AS TO THE ADMISSIBILITY OF
Application No. 19544/92
by Mustafa Fikret KÜÇÜK
against Germany
The European Commission of Human Rights (Second Chamber) sitting
in private on 12 October 1994, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 12 December 1990
by Mustafa Fikret KÜÇÜK against Germany and registered on
26 February 1992 under file No. 19544/92;
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, born in 1940 and residing in
Istanbul (Turkey).
In a first application to the Commission (No. 16770/90) the
applicant complained of the judgment of the Kiel Regional Court
(Landgericht) of 11 September 1987 by which he was convicted of rape
and sexual harassment and sentenced to five years' and nine months'
imprisonment. On 10 January 1991 the Commission declared this
application inadmissible for non-exhaustion of domestic remedies.
The facts of the present application, as submitted by the
applicant, may be summarised as follows.
On 18 September 1990 and 31 May 1991 the applicant requested to
the re-opening of the criminal proceedings under which he had been
convicted in 1987. This request was dismissed by the Lübeck Regional
Court on 10 September 1991 on the ground that the evidence submitted
by the applicant was not sufficient to set aside his conviction.
The applicant's appeal against this decision was unsuccessful.
A constitutional complaint lodged by the applicant was declared
inadmissible by the Federal Constitutional Court (Bundesverfassungs-
gericht) on 13 March 1992.
In the meanwhile, on 8 March 1990, the Neumünster administrative
authorities had refused to grant the applicant a residence permit and
ordered the applicant to be expelled from Germany after having served
his sentence. The applicant appealed (Widerspruch) against this
decision. He stressed that he was innocent and that his deportation
would separate him from his wife and four minor children who lawfully
resided in Germany.
On 3 May 1991 the administrative authorities dismissed the
applicant's appeal.
On 5 June 1991 the applicant appealed to the Schleswig-Holstein
Administrative Court (Verwaltungsgericht). The appeal was dismissed on
4 December 1991 as being ill-founded.
The Administrative Court noted in particular that in 1975 the
applicant had been convicted of rape by the Neumünster District Court
(Amtsgericht) and sentenced to one year's imprisonment on probation and
that in 1987 he had been convicted by the Kiel Regional Court of rape
and sexual harassment and sentenced to five years' and nine months'
imprisonment. According to the Administrative Court, having been
sentenced to a minimum of five years' imprisonment, the applicant
satisfied the conditions laid down in Section 47, Subsection 1, No. 1
of the Aliens Act and had to be expelled from Germany in accordance
with Section 49 of the Aliens Act. Having regard to the serious nature
of the offences, the applicant's deportation was necessary in the
interest of public safety. His family links did not outweigh the public
interest in imposing his deportation. Furthermore, his family could be
expected to follow him to Turkey in order to maintain family contacts
with him.
On 5 May 1992 the Federal Constitutional Court, sitting as a
panel of three judges, dismissed the applicant's constitutional appeal
against the above decisions as being inadmissible. The Court held that
the applicant had failed to sufficiently substantiate his complaint.
The applicant's further appeals against the decision to deport
him were unsuccessful.
COMPLAINTS
The applicant complains that his case has not been dealt with
fairly by the criminal courts and that he was convicted and sentenced
without having committed any criminal offence. He requests compensation
in an amount of 500 000 DM.
The applicant also complains that his deportation to Turkey was
in breach of his right to respect for family life.
The applicant does not invoke any particular provision of the
Convention.
THE LAW
1. The applicant who claims to be innocent complains of the judgment
given by the Kiel Regional Court (Landgericht) on 11 September 1987 by
which he was convicted of rape and sexual harassment and sentenced to
five years' and nine months' imprisonment.
However, Article 27 para. 1 (b) (Art. 27-1-b) of the Convention
provides that the Commission shall not deal with any application
submitted under Article 25 (Art. 25) which is substantially the same
as a matter which it has already examined and if it contains no new
information. In the present case, the Commission recalls that on
10 January 1991 it declared inadmissible the applicant's Application
No. 16770/90. After examining the present complaint, the Commission
finds that it is essentially the same as the above application and that
it contains no relevant new information. It follows that this part of
the application must be rejected pursuant to Article 27 para. 1 (b)
(Art. 27-1-b) of the Convention.
2. The applicant seems also to complain that he was refused a
retrial.
However, the Commission recalls that this is not a right which
as such is included among the rights and freedoms guaranteed by the
Convention (cf. No. 14739/89, Dec. 9.5.89, D.R. 60 pp. 296, 301).
Furthermore the proceedings concerning applications for retrial do not
involve the determination of a civil right or a criminal charge within
the meaning of Article 6 (Art. 6) of the Convention (cf. No. 7761/77,
Dec. 8.5.78, D.R. 14 pp. 171, 173).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
3. The applicant finally complains that his deportation to Turkey
violated his right to respect for his family life. The Commission has
examined this complaint under Article 8 (Art. 8) of the Convention
which states, insofar as relevant:
"1. Everyone has the right to respect for his ... 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 in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
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) of
the Convention (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, even assuming that the applicant has exhausted
domestic remedies in accordance with Article 26 (Art. 26) of the
Convention, finds that the applicant's complaints do not disclose any
appearance of a violation of Article 8 (Art. 8) for the following
reasons:
It is true that the applicant's wife and children have been
permitted to establish domicile in Germany where they lawfully reside.
Thus, the applicant's expulsion from Germany interfered with his right
to respect for family life within the meaning of Article 8 para. 1
(Art. 8-1) of the Convention. However, this interference is justified
under Article 8 para. 2 (Art. 8-2) of the Convention.
The Commission observes that the German authorities, when
deciding to deport the applicant from Germany, relied on Section 47,
Subsection 1, No. 1 and Section 49 of the Aliens Act. The interference
was therefore "in accordance with the law" within the meaning of
Article 8 para. 2 (Art. 8-2) of the Convention.
Moreover, the Commission observes that the applicant was
convicted of serious criminal offences, namely of rape and of sexual
harassment. The Commission notes in particular that the German courts
considered that the applicant's presence in Germany would constitute
a danger for the public safety. After having considered all
circumstances, they found his family links did not outweigh the public
interest in imposing his deportation. Taking into account the margin
of appreciation which is left to Contracting States in such
circumstances (see Eur. Court H.R., Berrehab judgment of 21 June 1988,
Series A no. 138, p. 15, para. 28), the Commission does not find that
the German authorities achieved an improper balance between the
interests involved.
The Commission therefore considers that the interference with the
applicant's right to respect for family life was justified under this
provision in that it could reasonably be considered "necessary in a
democratic society ... for the prevention of disorder or crime".
The application is therefore manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to President
the Second Chamber of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy