AS TO THE ADMISSIBILITY OF
Application No. 14312/88
by L.E.
against the Federal Republic of Germany
The European Commission of Human Rights, sitting in private,
on 8 March 1989, the following members being present:
MM. S. TRECHSEL, Acting President
J. A. FROWEIN
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Sir Basil HALL
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 11 October 1988
by Leila Sami El Makhour against the Federal Republic of Germany and
registered on 25 October 1988 under file No. 14312/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to:
- the respondent Government's observations of 5 December 1988
and the applicant's observations in reply of 16 December 1988,
31 January and 13 February 1989;
- the parties' submissions at the oral hearing on 8 March 1989;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
The applicant, born in 1957, is presently staying in Berlin
with her Lebanese husband and three children, born in 1977, 1980 and
1982. She is apparently of Palestinian origin. She first had a
Palestinian identity card and later she also possessed a Lebanese
passport. However, it is in dispute whether or not the applicant
acquired Lebanese nationality upon her marriage and whether the
passport was valid. The Berlin Registration Office (Einwohneramt)
registered the applicant as a stateless person. Before the Commission
she is represented by Mr. Kierzynowski, a lawyer practising in Berlin.
In August 1978 the applicant and her husband arrived in
Berlin for the first time. They both applied for political asylum.
In February 1980 they returned to Beirut. The asylum proceedings were
therefore discontinued. In May 1981 the applicant and her husband
came to Berlin a second time. They again applied for political
asylum. Their requests were dismissed in November 1982. The spouses
instituted court proceedings; however, in January 1983 they withdrew
their actions and left Berlin.
In April 1984 they came for the third time to Berlin and again
applied for political asylum. Since that time they have been staying
with their three children in Berlin. In July 1984 the applicant and
her husband again withdrew their requests for political asylum. The
Berlin Registration Office, having regard to a general policy not to
expel persons to Lebanon, issued provisional permissions for them to
stay (Duldungen).
On 21 December 1987 the Berlin Registration Office, having
regard to a general instruction of the Berlin Senator of the Interior
(Senator für Inneres) dated 1 October 1987 concerning all persons
from Lebanon staying in Berlin at that date ("Altfallregelung"),
granted the applicant's husband a residence permit.
The instruction of the Berlin Senator of the Interior of 1
October 1987 provides that all persons from Lebanon who have stayed in
Berlin before 1 October 1987 pending or after asylum proceedings and
who have minor children will be granted a residence permit. Excluded
are inter alia 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), only stateless male
Palestinians of an age liable for military service would be exposed to
such risks and dangers in Lebanon that they are in general not to be
deported to Lebanon.
On 15 February 1988 the Berlin Registration Office dismissed
the applicant's request for a residence permit. The Office found 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 applicant had been
convicted of shop-lifting four times. On 29 May 1979 the Tiergarten
District Court (Amtsgericht) had fined the applicant 600 DM for theft.
On 11 January 1983 the Tiergarten District Court had sentenced the
applicant to three months' imprisonment on three counts of theft, and
the execution of the sentence had been suspended on probation. On
6 February 1986 the Tiergarten District Court had sentenced the
applicant to three months' imprisonemnt for theft, and the execution
of the sentence had again been suspended on probation. On 19 December
1986 the Tiergarten District had sentenced the applicant to three
months' imprisonment for theft and suspended the execution of the
sentence on probation. The appeal (Berufung) of the Berlin Public
Prosecutor's Office (Staatsanwaltschaft) had been dismissed by the
Berlin Regional Court (Landgericht) on 6 March 1987.
On 15 February 1988 the Berlin Registration Office ordered
the applicant to leave the Federal Republic of Germany within a month
and warned her that she would be deported to Lebanon.
On 23 March 1988 the applicant lodged an appeal (Widerspruch)
and requested the suspension of the deportation order. She submitted
in particular that the envisaged deportation would violate her right
to respect for her family life under the Basic Law (Grundgesetz).
On 30 June 1988 the Berlin Administrative Court (Verwaltungs-
gericht) dismissed the applicant's request for a suspension of the
decision of 15 February 1988 (Antrag auf einstweiligen Rechts-
schutz). The Court found that under the relevant provisions of the
German Aliens' Act (Ausländergesetz) the applicant was obliged to
leave the territory of the Federal Republic of Germany. The Court
considered the applicant to be a Lebanese national. The provisions of
the instruction of 1 October 1987 did not apply to her on the ground
that she had committed several criminal offences and had been
sentenced to a total of more than three months' imprisonment. The
obligation to leave the country and the possible deportation to Lebanon
would not cause a particular hardship to the applicant's family life,
because her husband and children were able to join her.
Under S. 24 para. 1 of the Code of Administrative Procedure
(Verwaltungsverfahrensgesetz) the competent authority has, ex officio,
to examine the facts. The authority decides upon the manner and
extent of investigations; it is not bound by the parties' submissions
and requests to take evidence. Under S. 86 para. 1 of the Code of
Administrative Court Procedure (Verwaltungsgerichtsordnung) the court
has, ex officio, to examine the facts; the parties are to be heard.
The court is not bound by the parties' submissions and requests to
take evidence.
The applicant's appeal (Beschwerde) against the above refusal
of a suspension was dismissed by the Berlin Administrative Court of
Appeal on 25 July 1988. The Administrative Court of Appeal found in
particular that the refusal of a residence permit did not interfere
with the applicant's right to respect for her family life in a
disproportionate way.
The applicant's petition to the Berlin Diet (Abgeordnetenhaus)
was unsuccessful.
On 2 March 1989 the Berlin Senator of the Interior dismissed
the applicant's appeal of 23 March 1988 against her deportation.
Referring to the decisions in the suspension proceedings, the Senator
found in particular that the applicant had to accept a separation of
her family at least for some time. Furthermore, even assuming that
the applicant was of Palestinian origin, she had in the meantime
acquired Lebanese nationality and had been able to travel from and to
Lebanon with a Lebanese passport. In July 1988 a "laissez-passer" had
therefore been correctly issued for her as travelling document,
stating her Lebanese nationality. Moreover, the Senator found that
the applicant had failed to substantiate individual reasons to fear
persecution in Lebanon as a woman of Palestinian origin. The Senator
referred in this respect to a report of the Foreign Office (Auswär-
tiges Amt) dated 1 July 1988 according to which Palestinians who are
integrated in Lebanon can live there without problems. Finally, the
Senator considered that the applicant's sentences had exceeded by far
the limits for a residence permit under the instruction of 1 October
1987, and that she did not even qualify for a provisional residence
permit on probation ("Bewährungsduldung"). The applicant could, under
the relevant regulations, expect permission to return to her family in
Berlin at the earliest two years after her departure ("Die Wieder-
einreise zu Ihrer hier lebenden Familie unter Einhaltung der Einreise-
vorschriften kann Ihnen frühestens nach zwei Jahren - gerechnet vom
Tag Ihrer Ausreise an - in Aussicht gestellt werden.").
COMPLAINTS
1. The applicant complains under Article 3 of the Convention
that her envisaged deportation to Lebanon would amount to inhuman
treatment. She submits in particular that she has no relatives in
Beirut who could support her. She fears that she would, as a woman
without protection, be exposed to the dangers and risks of the civil
war in Lebanon. As a Palestinian she would be persecuted and
discriminated against in Lebanon. She submits that she is of
Palestinian origin and did not acquire Lebanese nationality upon
marriage to her husband. Furthermore, she fears that the Lebanese
authorities will not accept her "laissez-passer" as a valid document
on the ground that such "laissez-passer" are generally only issued to
stateless Kurds and stateless Palestinians who are not registered with
the UNRWA. She would therefore risk arrest upon her arrival in
Lebanon.
2. The applicant also complains under Article 8 para. 1
of the Convention that the decision of the German authorities to
deport her to Lebanon violates her right to family life. She submits
that, having regard to the interests of their children and their
further development, her husband will not be able to follow her to
Lebanon. She considers that her previous convictions do not justify
this interference under Article 8 para. 2 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 October 1988 and
registered on 25 October 1988.
On 10 November 1988 the Commission decided that, in accordance
with Rule 42 para. 2 (b) of the Rules of Procedure, notice should be
given to the Government of the Federal Republic of Germany of the
application and that they should be invited to submit written
observations on the admissibility and merits of the application.
Furthermore, the Commission decided to indicate to the Government of
the Federal Republic of Germany, in accordance with Rule 36 of the
Rules of Procedure, that it was desirable in the interests of the
parties and the proper conduct of the proceedings before the
Commission not to deport the applicant to Lebanon until the Commission
had had an opportunity to examine the application further during its
December session.
The Government's observations of 5 December 1988 were received
on 9 December 1988.
On 15 December 1988 the Commission prolonged the indication
under Rule 36 of its Rules of Procedure until it had had an
opportunity to examine the application further during its January
session.
The applicant's observations in reply were submitted on
16 December 1988. Further observations were submitted by the
applicant on 31 January and 13 February 1989.
On 20 January 1989 the Commission decided to invite the
parties to a hearing on the admissibility and merits of the
application. Furthermore, it decided to prolong the indication under
Rule 36 of its Rules of Procedure until the date of the hearing.
On 7 February 1989 the President of the Commission decided
that legal aid should be granted to the applicant for the
representation of her case before the Commission.
At the hearing which was held on 8 March 1989 the parties were
represented as follows:
For the Government
Mr. Meyer-Ladewig Ministerialdirigent,
Federal Ministry of Justice, Agent
Mr. Voss Senatsrat,
Berlin Senator of
the Interior, Adviser
For the Applicant
Mr. Kierzynowski Lawyer, Representative
THE LAW
The applicant complains that her envisaged deportation to
Lebanon would amount to inhuman treatment and violates her right to
respect for her family life with her husband and three children. She
invokes Articles 3 and 8 (Art. 3, 8) of the Convention.
Article 3 (Art. 3) of the Convention provides that "no one shall be
subjected to torture or to inhuman or degrading treatment or
punishment." The Commission has constantly held that the deportation
or extradition of a person can, in certain exceptional circumstances,
involve a violation of Article 3 (Art. 3) where there is serious reason to
believe that the person to be deported or extradited will be subjected
to treatment prohibited by the Article in the receiving country (see
No. 8581/79, Dec. 6.3.80, D.R. 29 p. 48).
Article 8 para. 1 (Art. 8-1) of the Convention, inter alia, provides
that everyone has the right to respect for his family life. According to
Article 8 para. 2 (Art. 8-2) there shall be no interference by a public
authority with this right except such as is in accordance with the law and is
necessary in a democratic society, inter alia, for the prevention of disorder
or crime.
The respondent Government contend that the application is inadmissible
for non-exhaustion of domestic remedies within the meaning of Article 26 (Art.
26) of the Convention. They submit that the applicant has not exhausted the
main administrative appeal proceedings before the Berlin administrative courts,
and that she failed to raise the substance of her complaint under Article 3
(Art. 3) of the Convention in the court proceedings concerning her request for
a suspension of the deportation order.
The Commission recalls that if an individual complains that his
deportation violates Article 3 (Art. 3) of the Convention, only appeals with
suspensive effect can be considered effective (see No. 7216/75, Dec. 20.5.76,
D.R. 5 p. 137). In the present case, the applicant's request for a suspension
of the deportation order remained unsuccessful.
Furthermore, the Commission finds that, in the particular circumstances
of the present case, the applicant was not required to invoke before the
domestic authorities, in addition to her complaint about the imminent
separation from her family, her fears about the dangers and risks for her as a
single woman of Palestinian origin in Lebanon. The Commission notes in
particular that, according to the established case law of the Berlin
Administrative Court of Appeal, which was not questioned by the respondent
Government, it was accepted that only stateless male Palestinians of an age
liable for military service were exposed to such dangers that they should not
be deported to Lebanon. Consequently, no effective remedy as to this
allegation existed for the applicant. Moreover, it is to be noted that, under
S. 86 para. 1 of the Administrative Code of Procedure, the Berlin
administrative courts had, ex officio, to examine the facts and to apply the
law accordingly.
The applicant's complaint under Article 8 para. 1 (Art. 8-1) of the
Convention can also not be rejected for non-exhaustion of domestic remedies
under Article 26 (Art. 26) in conjunction with Article 27 para. 3 (Art. 27-3)
of the Convention, since it is only another aspect of the decision to deport
the applicant to Lebanon, which cannot be dealt with separately.
Furthermore, the Commission observes that the Berlin Senator of the
Interior, in his decision of 2 March 1989 dismissing the applicant's appeal of
23 March 1988, stated that the applicant could expect permission to return to
Berlin at the earliest after two years from the date of her departure. At the
hearing on 8 March 1989, the respondent Government submitted that in similar
cases foreigners who had not been granted a residence permit under the
instruction of 1 October 1987 and who had had to leave Berlin, had, for
humanitarian reasons, already been permitted to return to Berlin.
The Commission also notes that the Berlin Administrative Court and the
Berlin Court of Appeal, in the suspension proceedings in 1988, examined the
effect of the applicant's envisaged deportation upon her family life. The
Berlin Senator of the Interior, in the above decision of 2 March 1989, referred
to the reasoning of the Berlin Administrative Courts in the suspension
proceedings concerning the alleged violation of her right to respect for her
family life. The Commission observes that the main proceedings, which lasted
almost one year at the level of the administrative appeal proceedings, may not
terminate before expiry of the period of two years, when the applicant can
expect permission to return to Berlin.
The Commission considers that the applicant, in these special
circumstances, cannot be required to await the outcome of the main proceedings.
As to the well-foundedness of the application, the respondent
Government have submitted that the applicant failed to substantiate that she
would risk treatment contrary to Article 3 (Art. 3) of the Convention upon her
return to Lebanon. As regards Article 8 (Art. 8) of the Convention, the
Government maintain that she had not shown that her family could not follow her
to Lebanon. In any event, having regard to the applicant's conviction for
property offences, the interference with her right to respect for her family
life would be necessary in a democratic society for the prevention of disorder
and crime.
The Commission, however, considers that the applicant's complaints
under Articles 3 and 8 para. 1 (Art. 3, 8-1) of the Convention raise complex
issues of fact and law which can only be resolved by an examination of the
merits. The application cannot, therefore, be declared manifestly ill-founded.
No other grounds for inadmissibility have been established.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (S. TRECHSEL)