Information Note on the Court’s case-law 51
March 2003
Mogoş and Krifka v. Germany (dec.) - 78084/01
Decision 27.3.2003 [Section III]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Expulsion of stateless persons of Romanian origin: inadmissible
The applicants, a couple and their five children, are stateless persons of Romanian origin. They left Romania for Germany in 1990. In 1993, they renounced Romanian nationality. They attempted on several occasions to obtain residence permits in Germany: all their applications were rejected. On 7 March 2002, the applicants (with the exception of the first two children, who were married to German nationals) were expelled by the German State to Romania, notably pursuant to an agreement concluded between the two States in 1998, whereby Romania declared that was prepared to accept its former national who had become stateless persons. Since 7 March 2002 the deported applicants have remained in the transit centre of Bucharest Airport, refusing to enter Romania but wishing to return to Germany.
Inadmissible under Articles 3, 6 and 8: the applicants did not refer to the Federal Constitutional Court the complaints which they raised before the Court, on the ground that a constitutional action would have been bound to fail owing to Germany’s attitude. However, the mere fact of having doubts as to the prospects of success of a given action which is not clearly bound to fail does not constitute a valid reason for not using domestic remedies. Furthermore, the fact that, in the opinion of the applicants’ legal representative, a constitutional action had no prospect of success cannot suffice to justify a derogation from the requirement to exhaust all domestic remedies. In the present case, it is not established that an action before the Federal Constitutional Court would have had no prospect of success: non-exhaustion of domestic remedies.
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This summary by the Registry does not bind the Court.
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