AS TO THE ADMISSIBILITY OF
Application No. 24481/94
by Mehmet ERGÜL
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 30 November 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
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 13 May 1994 by
Mehmet ERGÜL against Germany and registered on 28 June 1994 under file
No. 24481/94;
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 applicant is a Turkish citizen who was born in 1973 in
Esslingen, Germany. He is represented by Mrs. B. Tilgner, a lawyer
practising in Stuttgart.
It follows from the applicant's statements and the documents
submitted that the regional authorities in Esslingen (Landratsamt)
issued an expulsion order against the applicant on 4 January 1993 and
also ordered its immediate execution.
The decision was based on the following findings:
- the applicant was born and lived in Germany;
- he was unmarried and lived with a girlfriend;
- he had a residence permit and a labour permit of unlimited
duration;
- on 10 December 1991 he had been convicted by the Esslingen
District Court (Amtsgericht) of trafficking in considerable
quantities of drugs and was imposed a prison penalty which
was suspended on probation;
- on 3 December 1992 police officers found the applicant in
the possession of 1.3 grams of heroin;
- on 20 December 1992 he was arrested and found in the
possession of 100 grams of heroin. He admitted to having
taken 3-4 grams of heroin daily for about a year;
- he had alleged that he was employed as an apprentice. It
was not clear however whether in view of his detention on
remand the apprenticeship had been maintained.
In view of the aforementioned circumstances, in particular the
conviction for drug trafficking, which had become final, the
authorities considered that an expulsion was necessary for reasons of
special prevention (spezialpräventive Gründe). Although according to
Section 45 (2) of the Aliens Act (Ausländergesetz) the applicant's
personal, economic and other links with Germany had to be taken into
account, and although he enjoyed increased protection against expulsion
under Section 48 of this Act in view of the length of his stay in
Germany, there were no particular circumstances speaking against
expulsion. The applicant had himself not alleged or shown that any
strong ties existed, in particular no member of his family (the
applicant's parents and two older sisters as well as a younger sister
and younger brother live likewise in Germany) was financially dependent
on him. On the other hand by his drug trafficking activities had
revealed a particular criminal propensity. Even a single conviction
relating to the dealing in considerable quantities of drugs justified
the assumption that there was danger of repetition, all the more so as
the applicant had subsequent to his conviction and despite the pending
expulsion proceedings, not refrained from indulging in further criminal
activities as was shown by the fresh criminal proceedings still
pending. Danger of repetition was also given in view of the fact that
the applicant was himself admittedly a drug addict.
Furthermore, the expulsion was necessary for reasons of general
prevention (generalpräventive Gründe). Dealing with illegal drugs was
a particularly serious infringement of the public security and order
and the expulsion of foreigners guilty thereof was a measure designed
to prevent other foreigners from committing similar offences.
It was admitted that the applicant might have difficulties in
adapting to life in his country of origin. Nevertheless the expulsion
was not a disproportionate measure as the public interest in protection
from drug trafficking prevailed.
The applicant could furthermore not rely on the European
agreement on freedom of movement (Europäisches Niederlassungsabkommen).
There were also no other bilateral or international treaties which
could be invoked by the applicant.
Finally it was stated that the expulsion measures did not violate
constitutional rights given in particular that the applicant could
maintain his family relations even if he lived abroad.
The applicant then brought an administrative court action with
a view to having the expulsion order set aside. He also requested the
court for an interim order staying the execution of the expulsion order
pending the administrative court proceedings.
The latter request was rejected by the Stuttgart Administrative
Court (Verwaltungsgericht) on 28 April 1993. The court considered that
the applicant's action appeared to be without any prospect of success
because the public interest in the immediate execution of the expulsion
order prevailed over the private interests of the applicant to stay in
Germany until the final decision was given in his matter. The court
stated that the applicant had not questioned the factual findings on
which the expulsion order had been based. Referring to the
jurisprudence of the Federal Constitutional Court and the Federal
Administrative Court, the administrative court also considered that in
view of the applicant's conviction for drug trafficking there was
danger of repetition which was also confirmed by his subsequent
behaviour. The applicant's allegation that he intended to undergo a
long-term disintoxication therapy was likewise no reason to exclude the
existence of danger of repetition. So far the applicant had only
declared his intention to undergo therapy and there was nothing to show
that it would eventually lead to positive results. The court
furthermore considered that the expulsion was also justified under
Article 8 para. 2 of the European Convention of Human Rights as being
necessary in a democratic society for the prevention of disorder and
crime, for the protection of health and morals and for the protection
of the rights and freedom of others. The court likewise considered
that the measure in question was not disproportionate in view of the
fact that the applicant had reached the age of majority and had not
shown that he was in any way dependent on his family in Germany.
Moreover his grandparents lived in Turkey and the applicant was
consequently not left on his own in that country. Finally the court
stated that the fact that the applicant was presently detained on
remand was likewise no reason to stay the execution of the expulsion
order as there was a necessity to expel the applicant immediately after
his release from detention on remand or as the case may be after his
having served a sentence which would possibly be imposed following the
pending criminal proceedings.
The administrative court's decision of 28 April 1993 was
confirmed by the Baden-Württemberg Administrative Court of Appeal
(Verwaltungsgerichtshof) on 24 February 1994.
In the meantime the applicant had been convicted again on 20
April 1993 of continued drug trafficking and this conviction was
confirmed by the Stuttgart Regional Court (Landgericht) on 12 November
1993. The applicant was sentenced to a youth penalty (Jugendstrafe)
of two years imprisonment.
On 18 November 1993 the applicant was requested to leave the
country voluntarily in order to avoid coercive measures.
An appeal against this order was rejected by the Regional
Government in Stuttgart (Regierungspräsidium) on 15 February 1994.
The applicant then lodged a constitutional appeal against the
latest expulsion measures as well as the administrative court decision
denying suspensive effect to his administrative court action. On 11
April 1994 a group of three judges of the Federal Constitutional Court
(Bundesverfassungsgericht) refused to admit the constitutional
complaint for a decision on the merits.
The applicant has not submitted any further information regarding
the development of his Administrative Court action insofar as the
merits are concerned and it must therefore be assumed that it is still
pending.
COMPLAINTS
The applicant admits that he is a drug addict and alleges that
his addiction caused him to deal in drugs. He considers that having
always lived in Germany he has the right to undergo disintoxication
therapy in that country. He also submits that he has been released
from detention on remand on 12 November 1993 and his conduct has been
unobjectionable since then. He could however not yet start therapy
because in view of the expulsion order the costs of such therapy would
not be reimbursed by the social security authorities. He alleges that
he lives with his parents and is employed in Germany. Invoking Article
8 of the Convention and community law the applicant requests an
annulment of the expulsion order.
THE LAW
Insofar as the applicant complains of his intended expulsion, the
Commission first observes that a right not to be expelled from a State
of which the person concerned is not a national cannot, as such, be
derived from the Convention (No. 15271/89, Dec. 2.7.90, unpublished,
and also, mutatis mutandis, Eur. Court H.R., Soering judgment of
7 July 1989, Series A no. 161, para. 85).
It is true that under certain circumstances an expulsion may be
considered as an interference with the right to respect for private and
family life (Article 8 para. 1 (Art. 8-1) of the Convention) which the
applicant invokes. However, the Commission is not required to decide
whether or not the facts submitted by the applicant disclose any
appearance of the Convention as no final decision has yet been given
on the merits of the applicant's administrative court action against
the expulsion order. He can in these circumstances not be considered
to have complied with the requirement under Article 26 (Art. 26) of the
Convention as to the exhaustion of domestic remedies.
There are also no particular circumstances absolving the
applicant according to generally recognised rules of international law
from complying with this requirement. It is true that the applicant's
request for granting suspensive effect to his action has been rejected.
He has however, not shown that the provisional execution of the
expulsion order would cause him irreparable or disproportionate damage.
Rather he will be free to return to Germany would he eventually succeed
in his administrative court action.
It follows that the application must be rejected under Article
27 para. 3 (Art. 27-3) of the Convention in connection with Article 26
(Art. 26) 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