complains under Articles 2, 3 and 8 para. 1 of
the Convention about his envisaged deportation to Lebanon. He submits
in particular that, having regard to the general political situation in
Lebanon, his deportation to Lebanon would amount to inhuman and
degrading treatment. Furthermore, he alleges that he would have to
face particular problems upon his return to Lebanon with the
travelling papers with which the Berlin Registration Office intended
to deport him.
THE LAW
1. The applicant complains that his deportation to Lebanon
amounts to inhuman treatment within the meaning of Article 3 (Art. 3) of the
Convention. He also invokes Article 2 (Art. 2) of the Convention.
The Commission recalls that according to its constant case-law
neither the right to political asylum nor the right not to be deported
are, as such, guaranteed by the Convention. Nevertheless, a person's
deportation may, in exceptional circumstances, be contrary to the
Convention, and in particular amount to inhuman and degrading treatment
contrary to Article 3 (Art. 3) if there are strong reasons to believe that the
person concerned is thereby put in a situation where he is likely to incur
risks for his life and physical integrity in the country of destination (cf.
No. 10760/84, Dec. 17.5.84, D.R. 38 p. 224; No. 10564/83, Dec. 10.12.84, D.R.
40 p. 262).
The Commission observes under Article 26 (Art. 26) of the Convention
that the applicant's request for a suspension of the deportation order of 12
April 1988 remained unsuccessful. His appeals still pending before the Berlin
Administrative Courts cannot, therefore, be regarded as effective remedies in
respect of his complaint under Article 3 (Art. 3) of the Convention, which the
applicant ought to have exhausted before addressing himself to the Commission.
The Commission finds that, in the particular circumstances of the
present case, there is no indication that in Lebanon the applicant would risk
treatment contrary to Article 3 (Art. 3) of the Convention. The Commission
considers in particular that the applicant, a stateless Kurd, referred to the
general political situation in Lebanon, which was examined in the domestic
proceedings by the Berlin Administrative Court, but failed to show by concrete
submissions concerning his personal situation that his life or physical
integrity would be in a serious danger in Lebanon. Consequently, there is no
appearance of a violation of Article 3 (Art. 3) of the Convention.
It follows that this aspect of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2 (Art.
27-2) of the Convention.
2. Furthermore, the applicant complains under Article 8 (Art. 8) of the
Convention that his envisaged deportation violates his right to respect for his
family life.
However, the Commission is not required under Article 26 (Art. 26) of
the Convention to deal with this complaint as the applicant has failed to
exhaust the remedies available to him under German law.
The Commission observes that the applicant's appeal against the
deportation order of 12 April 1988 has not yet been decided upon by the Berlin
Administrative Court. The applicant has not shown that this appeal is not an
effective remedy in respect of his complaint under Article 8 (Art. 8) of the
Convention, and that he should be absolved, according to the generally
recognised rules of international law, from pursuing the administrative court
proceedings (cf. No. 7216/75, Dec. 20.5.76, D.R. 5 p. 137).
It follows that this part of the application must be rejected under
Article 27 para. 3 (Art. 27-3) in conjunction with Article 26 (Art. 26) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYAMOND) (S. TRECHSEL)