SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 77887/01
by Amin Abdel Hafiz Mohamed RAMADAN
against Hungary
The European Court of Human Rights (Second Section), sitting on 21 October 2003 as a Chamber composed of
MrJ.-P. Costa, President,
MrA.B. Baka,
MrGaukur Jörundsson,
MrK. Jungwiert,
MrV. Butkevych,
MrsW. Thomassen,
MrM. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 30 November 2001 and registered on 17 December 2001,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Amin Abdel Hafiz Mohamed Ramadan, is an Egyptian national, who was born in 1957 and currently lives in Tápióbicske, Hungary. The application was introduced by the applicant’s wife, Mrs J. Ramadan, on his behalf. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant arrived in Hungary from Egypt in 1990 as a tourist. He has lived there ever since, although he never obtained a residence permit. In 1992 he married a Hungarian national. Three children have been born of the marriage.
On 15 December 1995 the Budapest Regional Court convicted the applicant of attempted murder on account of the fact that, in the course of a quarrel, he had stabbed a Mr A. He was sentenced to four years’ imprisonment and to expulsion from Hungary on his release from prison. On 12 June 1996 the Supreme Court upheld the judgment.
Subsequent to his early release from prison, on 4 July 1997 the Aliens Administration Department of the Budapest Police Headquarters ordered that the applicant be expelled and banned from the territory of Hungary for a ten-year period. The territorial ban was made under Article 23(1a) of Act no. 86 of 1993 on Aliens Administration. He unsuccessfully lodged an objection against the ban with the National Police Headquarters.
On 21 May 2001 the applicant’s petition for a pardon was turned down by the President of the Republic. On 31 August 2001 the Aliens Administration Department ordered the immediate enforcement of the expulsion order.
On 26 March 2002 the President of the Republic pardoned the applicant in respect of the territorial ban.
The applicant’s wife submitted that, notwithstanding this pardon, no residence permit has ever been issued to the applicant.
On 20 December 2002 the Government informed the Registry that – despite the grant of a pardon removing any legal obstacles to the issue of a residence permit – the applicant had failed to request a permit from the competent Budapest and Pest County Regional Directorate of the Immigration and Naturalisation Office. Meanwhile, criminal proceedings have been instituted against the applicant on charges of drug abuse. In this connection, a ‘certificate of temporary stay’, to be renewed monthly, has been issued to the applicant ex officio pending his trial. A bill of indictment was preferred on 7 November 2002.
On 10 February 2003 the Registry invited the applicant to comment on the Government’s submissions. This letter was received at the applicant’s address against signature on 18 February 2003. There has been no communication with the Registry from the applicant ever since.
COMPLAINT
The applicant complains under Article 8 of the Convention that his possible expulsion, in the absence of a residence permit, from Hungary to Egypt would amount to a violation of his right to respect for family life in that he would have to leave behind his Hungarian wife and their three Hungarian-born children.
THE LAW
1.The applicant complains that the fact that he does not hold a residence permit in Hungary exposes him to the risk of being expelled to Egypt, in breach of his right to respect for his family life. He invokes Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
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.”
2.The Government argue that the applicant no longer faces a risk of expulsion since he has been pardoned in this respect. The applicant contests this.
Article 34 of the Convention provides:
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
The Court observes that on 26 March 2002 the President of the Republic pardoned the applicant as regards the implementation of the territorial ban. In these circumstances, the applicant can no longer claim to be a victim of a violation of his rights under the Convention or its Protocols as required by Article 34 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.
3.In so far as the absence of a residence permit is concerned, the Government submit that the applicant did not exhaust domestic remedies in that he failed to apply for a residence permit. The applicant does not address this issue.
Article 35 § 1 of the Convention, in so far as relevant, provides:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ... .”
The Court observes that there is no right as such under the Convention to a residence permit. Quite apart from this consideration, it notes that the applicant did not avail himself of the possibility of requesting a residence permit from the competent Directorate of the Immigration and Naturalisation Office. It follows that this part of the application must be rejected, pursuant to Article 35 § 4, for non-exhaustion of domestic remedies as required by Article 35 § 1 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy