AS TO THE ADMISSIBILITY OF
Application No. 16846/90
by Z.Y.
against the Federal Republic of Germany
The European Commission of Human Rights sitting in private
on 13 July 1990, the following members being present:
MM. S. TRECHSEL, Acting President
J.A. FROWEIN
F. ERMACORA
G. SPERDUTI
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
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 5 July 1990
by Z. Y. against the Federal Republic of Germany and registered
on 11 July 1990 under file No. 16846/90;
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
The applicant, a Kurd, is a Turkish citizen, born in 1952.
He is represented by Messrs. Hecker and Partners, a law firm in
Munich.
According to his statements and the documents submitted he
has been living in the Federal Republic of Germany since 1971. His
wife is Turkish and they have three children, two of whom were born in
the Federal Republic of Germany. The family is living is Ingolstadt.
On 28 October 1982 the applicant was convicted of drug
trafficking and sentenced to twelve years' imprisonment. Conviction
and sentence became final on 16 March 1983. He served two-thirds of
the sentence and was released on probation on 16 December 1988.
On 15 April 1983 the competent authorities ordered the
applicant's expulsion after his release.
In the appeal proceedings the authorities declared on
23 September 1987 that the applicant would not be expelled as long as
there was a danger that a death penalty, which might be imposed on him
in Turkey for the drug trafficking offences which led to his conviction
in Germany, would in fact be executed.
On 27 June 1988 the competent authorities in Ingolstadt
informed the applicant that the execution of the expulsion order was
no longer stayed as according to available information there was no
longer a risk that he would receive a death penalty in Turkey. The
applicant brought an action before the Administrative Court in Munich
which decided in his favour on 14 December 1988. The Court held that
the risk of an execution of a possible death penalty was, in the sense
of legal guarantees, excluded only if the offence in question was no
longer subject to capital punishment or if the Turkish Government had
made a binding declaration that it would not execute a death penalty
in the applicant's case. As these requirements were not met the
authorities were bound by their declaration of 23 September 1987.
On appeal, this judgment was set aside by the Bavarian Court
of Appeal (Bayerischer Verwaltungsgerichtshof) and the applicant's
action dismissed on 3 October 1989. This Court considered that, in
view of the sentence already imposed on him in the Federal Republic of
Germany, it could not be expected that the applicant have a death
penalty imposed on him in Turkey for the same offences. In any event
the nearly unanimous opinion prevailed in Turkish legal writing that
the death penalty should be abolished and death penalties were in fact
no longer executed since 1984 as followed from a publication of Dr. F.
Yenisey of the University of Istanbul. A report of 20 January 1988 by
the Foreign Office, so the Court added, confirmed this situation.
Since 1960 no offender in drug trafficking had received a death
sentence.
Insofar as the applicant had also alleged that he risked being
tortured in Turkey the Court pointed out that torture was, according
to the new Turkish penal law, a punishable offence. It added that
under the Özal Government criminal proceedings were instituted on the
suspicion that public officials had committed the offence of torture.
Even if according to press reports offences of the kind in question
still risked occurring, this did not mean that such a risk existed in
the applicant's case.
The applicant's complaint against the appellate court's
refusal to grant him leave to appeal on points of law (Revision) was
rejected by the Federal Administrative Court (Bundesverwaltungsgericht)
on 7 February 1990.
The applicant then lodged a constitutional complaint which was
rejected by a group of three judges of the Federal Constitutional
Court (Bundesverfassungsgericht) on 8 June 1990 as offering no
prospects of success. In the Court's view the applicant had not shown
that the reports relied on by the Administrative Court of Appeal were
incorrect. He had submitted no proof for his allegation that he
risked torture in connection with prosecution for a non-political
offence. Insofar as the applicant invoked the right to protection of
family life the group of three judges stated that he failed to exhaust
ordinary remedies as he did not pursue this particular complaint in
the previous proceedings.
The applicant submits a letter dated 12 December 1988
addressed by Amnesty International to his counsel stating that death
sentences may still be imposed in case of conviction for organised
drug trafficking and that it cannot be said whether such a sentence
would receive ratification by the Turkish National Assembly. The
letter refers to an Amnesty International report of 1 June 1987 in
which it is stated that no executions have taken place since 1984 and
that the majority of death sentences in Turkey have been passed by
military courts. The applicant has also submitted press cuttings
according to which Amnesty International investigations proved that
persecution and torture for political reasons still occurred in
Turkey.
COMPLAINTS
The applicant considers that his expulsion would amount to a
violation of Articles 2 para. 1, 3, 6 and 8 of the Convention, Article 1
of Protocol No. 6 and Article 4 of Protocol No. 7. He requests the
Commission to apply Rule 36 of the Commission's Rules of Procedure in
his case.
THE LAW
The applicant complains of his imminent expulsion to Turkey,
where allegedly he risks being sentenced to death and executed and/or
tortured.
1. The Commission has constantly held that the right of an alien
to reside in a particular country is not as such guaranteed by the
Convention. However, expulsion may in exceptional circumstances
involve a violation of the Convention, for example where there is a
serious fear of treatment contrary to Article 3 (Art. 3) of the
Convention (see No. 12102/86, Dec. 9.5.86, D.R. 47 p. 286).
The Commission is not called upon to examine whether the
applicant's submissions concerning the danger of a death sentence
might raise an issue under Article 3 (Art. 3) as according to the
findings of the German courts, uncontested by the applicant, no death
penalty has been pronounced in Turkey in cases concerning drug
trafficking and no death penalties have been executed since 1984 and
in legal writing in Turkey the opinion prevails that the death penalty
should be abolished. There is nothing to show that these findings are
arbitrary and not corroborated by reliable evidence. The German
courts refer to an article written by a member of the University of
Istanbul and to reports of the Foreign Office of the Federal Republic
of Germany.
The letter and report of Amnesty International, referred to by
the applicant, do not constitute any prima facie evidence to the
contrary. While Amnesty International is of the opinion that the
death penalty may still be imposed by Turkish courts in drug
trafficking matters, as it has not yet been abolished, it admits that
since 1984 no executions have occurred and therefore concludes that no
prediction can be made as to whether or not a possible death penalty
would in fact be executed.
Insofar as it is reported by Amnesty International that
torture still occurs, the Commission further notes that these reports
are related to prosecution for political offences.
In these circumstances the Commission cannot find that the
applicant's expulsion would be contrary to Article 3 (Art. 3) of the
Convention on account of a risk of a death sentence or ill-treatment
in Turkey.
In any event the Commission notes that after his return to
Turkey the applicant can bring an application before the Commission
under Article 25 (Art. 25) of the Convention in respect of any
violation of his Convention rights by the Turkish authorities.
It follows that the application must to this extent be
rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
2. Insofar as the applicant invokes the right to protection of
family life (Article 8 para. 1) (Art. 8-1), the Commission notes that
the Federal Constitutional Court rejected this complaint for
non-exhaustion of ordinary remedies. It follows that the applicant
cannot be considered as having exhausted domestic remedies and the
application must in this respect be rejected under Articles 26 (Art. 26)
and 27 para. 3 (Art. 27-3) of the Convention.
3. Insofar as the applicant further complains about his expulsion
under Article 6 (Art. 6) of the Convention, Article 1 of Protocol No.
6 (P6-1) and Article 4 of Protocol No. 7 (P7-4), the Commission has
examined these remaining complaints as they have been submitted.
However, after considering these complaints as a whole, the Commission
finds that they do not disclose any appearance of a violation of the
provisions invoked by the applicant.
The application is to this extent again 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.
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (S. TRECHSEL)
Full & Egal Universal Law Academy