The European Commission of Human Rights sitting in private on
10 December 1986, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
F. ERMACORA
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Mr. F. MARTINEZ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 (art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 8 October 1986 by F.
Y.H. against the Federal Republic of Germany and registered on 14
October 1986 under file No. 12461/86;
Having regard to
- the report provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the Commission's decision of 17 October 1986 to request
information from the applicant pursuant to Rule 42 para. 2 (a) of its
Rules of Procedure;
- the information provided by the applicant on 29 October 1986;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as they have been submitted by the applicant,
may be summarised as follows:
The applicant, a Lebanese citizen born in 1960, is currently residing
in Berlin. Before the Commission she is represented by
Mrs. H. Bischoff-Pflanz, chairperson of the Alternative List Fraction
in the Berlin Diet (Abgeordnetenhaus) and Mrs. E. Reese, a lawyer
practising in Berlin.
The applicant is married to a Palestinian residing in Berlin who is
allegedly no longer permitted to return either to the Lebanon or to
Egypt. The husband's request for asylum is currently pending before
the Berlin authorities.
The applicant's first request for asylum in Germany was rejected on
24 February 1983 whereupon on 28 March 1983 she was deported to the
Lebanon.
On 14 April 1983 the applicant returned to Berlin and on 15 April 1983
she requested political asylum. She submitted that if she returned to
the Lebanon she would disappear or be killed in view of the fact that
she and her husband had worked for the Al-Fatah and that she was
married to a Palestinian. This was sufficient for the Lebanese
Government and the Phalange to threaten her life. In this respect she
pointed out that upon her return to Beirut on 28 March 1983 she had
been maltreated at the airport by a military person and later
interrogated for two hours by five or six persons about her husband.
This stopped only when her brother and one K.E.-R., a companion of the
Lebanese Parliamentary President, fetched her. On 1 April 1983 she
was again interrogated and then locked up for two hours. On
14 April 1983 K.E.-R. accompanied her to the Beirut airport when she
left the country.
On 12 February 1985 the Federal Office for the Recognition of Foreign
Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge)
rejected the applicant's request for asylum. It found that
disturbances in the Lebanon resembling civil wars and the resulting
dangers for body and life could not be excluded for the future.
However, this exceptional state did not constitute a ground for
asylum. Moreover, the applicant had been able to leave the Lebanon in
April 1983 without problems. Assuming the difficulties to be true
which she had encountered on 28 March 1983 and 1 April 1983, this
could be explained as measures of the security police relating to her
husband. Nothing indicated that the applicant herself would be
persecuted. Moreover, an indication that the applicant's submissions
lacked a real basis could be seen in the fact that she had mentioned
her activities of 1980 and 1981 for Al-Fatah only at a hearing in 1984
and not while the first asylum proceedings were pending.
With reference to this decision, the Berlin Police President
(Polizeipräsident) requested on 17 April 1985 the applicant to leave
the country before 3 August 1985 (Ausreiseaufforderung). The
President added that it could be expected from the applicant to await
in the Lebanon the outcome of the asylum proceedings instituted by her
husband.
On 21 April 1986 the Police President informed the applicant that he
intended to invite her to leave the country and that the prospective
order would be based on the fact that she had committed criminal
offences. In particular, by decision of 9 June 1983 she had been
sentenced for theft of goods of insignificant value (Diebstahl
geringwertiger Sachen) by the Tiergarten Juvenile Court
(Jugendgericht) to a fine of 15 rates per diem of 4.- DM. On
22 December 1984 the Tiergarten District Court (Amtsgericht), in
summary proceedings (Strafbefehlsverfahren), fined the applicant on
the ground of theft to 30 rates per diem of 20.- DM. On 24 January
1985, the Tiergarten Juvenile Court sentenced the applicant to three
months' imprisonment on probation on the grounds of jointly committed
theft (gemeinschaft- licher Diebstahl).
On 17 May 1985 the applicant filed an objection (Widerspruch) against
the order of 17 April 1985. Therein she postulated a right to remain
in Germany on the basis of Article 6 of the Basic Law (Grundgesetz)
which protects marriage, family and children born out of wedlock. The
fact that she was married to a Palestinian and had worked for the
Al-Fatah would prevent her from creating for herself a basis of
existence in the Lebanon.
On 26 May 1986 the applicant also replied to the order of
21 April 1986, claiming in particular that the deportation was not
justified in view of Article 6 of the Basic Law.
The Berlin Police President informed the applicant on 5 June 1986,
with reference to the criminal offences which she had committed, that
she had to leave the Federal Republic of Germany within one month.
Thereupon, on 4 July 1986, the applicant filed an objection against
the order of 5 June 1986, claiming that it had not been sufficiently
considered under Article 6 of the Basic Law that, if the applicant was
expelled, the separation from her husband would in fact be of a
permanent nature.
On 10 July 1986 she applied for suspensive effect to be given to the
objection of 4 July 1986. In her statement, the applicant pointed out
that her presence in Germany had been tolerated for nearly a year
after the convictions. Moreover, her deportation would imply a
permanent separation from her husband contrary to Article 6 of the
Basic Law.
On 28 July 1986 the Berlin Administrative Court (Verwaltungs- gericht)
rejected the applicant's request to grant suspensive effect. It found,
inter alia, that the asylum proceedings had been terminated with legal
force on 12 February 1985 and that, on 5 June 1986, the Police
President had not incorrectly referred to the applicant's three
criminal convictions. The applicant could also not claim permanent
residence in Germany on the basis of Article 6 of the Basic Law. It
could be expected from the applicant to await in the Lebanon the
outcome of the husband's asylum proceedings. Only if his request was
rejected would the question have to be examined whether, as the
applicant alleged, it was impossible for the spouses to find a country
were they could live together. Finally, the Court also saw no
impediment to the applicant's expulsion in one of the grounds
mentioned in S. 14 para. 1 of the Aliens' Act (Ausländergesetz). This
provision prohibits the expulsion of a foreigner to a country where
his life or his freedom is threatened, inter alia, on account of his
belonging to a particular social group.
In her subsequent appeal (Beschwerde) the applicant referred first to
the fact that her passport was no longer valid for which reason the
German Red Cross, which organised the return flights to the Lebanon,
would no longer give her a 'plane ticket. In addition, she pointed
out in respect of Article 6 of the Basic Law that it was already now
clear that her husband, who was a stateless person, would not be able
to return to the Lebanon, and that the Federal Republic of Germany was
the only country in which the spouses could live together.
The applicant's appeal was rejected by the Administrative Court of
Appeal (Oberverwaltungsgericht) on 29 August 1986. The Court regarded
it as irrelevant whether or not the applicant could obtain a 'plane
ticket. The issue under Article 6 of the Basic Law would only arise
after the asylum proceedings concerning the husband had been
concluded.
COMPLAINTS
1. The applicant has complained under Article 3 (art. 3) of the
Convention of her imminent expulsion to the Lebanon. She submits that
as a Shiite she would be regarded by the Amal militia as a traitor
since she has married a Sunnite Palestinian. As the wife of a
Palestinian, she would be open to attack by all the competing militia,
even if she attempted to stay in a Palestinian camp. These attacks
would constitute inhuman treatment and might even threaten the
applicant's life.
2. The applicant has in a subsequent letter to the Commission
also alleged that her expulsion to the Lebanon would permanently
separate her from her husband, who is not entitled to reside in the
Lebanon, and thus infringe her right to respect for family life within
the meaning of Article 8 (art. 8) of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was lodged on 8 October 1986 and registered on
14 October 1986.
On 17 October 1986 the Commission decided in accordance with Rule 42
para. 2 (a) of the Commission's Rules of Procedure to invite the
applicant to submit further information on the application.
The information was provided by the applicant on 29 October 1986.
THE LAW
1. The applicant complains under Article 3 (art. 3) of the
Convention of her imminent expulsion to the Lebanon. She submits
that, as the wife of a Palestinian, she would be open to attacks by
competing militia which would constitute inhuman treatment and might
threaten her life.
Article 3 (art. 3) of the Convention forbids, inter alia, inhuman or
degrading treatment and the Commission has consistently held that the
expulsion or extradition of a person could, in certain exceptional
circumstances, involve a violation of Article 3 (art. 3) where there
is serious reason to believe that the person to be expelled or
extradited will be subjected to treatment prohibited by the Article in
the receiving country (see No. 8581/79, Dec. 6.3.80, D.R. 29 p. 48).
However, the Commission is not required to decide whether or not the
facts alleged by the applicant disclose any appearance of a violation
of this provision as, under Article 26 (art. 26) of the Convention, it
may only deal with a matter after all domestic remedies have been
exhausted according to the generally recognised rules of international
law.
The Commission notes at the outset that the applicant has not shown
that she objected to the decision which refused her request for
political asylum on 12 February 1985, or that she eventually raised an
action in this respect before the administrative courts. However, the
Commission recalls its constant case-law according to which, if an
individual complains that his deportation, in execution of an
expulsion measure, exposes him to a serious danger, appeals without
suspensive effect cannot be considered effective. For this reason,
remedies in connection with the asylum proceedings cannot be regarded
as effective in cases such as the present one (see No. 7216/75,
Dec. 20.5.76, D.R. 5 p. 137).
In this respect the Commission observes that, on 4 July 1986, the
applicant objected to the deportation order of 5 June 1986. On
10 July 1986 she applied for suspensive effect to be given her
objection, though this request was eventually rejected by the
Administrative Court and, on 29 August 1986, by the Administrative
Court of Appeal.
Nevertheless, the Commission recalls that under Article 26 (art. 26)
of the Convention it is also required that the substance of any
complaint made before the Commission should have been raised during
the proceedings concerned.
In the present case the applicant is complaining before the Commission
under Article 3 (art. 3) of the Convention of the inhuman treatment
which she will allegedly suffer if she returns to the Lebanon where,
according to her submissions before the Commission, she would be
exposed to attack by the competing militia. However, in the
proceedings before the Administrative Court she complained in
principle that the deportation would separate her permanently from her
husband and thus be contrary to Article 6 of the Basic Law which
protects marriage and family life.
It is true that on 28 July 1986 the Administrative Court found that no
impediment to the applicant's expulsion could be seen in one of the
grounds stated in S. 14 para. 1 of the Aliens' Act which prohibits
expulsion of a foreigner into a State where in certain circumstances
his life or freedom may be threatened.
Nevertheless, the applicant has not shown that in the subsequent
appeal proceedings before the Administrative Court of Appeal she
raised either in form or in substance the complaints which she is now
making before the Commission. Moreover, an examination of the case
does not disclose the existence of any special circumstances, which
might have absolved the applicant, according to the generally
recognised rules of international law, from raising her present
complaint in those proceedings.
It follows that the applicant has not complied with the condition as
to the exhaustion of domestic remedies and her application must be
rejected under Article 27 para. 3 (art. 27-3) of the Convention.
In any event, the Commission finds that the application is also
manifestly ill-founded for the following reasons. Even assuming that
the Commission may in such cases take into account an alleged danger
arising from autonomous groups (see No. 8581/79, ibid.), the applicant
has provided no evidence for her allegation that, while being a
Lebanese citizen, she would be persecuted as the spouse of a
Palestinian currently residing in Berlin, throughout the entire
Lebanon, or in a Palestinian camp established in the country in which
she would have to reside.
The applicant has therefore insufficiently substantiated that her
treatment in the Lebanon would render her expulsion contrary to
Article 3 (art. 3) of of the Convention. It follows that, even if she
had complied with the requirements of Article 26 (art. 26) of the
Convention, the application would have to be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(art. 27-2) of the Convention.
2. The applicant has in a subsequent letter to the Commission
also alleged that her expulsion to the Lebanon would permanently
separate her from her husband, who is not entitled to reside in the
Lebanon, and thus infringe her right to respect for family life within
the meaning of Article 8 (art. 8) of the Convention.
The Commission notes that the applicant filed on 4 July 1986 an
objection against the deportation order of 5 June 1986, and that the
proceedings are still pending. An issue arises therefore as to
whether the applicant has exhausted domestic remedies within the
meaning of Article 26 (art. 26) of the Convention. However, the
Commission is not required to resolve this issue since the application
is in any event inadmissible as being manifestly ill-founded.
The Commission has repeatedly held that no right of an alien to enter
or to reside in a particular country, nor a right not to be expelled
from a particular country, is as such guaranteed by the Convention
(see No. 9203/80, Dec. 5.5.81, D.R. 24 p. 239).
It is true that the applicant claims that her husband could not follow
her to the Lebanon and that, according to the Commission's case-law,
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) of
the Convention. This situation may arise where, as in the present
case, a married person is obliged to leave a State in which she has
been living with her spouse and where it is claimed that the spouse
would be unable to follow her to her new residence.
However, Article 8 para. 2 (art. 8-2) permits such interferences with
the rights guaranteed under paragraph 1 of that provision as are in
accordance with the law and necessary in a democratic society for the
prevention of disorder or crime, or for the protection of health and
morals.
The Commission, assuming that the applicant's expulsion from the
Federal Republic of Germany constitutes an interference with her
family life, nevertheless has to take account of her repeated
convictions for property offences. It therefore finds that the
applicant's proposed expulsion is justified under paragraph 2 of
Article 8 (art. 8-2) as a measure taken in accordance with the law and
necessary in a democratic society for the prevention of disorder or
crime.
It follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)