AS TO THE ADMISSIBILITY OF
Application No. 34556/97
by N.B. and F.B.
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 9 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
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 13 January 1997
by N.B. and F.B. against Germany and registered on 21 January 1997
under file No. 34556/97;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Decides as follows:
THE FACTS
The first applicant is a Turkish citizen, born in 1971, and
currently living in Turkey. The second applicant, a Turkish citizen,
born 1970, is the wife of the first applicant and resides in Alpirsbach
(Germany).
Before the Commission the applicants are represented by
Mr. Rainer Schmid, a lawyer practising in Nagold.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The first applicant's parents arrived in Germany in 1968. The
applicant has five brothers and sisters. His elder brother lives in
Turkey. The applicant attended school in different places, at last in
Oberndorf. In 1988 he started to work in a factory in Alpirsbach-
Römmlingsdorf.
On 8 July 1988 he married the second applicant in Turkey. On
27 April 1989 he was issued a residence permit. In February 1990, the
second applicant followed him to Germany. A daughter was born in
November 1990 and a son in July 1991.
On 18 August 1994 the first applicant was convicted by the
Freudenstadt District Court (Amtsgericht) of rape and sentenced to two
years' and four months imprisonment. The District Court found the
applicant guilty of having raped a 19 year old girl in the night of
2 February 1994 in her car by using considerable violence. He had put
his hands around her neck, his thumbs on her larynx and threatened to
kill her if she refused to comply with his wishes. According to the
District Court he had not shown any regrets at the trial. He alleged
that the girl had previously had sexual intercourse with one of his
brothers and had agreed to have sexual intercourse with him as well.
The District Court described the first applicant as a "macho type man
who by reason of his origin and education apparently had difficulties
to understand that a woman would not want to have sexual intercourse
with him".
The first applicant's appeal against this judgment was dismissed
by the Rottweil Regional Court (Landgericht) on 24 February 1995. An
appeal on points of law and a petition for pardon were unsuccessful.
On 13 November 1995 the first applicant began to serve his
sentence.
On 20 December 1995 the Karlsruhe Regional Government
(Regierungspräsidium) ordered the first applicant's expulsion from
Germany and decided that the order to be enforced with immediate
effect. The Regional Government noted that the first applicant had been
convicted of a criminal offence and sentenced to more than two years'
imprisonment. Reference was made in particular to Section 47
para. 2 (1) of the Aliens Act (Ausländergesetz). According to this
provision, a foreigner shall be expelled from Germany if, by a final
judgment, he has been sentenced to a minimum of two years' imprisonment
and his sentence has not been suspended on remand. The Regional
Government recalled that the first applicant had an unlimited residence
permit and therefore enjoyed particular protection against expulsion.
However, pursuant to Section 48 para. 1 of the Aliens Act, a foreigner
could be expelled for serious reasons of public security and order. A
conviction of rape constituted such a reason. By ordering a the first
applicant's expulsion, the authorities had correctly exercised their
discretionary powers and had observed the principle of proportionality.
In the present case the first applicant's conduct and in particular the
absence of any regrets showed that he had no consideration for the
dignity of women. Special and general notions of prevention, namely the
risk that he might commit further offences, and to deterring other
aliens from committing similar offences, justified the first
applicant's expulsion. The Regional Government took account of the
applicant's personal situation, in particular that his wife and his two
children lived in Germany, that he had an employment and a residence
permit. However, the first applicant's youth, the rather recent arrival
of his Turkish wife in Germany and the young age of his children were
circumstances showing that the applicants would face no major problems
if they returned with their children to Turkey.
The first applicant lodged an administrative objection
(Widerspruch) against the expulsion order. These proceedings are still
pending.
On 16 January 1996 the Regional Government indicated as
additional reason for the immediate execution of the expulsion order
that the public interest prevailed over the private interests of the
first applicant to stay in Germany until the final decision was given
in this matter.
The first applicant's request to suspend, pending the outcome of
the appeal proceedings, the execution of the expulsion order was
dismissed by the Karlsruhe Administrative Court (Verwaltungsgericht)
on 26 August 1996. The Court found that the expulsion order had been
issued in accordance with the relevant provisions of the Aliens' Act.
The Regional Government had duly exercised their discretion and
correctly concluded that the public interest in the prevention of
disorder and crime outweighed the first applicant's interests in
staying in Germany. The Administrative Court stated in particular that
the applicant had used physical force against his victim when
committing the offence and had threatened to kill her. The first
applicant's readiness to use force and his disdain for the physical
integrity of others justified the fear that he might commit further
offences if staying in Germany. Even if, according to the Psychological
Service of the Rottenburg prison, there was no indication that the
first applicant might commit further sexual or other offences, the
Court considered that the circumstances of the committal of the offence
did not sufficiently exclude the risk of repetition. Finally, the
Administrative Court found that the interference with the first
applicant's respect for his family life was in any event justified
under para. 2 of Article 8 of the Convention.
In a letter addressed on 14 October 1996 to the applicants'
lawyer, the Psychological Service of the Rottenburg prison confirmed
that the there was no particular risk of the applicant committing
further sexual offences. However, they could not completely exclude
such a possibility. According to them, solely a further expert opinion
could give more indications on this subject.
The first applicant's appeal (Beschwerde) against the decision
of the Karlsruhe Administrative Court of 26 August 1996 was dismissed
by the Baden-Württemberg Administrative Court of Appeal
(Verwaltungsgerichtshof) on 12 November 1996.
On 7 January 1997 the Federal Constitutional Court
(Bundesverfassungsgericht), sitting as a panel of three judges, decided
not to admit the applicant's constitutional complaints for a decision.
In a letter of 17 January 1997 the Rottenburg prison authorities
stated that the applicant's conduct and work in prison were exemplary
and that he was authorised to move freely within the prison. From the
beginning of his detention his wife and children were paying him three
monthly visits. The prison authorities further stated that the first
applicant deeply regretted having committed the offence and that he was
resolved to undertake steps with a view to improving his personality.
If the first applicant were not subject to measures relating to his
status of a foreigner, he could have been granted provisional leave
from prison.
At the end of January or the beginning of February 1997 the first
applicant was expelled to Turkey.
COMPLAINTS
1. The applicants complain under Article 8 of the Convention that
the first applicant's expulsion to Turkey violates their right to
respect for family life.
They submit that the refusal to suspend the execution of the
expulsion order was not proportionate to the aim pursued. The first
applicant submits that he had been brought up and educated entirely in
Germany, that he is married to a Turkish woman living with their two
children in Germany and that he has a permanent employment in this
country. He has solely spent his holidays in Turkey where he has no
other relatives than an uncle.
The applicants stress that the first applicant's expulsion would
put an end to their family life and that they would suffer an
irreparable damage if the first applicant were to be separated from his
family for several years. The second applicant and the children are
seriously affected by the first applicant's expulsion. The children are
born in Germany and will attend school this year.
According to the applicants, the German authorities have not
correctly exercised their discretionary powers when affirming that
there was a risk of the first applicant committing further offences.
In this connection the applicants refer to the opinion given by the
Psychological Service of the Rottenburg prison on the favourable
prognosis of the first applicant's future conduct. They also refer to
the fact that the first applicant has already served most of the
sentence. His previous criminal behaviour did, therefore no longer
justify his expulsion. They also complain that the Administrative Court
of Appeal has decided without ordering an additional expert opinion.
2. The applicants further submit that the violation of Article 8 of
the Convention constitutes also an inhuman treatment contrary to
Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 13 January 1997 and registered
on 21 January 1997.
On 24 January 1997 the Commission decided not to apply Rule 36
of the Commission Rule's of Procedure.
THE LAW
1. The applicants complain of the refusal of the German authorities
to grant suspensive effect to the expulsion order given against the
first applicant pending the outcome of his appeal against the decision
to expel him from Germany. They allege that this immediate execution
of the expulsion decision and the first applicant's expulsion to Turkey
have the effect of breaking up there family life. They rely on
Article 8 (Art. 8) of the Convention which states, so far as relevant:
"1. Everyone has the right to respect for his private and
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 ... for the prevention of disorder or crime, ..."
The Commission first observes that the question in issue concerns
the refusal to suspend the execution of the expulsion order, but not
the expulsion order as such, in respect of which domestic remedies are
not yet exhausted.
The question before the Commission is therefore whether the
refusal of granting the expulsion order suspensive effect, pending the
applicant's appeal, reveals an appearance of a violation of the
Convention.
The Commission reiterates that no right of an alien to enter or
to reside in a particular country is as such guaranteed by the
Convention. Contracting States have the right, as a matter of well
established international law and subject to their treaty obligations
including the Convention, to control the entry, residence and expulsion
of aliens (see Eur. Court HR, Ahmed v. Austria judgment of 17 December
1996, to be published in Reports of Judgments and Decisions 1996,
para. 38).
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) (see Eur. Court HR, Moustaquim v. Belgium 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 considers that the execution of the impugned
measure amounted to an interference with the applicants' exercise of
their right to respect for their family life within the meaning of
Article 8 para. 1 (Art. 8-1) of the Convention. However, such
interference is not in breach of Article 8 (Art. 8), if it is justified
under Article 8 para. 2 (Art. 8-2) of the Convention.
As regards the lawfulness of the interference, the Commission
observes that, when refusing to grant the expulsion order suspensive
effect, the German authorities relied on Section 47 para. 2 (1) and 48
para. 1 of the Aliens Act. The interference was therefore "in
accordance with the law" within the meaning of Article 8 para. 2
(Art. 8-2).
Moreover, when refusing to grant the expulsion order suspensive
effect, the German authorities considered that the applicant had been
convicted of a serious offence and that immediate execution of the
expulsion order was necessary for the prevention of disorder and crime.
The Commission finds that this is a legitimate aim mentioned in
Article 8 para. 2 (Art. 8-2).
As regards the question whether the interference complained of
was "necessary in a democratic society", the Commission recalls that
the Contracting States enjoy a certain margin of appreciation in
assessing whether such a need for an interference exists, but it goes
hand in hand with European supervision (see, Eur. Court HR, Berrehab
v. the Netherlands judgment of 21 June 1988, Series A no. 138, p. 15,
para. 128; Funke v. France judgment of 25 February 1993, Series A
no. 256-A, p. 24, para. 55). The decisions given by the domestic
authorities in the field must be justified by a pressing social need
and, in particular, proportionate to the legitimate aim pursued (see,
e.g., Eur. Court HR, Nasri v. France judgment of 13 July 1995, Series A
no. 320-B, p. 25, para. 41).
The Commission notes that the administrative authorities had
regard to the applicant's private and family situation and in
particular to the fact that the first applicant was born in Germany and
to the situation of his family. They weighed his private and family
interests against the public interest in his immediate leaving the
country, based on his conviction for rape and on his sentence to more
than two years' imprisonment. This reasoning was confirmed by the
Baden-Württemberg Administrative Court of Appeal and not contradicted
by the Federal Constitutional Court.
In these circumstances, the Commission considers that the reasons
given by the German authorities are relevant and sufficient for the
refusal to grant the expulsion order suspensive effect and to expel the
first applicant before the termination of the proceedings concerning
the challenged order to leave Germany. The Commission further notes
that it is not unreasonable to expect the first applicant's Turkish
wife and young children to follow him to Turkey. The applicants have
not shown that the provisional execution of the expulsion order would
cause them irreparable or disproportionate damage. Rather the first
applicant will be free to return to Germany if he eventually succeeds
in his administrative court action. The Commission recalls in this
respect that Article 8 (Art. 8) of the Convention does not guarantee
a right to choose the most suitable place to develop family life (see
Eur. Court HR, Ahmut v. the Netherlands judgment of 28 November 1996,
to be published in Reports of Judgments and Decisions 1996, para. 71).
Weighing the applicants' private and family interests, and the public
interests at stake and taking into account the margin of appreciation
which is left to Contracting States in such circumstances, the
Commission does not find that the German authorities achieved an
improper balance between the interests involved.
Consequently, the interference with the applicants' right
guaranteed by Article 8 (Art. 8-2) was justified under para. 2 of that
Article in that it can reasonably be considered "necessary in a
democratic society ... for the prevention of disorder and crime." Thus
there is no appearance of a violation of Article 8 (Art. 8) of the
Convention.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicants maintain that the first applicant's expulsion from
Germany and the consequences for their family life has to be considered
as inhuman treatment contrary to Article 3 (Art. 3) of the Convention,
which provides:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission, having found that the decisions complained of
were justified under Article 8 para. 2 (Art. 8-2) of the Convention
considers that the same decisions cannot be regarded as constituting
inhuman or degrading treatment under Article 3 (Art. 3) of the
Convention (see No. 9427/78, Hendriks v. the Netherlands, Comm. Report
8.3.82, para. 130, D.R. 29 pp. 5, 20).
No risk of the first applicant being subject to torture or
inhuman treatment in Turkey has been alleged or made out.
It follows that this part of the application must also be
rejected as being 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