AS TO THE ADMISSIBILITY OF
Application No. 34919/97
by Arpad SETALO
against Germany
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1997, the following members being present:
Mrs. J. LIDDY, President
MM. E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
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 8 December 1996
by Arpad Setalo against Germany and registered on 14 February 1997
under file No. 34919/97;
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, a citizen of former Yugoslavia born in 1969, is
a heating mechanic residing at Villingen-Schwenningen in Germany.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant, who was born in Germany, spent the first 13 years
of his life in Germany. In 1982 he travelled with his parents to
Yugoslavia where he lived for eight years. While in Yugoslavia, the
applicant completed his schooling, trained as a heating mechanic, and
spent one year in military service.
In 1991 the applicant returned to Germany where he found
employment and was granted a tolerance authorisation (Duldung) in view
of the civil war in former Yugoslavia.
In 1992 the applicant filed a request for a residence
authorisation (Aufenthaltserlaubnis) in Germany, claiming that, if he
returned to former Yugoslavia, there was a danger that he would be
obliged to perform military service. The request was refused by the
Villingen-Schweningen municipality on 8 January 1993.
The applicant's subsequent action was dismissed on 19 September
1995 by the Freiburg Administrative Court (Verwaltungsgericht) as the
applicant had entered Germany in 1991 without a visa. The decision
stated that the applicant could file a further appeal with the Baden-
Württemberg Administrative Court (Verwaltungsgerichtshof).
It appears that the applicant has meanwhile been requested to
leave Germany.
COMPLAINTS
The applicant complains, without reference to a particular
Convention provision, of his forced return to former Yugoslavia. He
submits that he has had hardly anything to do with the Serb language;
that the people in former Yugoslavia are completely alien to him; that
he would not find employment there; and that he experiences his
expulsion as discrimination.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 December 1996.
On 2 January 1997 the Acting President decided not to apply
Rule 36 of the Convention.
The application was registered on 14 February 1997.
THE LAW
The applicant complains, without reference to a particular
Convention provision, of his forced return to former Yugoslavia. He
submits that he has had hardly anything to do with the Serb language;
that the people in former Yugoslavia are completely alien to him; that
he would not find employment there; and that he experiences his
expulsion as discrimination.
The Commission has examined these complaints under Articles 3
and 8 (Art. 3, 8) of the Convention.
Article 3 (Art. 3) of the Convention states:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
Article 8 (Art. 8) of the Convention states, insofar 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 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."
Under Article 26 (Art. 26) of the Convention the Commission may
only deal with a matter after all domestic remedies have been exhausted
according to the generally recognised rules of international law.
In the present case, the applicant has not shown that he filed
an appeal against the decision of the Freiburg Administrative Court of
19 September 1995. He has not shown either that in last resort he
obtained, by means of a constitutional complaint, a decision of the
Federal Constitutional Court (Bundesverfassungsgericht) on the
complaints he is now raising before the Commission.
The applicant has not therefore exhausted the remedies available
to him under German law according to Article 26 (Art. 26) of the
Convention, and his application must be rejected under Article 27 para.
3 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy