AS TO THE ADMISSIBILITY OF
Application No. 19899/92
by Enrique Jose SAENZ VANEGAS
against Cyprus
The European Commission of Human Rights (Second Chamber) sitting
in private on 8 December 1992, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
Mr. K. ROGGE, Secretary to the Second 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 21 April 1992 by
Enrique Jose SAENZ VANEGAS against Cyprus and registered on 24 April
1992 under file No. 19899/92;
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 citizen of Nicaragua, born in 1962. He is a
medical doctor residing in Nicosia. In the proceedings before the
Commission he is represented by Mr. Loukis Papaphilippou, a lawyer
practising in Nicosia.
The facts of the case as submitted by the applicant may be
summarised as follows.
The applicant and his wife, a Cypriot citizen, married in
Nicaragua in 1985. The applicant's wife gave birth to a child in 1986.
The applicant came to Cyprus in summer 1987. He was granted a residence
and work permit in 1990. He was employed as medical doctor at the
District Hospitals of Larnaca and Limasol.
At the request of the applicant's wife, the district court of
Limasol issued on 12 November 1991 an order against the applicant
prohibiting him from taking the child out of Cyprus.
On 7 January 1992 the applicant applied for an extension of his
residence and work permit. His request was rejected on 17 March 1992
by the Migration Department of the Ministry of Interior and the
applicant was ordered to leave Cyprus immediately.
On 8 April 1992 the above decision of the Ministry was
communicated to the Aliens' Police Department who was asked to take the
necessary action with a view to the applicant's expulsion. On 9 April
1992 the applicant was requested to present himself to the Aliens'
Police. The applicant refused to leave Cyprus.
COMPLAINTS
The applicant complains of the expulsion order issued against
him. He alleges that this order is a discriminatory and degrading
treatment and that it violates his rights to security, to respect for
his family life and to peaceful enjoyment of his possessions. The
applicant invokes Articles 3, 5, 8, 12 and 14 of the Convention and
Article 1 of Protocol No 1.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 April 1992. The applicant
requested the Commission to take action in order to stay the execution
of the expulsion order.
On 22 April 1992 the President of the Commission decided not to
indicate to the Government of Cyprus pursuant to Rule 36 of the
Commission's Rules of Procedure, the measure suggested by the
applicant.
The application was registered on 24 April 1992.
On 4 June 1992 the member of the Commission designated as
Rapporteur requested information by the respondent Government on the
facts of the case. The Government submitted the information requested
on 13 July 1992. The applicant submitted comments in reply on 3 August
1992.
THE LAW
The applicant complains of the expulsion order issued against him
and alleges that this order is contrary to Articles 3, 5, 8, 12 and 14
(Art. 3, 5, 8, 12, 14) of the Convention and Article 1 of
Protocol N° 1 (P1-1).
However, the Commission recalls that according to Article 26
(Art. 26) of the Convention, it can only deal with an application after
the exhaustion of domestic remedies according to the generally
recognized rules of international law. The Commission observes that in
the present case the applicant failed to challenge the expulsion order
before the Supreme Court of Cyprus and has not therefore exhausted the
domestic remedies available under Cypriot law. Moreover, the Commission
finds that the examination of the case does not disclose any particular
circumstance which could absolve the applicant, according to the
generally recognised rules of international law, from the obligation
to exhaust the domestic remedies at his disposal.
It follows that the applicant has not complied with the
obligation as to the exhaustion of domestic remedies and that the
application must be rejected pursuant to Article 27 para. 3 (Art. 27-3)
of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INDAMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy