Lexploria

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)

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UGURLUKOC v. GERMANY

UGURLUKOC v. GERMANY

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