AS TO THE ADMISSIBILITY OF
Application No. 31968/96
by Ilja FUKS
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 23 October 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 17 April 1996 by
Ilja FUKS against Germany and registered on 19 June 1996 under file
No. 31968/96;
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, born in 1951, is a Ukrainian national. When
lodging his application, he was living in Berlin. In the proceedings
before the Commission, he is represented by Mr R. Portius and
Mr T. Schmidt, lawyers practising in Berlin.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In 1990 the applicant came to the Federal Republic of Germany and
applied for refugee status, arguing his German origins. The
applicant's request was dismissed by the Berlin Municipality;
administrative court proceedings are pending.
On 31 October 1994 the Berlin Municipality ordered the
applicant's expulsion, pursuant to the relevant provisions of the
Aliens Act (Ausländergesetz). The applicant was ordered to leave
Germany within one month and informed that, should he not leave
voluntarily, his deportation would be ordered.
In its reasoning, the Municipality noted that on 9 July 1992 the
Berlin Regional Court (Landgericht) had committed the applicant for
trial on the charge of having acted as an accomplice to causing
grievous bodily injury. On 13 June 1992 the Regional Court, applying
S. 153a of the Code of Criminal Procedure (Strafprozeßordnung), had
discontinued the proceedings subject to the conditions that he paid a
sum of money amounting to DEM 20,000 to the Treasury (Justizkasse) and
compensation amounting to DEM 30,000 to the victim of the offence.
S. 153a of the Code of Criminal Procedure concerns the
discontinuation of criminal proceedings subject to conditions and
instructions (Auflagen und Weisungen). According to its paragraph 1,
the Public Prosecutor's Office (Staatsanwaltschaft) may, with the
consent of the competent court and the accused, provisionally refrain
from preferring an indictment relating to an offence (Vergehen) and at
the same time order the accused (1) to take measures providing
reparation, (2) to pay a sum of money to a charitable association or
the Treasury, (3) to take other measures or (4) to make maintenance
payments of a particular amount, if such conditions and instructions
can remove the public interest in prosecution and if this is not in
conflict with the seriousness of the guilt. If the accused fulfils the
conditions and instructions, the act can no longer be prosecuted as an
offence. Paragraph 2 provides that after indictment the court may, with
the consent of both the public prosecutor's office and the accused,
discontinue the proceedings until the end of the trial, during which
the facts are finally assessed, and impose the same conditions and
instructions as mentioned in paragraph 1.
The Municipality considered that the acts which formed the basis
of the trial against him showed that the applicant was not willing to
abide by the laws enacted for the protection of the public. As to the
offence in question, the Municipality stated that, as an accomplice,
the applicant had abducted his sister's housekeeper whom they had
suspected of theft. They had brought her into the forest and had
applied a brutal method to extort an admission of guilt and disclosure
of the hiding-place of the money in question, namely putting a plastic
bag over her head and thus repeatedly depriving her of oxygen.
Eventually she had been brought to her apartment where they had
continued to threaten her with violence. Their victim had finally been
scared to death and had jumped out of the window of her apartment,
situated on the second floor. She had suffered serious and lasting
injuries. The Municipality found that, in taking the law into his
hands, he had seriously violated public safety and order. His
wrongdoing (Fehlverhalten) necessitated his expulsion. Other
foreigners should thereby be discouraged from engaging in such unlawful
conduct.
As regards the applicant's argument that he had not been
convicted of the offence in question, the Municipality considered that
the Regional Court had discontinued the proceedings against him subject
to conditions on the ground that the trial had repeatedly been delayed.
It was unlikely that he would have made compensation payments to the
victim if innocent.
In these and the following proceedings, the applicant was
represented by counsel.
On 6 July 1995 the Berlin Administrative Court (Verwaltungs-
gericht) dismissed the applicant's request for an interim injunction
against his expulsion.
The Administrative Court found that on the basis of a summary
examination of the case in the context of the injunction proceedings
there were no reasons to doubt the lawfulness of the expulsion order.
The Administrative Court recalled that under the relevant provisions
of the Aliens Act, a foreigner could be expelled if he had committed
more than a singular or minor breach of the law (Rechtsverstoß).
Having regard to the course of the criminal proceedings against the
applicant and their discontinuation pursuant to S. 153a of the Code of
Criminal Procedure (Strafprozeßordnung), the Administrative Court found
that these conditions were met in his case. The Court confirmed that
the fact that the applicant had eventually not been convicted did not
prevent the Municipality from basing its expulsion decision on these
events. The Court recalled that, pursuant to the relevant legal
provisions, only the breach of the law as such and not a criminal
conviction was the condition for an expulsion. In the Court's view,
the applicant had committed the breach of the law in question. While
the applicant had always pleaded his innocence, the Court considered
that, on the basis of the contents of the files, there were no
reasonable doubts as to his participation in the events in the night
of 26-27 January 1992. The victim had been repeatedly questioned,
including the questioning by a judge, and had charged the applicant
with the offence. There had been no substantial discrepancies in her
statements. Moreover, as a pre-condition for the discontinuation of
the criminal proceedings, the applicant and the co-accused had been
ordered to make important compensation payments to the victim.
Moreover, the Regional Court had discontinued the proceedings pursuant
to S. 153a of the Code of Criminal Procedure which required that the
suspicion continued to exist and that such procedure was not in
conflict with the seriousness of the guilt. The criminal file showed
that the proceedings had been discontinued mainly on account of the
fact that the victim, due to her injuries, could not attend the trial
for a considerable time and that the lengthy proceedings had been
terminated on the basis of a settlement between the offenders and their
victim.
The Administrative Court further considered that no other
reasons, including the circumstance that the applicant's mother and his
sister had meanwhile acquired German nationality, hindered his
expulsion.
On 5 September 1995 the Berlin Administrative Court of Appeal
(Oberverwaltungsgericht) dismissed the applicant's appeal (Beschwerde).
The applicant lodged a constitutional complaint (Verfassungs-
beschwerde) with the Federal Constitutional Court (Bundes-
verfassungsgericht), arguing inter alia that the expulsion order ran
counter to the presumption of innocence.
On 24 October 1995 the Federal Constitutional Court refused to
entertain the applicant's constitutional complaint. The decision was
served on 31 October 1995.
COMPLAINTS
The applicant complains about the expulsion order issued against
him on 31 October 1992. He considers that the Municipality's reasoning
in this decision amounts to a breach of the presumption of innocence,
as guaranteed by Article 6 para. 2 of the Convention.
As regards the condition of the exhaustion of domestic remedies,
the applicant submits that he did not have to await the outcome of
domestic proceedings which do not have suspensive effect before lodging
his complaint about the expulsion order with the Commission. In this
context he states that upon his return to Ukraine he would run a risk
to life or health, as he was being sought by the Russian Public
Prosecutor's Office as a witness in proceedings against high-ranking
officers.
THE LAW
1. The applicant complains about the expulsion order issued by the
Berlin Municipality on 31 October 1992.
2. The Commission recalls that the Contracting States have the
right, as a matter of well-established international law and subject
to their treaty obligations including the provisions of the Convention,
to control the entry, residence and expulsion of aliens. The right to
political asylum is not protected in either the Convention or its
Protocols (cf. Eur. Court HR, Vilvarajah and Others v. the United
Kingdom judgment of 30 October 1991, Series A no. 215, p. 34,
para. 102).
3. The Commission observes that, in his submissions as to the formal
requirements under Article 26 (Art. 26) of the Convention, the
applicant maintains that he would run a risk to his life and health,
if returned to Ukraine.
The Commission has examined this allegation under Article 3
(Art. 3) of the Convention which provides that "[n]o one shall be
subjected to torture or to inhuman or degrading treatment or
punishment".
The Commission recalls that expulsion by a Contracting State of
a foreigner may give rise to an issue under Article 3 (Art. 3) of the
Convention and hence engage the responsibility of that State under the
Convention, where substantial grounds have been shown for believing
that the person concerned would face a real risk of being subjected to
torture or to inhuman or degrading treatment or punishment in the
country to which he is to be expelled (Vilvarajah and Others judgment,
op. cit., para. 103). Since the nature of the Contracting States'
responsibility under Article 3 (Art. 3) in cases of this kind lies in
the act of exposing an individual to the risk of ill-treatment, the
existence of the risk must be assessed primarily with reference to
those facts which were known or ought to have been known to the
Contracting State at the time of the expulsion; a mere possibility of
ill-treatment is not in itself sufficient (Vilvarajah and Others
judgment, op. cit., p. 36, para. 107 and p. 37, para. 111).
The Commission finds that the applicant's allegations do not
relate to his own criminal prosecution, but to his possible questioning
in proceedings against third persons. Considering all circumstances,
the Commission concludes that the applicant has failed to show that,
upon his return to Ukraine, he would be exposed to a real risk of being
subjected to treatment contrary to Article 3 (Art. 3) 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.
4. The applicant affirms that the expulsion order violates the
principle of the presumption of innocence, as guaranteed by Article 6
para. 2 (Art. 6-2) of the Convention.
This provision reads as follows:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
The principle of the presumption of innocence is first of all a
procedural guarantee applying in any kind of criminal procedure;
however, in a wider sense, it protects everybody against being treated
by public officials as being guilty of an offence before this is
established according to law by a competent court (cf. Eur Court HR,
Allenet de Ribemont v. France judgment of 10 February 1995, Series A
no. 308, p. 16, para. 35; see also No. 9295/85, Dec. 6.10.82, D.R. 30,
p. 227; No. 10857/84, Dec. 15.7.86, D.R. 48, p. 106).
In the present case, the criminal charge against the applicant
dated back to 1992. The criminal proceedings were discontinued by the
Berlin Regional Court on 13 June 1992 pursuant to S. 153a of the Code
of Criminal Procedure subject to the condition that he accepted paying
substantial sums of money to the Treasury and to the victim of the
offence.
In the context of the expulsion proceedings, the German
authorities were called on to examine whether the applicant's conduct
in Germany had amounted to a serious violation of the public safety and
order, justifying his expulsion in accordance with the relevant
provisions of the Aliens Act. The Berlin Municipality, as confirmed
by the administrative courts, considered the events which had given
rise to the criminal proceedings against the applicant about two years
earlier. It referred in particular to the fact that the applicant had
accepted the conditions attached to the discontinuation of the
proceedings.
Having accepted to pay a considerable amount of compensation to
the victim as well as to pay a further substantial sum of money to the
Treasury in relation to the charges against him, the applicant cannot
claim to be the victim of a violation of the presumption of innocence,
as guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention, in the
ensuing expulsion proceedings.
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.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy