AS TO THE ADMISSIBILITY OF
Application No. 11945/86
by Ibrahim and Nigar UGURLUKOC
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 12 March 1987, the following members being present:
MM. C. A. NØRGAARD, President
G. SPERDUTI
J. A. FROWEIN
M. A. TRIANTAFYLLIDES
E. BUSUTTIL
G. TENEKIDES
B. KIERNAN
A. S. GÖZÜBÜYÜK
A. WEITZEL
J. C. SOYER
H. G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr J. RAYMOND, Deputy Secretary to the Commission
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 1986
by Ibrahim and Nigar UGURLUKOC against the Federal Republic of
Germany and registered on 16 January 1986 under file No. 11945/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
Both applicants are Turkish citizens. They are married since
5 August 1982. Before the Commission they are represented by Mr Norbert
Wingerter and associates, lawyers practising in Heilbronn.
The first applicant entered the Federal Republic of Germany in
1977 to join members of his family and has been living there since then.
In 1984 he was in possession of a residence permit expiring on 4 June
1985 and also of a work permit valid for two years.
On 7 November 1983, the second applicant, who was born in
1963, entered the Federal Republic of Germany after having obtained a
tourist visa (Besuchersichtvermerk) expiring on 29 January 1984.
On 16 January 1984 the second applicant, who at that time was
in the sixth month of her pregnancy, applied to the City of Neckarsulm
for a residence permit (Aufenthaltserlaubnis).
Apparently a child was born to the applicants in April 1984.
On 26 July 1984 the second applicant instituted proceedings
for failure to act before the Stuttgart Administrative Court
(Verwaltungsgericht) as no decision on her application for a residence
permit had been taken so far.
On 16 November 1984 the City of Neckarsulm rejected the second
applicant's application. It based its decision essentially on a
decree (Erlass) of the Ministry for the Interior (of the Land Baden-
Württemberg), limiting the City's discretion and according to which a
residence permit would be granted only if the marriage had lasted
three years. Moreover, the second applicant had by-passed the
provisions on entry when applying for a tourist visa although actually
intending to join her husband and to stay permanently with him. At
the same time the second applicant was ordered to leave the Federal
Republic of Germany on or before 18 December 1984.
On 23 November 1984 the second applicant objected to this
decision (Widerspruch) and also requested to give suspensive effect to
her objection (die aufschiebende Wirkung des Widerspruchs anzuordnen).
On 26 November 1984 she requested the Stuttgart Administrative
Court before which the proceedings for failure to act were still
pending to quash the decision delivered by the City of Neckarsulm.
She also requested the Court to give supensive effect to her objection
of 23 November 1984.
On 21 January 1985 the Administrative Court rejected her
motion for suspensive effect.
The second applicant's appeal (Beschwerde) was rejected by the
Baden-Württemberg Administrative Court of Appeal (Verwaltungsgerichtshof)
on 6 May 1985.
Thereupon, both applicants lodged a constitutional complaint,
which the Federal Constitutional Court (Bundesverfassungsgericht)
rejected as lacking prospects of success on 10 July 1985.
On 29 November 1985 the Stuttgart Administrative Court
dismissed the second applicant's action in the substantive proceedings.
In November 1986 the second applicant, who had returned to
Turkey, was staying with the first applicant at Neckarsulm after
having obtained a tourist visa valid for three months.
COMPLAINTS
The applicants complain of the refusal of the German
authorities to grant the second applicant a residence permit.
Invoking Article 8 para. 1 of the Convention they submit that
the first applicant had been lawfully resident in the Federal Republic
of Germany for a long time and that therefore this country had become
the centre of his family life. He was determined to live there
together with his wife and their child. At the time when the second
applicant's request for a residence permit was denied both applicants
had lived together for a certain time and a family life had existed
between them.
Therefore the refusal to grant the second applicant's request
interfered with the applicants' right to respect for family life.
Moreover, this interference was not justified under Article 8
para. 2 as it was neither prescribed by law nor necessary in a
democratic society. The applicants argue that the refusal to grant
the second applicant's request for a residence permit was expressly
based on a ministerial decree which does not constitute a "law" within
the meaning of that provision. They also consider that the second
applicant's removal was not "necessary" within the meaning of Article
8 para. 2 as the interests protected by that provision would not be
adversely affected if she was allowed to stay in the Federal Republic
of Germany.
Finally, the applicants submit that there was a discrimination
contrary to Article 14 in that children and spouses of German
nationals and also of aliens other than Turkish nationals were allowed
to join their family members living in the Federal Republic of
Germany. This differentiating treatment was without justification and
arbitrary.
THE LAW
The applicants complain of the refusal of the German
authorities to grant the second applicant a residence permit enabling
her to stay with her husband. They also complain of discriminatory
treatment in this respect.
It is true that Article 8 (Art. 8) of the Convention secures to
everyone the right to respect for his family life and that according
to Article 14 (Art. 14) the enjoyment of this right shall be secured without
discrimination . In this respect the Commission recalls its constant
case-law that while the Convention does not as such guarantee a right for
aliens to enter, reside or remain in a particular country, the
expulsion from a country where close members of the deportee's family
are living may amount to an infringement of Article 8 (Art. 8) of the
Convention (cf. No. 9478/81, Dec. 8.12.81, D.R. 27 p. 243, 244; No.
11333/85, Dec. 17.5.85, unpublished). However, the Commission notes
that in the present case the second applicant has been granted only a
tourist visa of limited duration when entering the Federal Republic of
Germany and that the first applicant had also only a residence permit
of limited duration. Under these circumstances it appears doubtful
whether the applicants can claim a right under Article 8 (Art. 8) to
reside in the Federal Republic of Germany.
However, the Commission is not required to decide whether or
not the facts alleged by the applicants disclose any appearance of a
violation of this provision or of a discriminatory treatment contrary
to Article 14 (Art. 14) of the Convention. Article 26 (Art. 26) of
the Convention provides that the Commission may only deal with a case
after all domestic remedies have been exhausted according to the
generally recognised rules of international law.
In the present case the second applicant failed to lodge an
appeal (Berufung) against the decision of the Stuttgart Administrative
Court of 29 November 1985 concerning the merits of the case.
The first applicant was at no time a party to the proceedings
instituted by the second applicant before the Administrative Court,
nor did he himself bring an action before this court.
Therefore, neither of the applicants exhausted the remedies
available to them under German law.
The applicants' representative submits that an appeal in the
substantive proceedings would have been futile in view of the case-law
of the competent German courts, including the Federal Constitutional
Court. However, while recognising the principle that an applicant is
excused from pursuing domestic remedies which are bound to fail, the
Commission nevertheless finds that in such cases the applicant has to
show either by providing relevant court decisions or by presenting
other suitable evidence that a remedy available to him would in fact
have been to no avail. It is not sufficient to refer simply to case-
law without corroborating such an allegation by adequate means. Yet,
in the present case the applicants' lawyer did not furnish any
evidence or argument on this issue.
Moreover, it is true that the second applicant's appeal
(Berufung) in the substantive proceedings would have had to have been
decided by the same court which had previously dismissed her appeal
(Beschwerde) on the question whether suspensive effect should be given
to her objection. However, the Commission cannot subscribe to the idea
that in cases where a request for suspensive effect or other interim
relief was denied, an applicant would generally be excused from
further pursuing the substantive proceedings. This is especially true
when - as it is the case here - a further appeal to a higher court
exists in the substantive proceedings (Revision or
Nichtzulassungsbeschwerde to the Federal Administrative Court).
In this context the Commission further observes that, even if
the second applicant was obliged to leave the Federal Republic of
Germany while the substantive proceedings were still pending, it could
reasonably have been expected of her to await the outcome of these
proceedings in Turkey as she had entered the Federal Republic of
Germany on the basis of a tourist visa only and could not therefore
expect to be permitted to stay there.
Therefore, the Commission concludes that no special
circumstances existed which might have absolved the applicants,
according to the generally recognised rules of international law, from
exhausting the domestic remedies at their disposal.
It follows that the applicants have not complied with the
condition as to the exhaustion of domestic remedies and their
application must consequently be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)