Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31968/96

by Ilja FUKS

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 23 October 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

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 17 April 1996 by

Ilja FUKS against Germany and registered on 19 June 1996 under file

No. 31968/96;

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, born in 1951, is a Ukrainian national. When

lodging his application, he was living in Berlin. In the proceedings

before the Commission, he is represented by Mr R. Portius and

Mr T. Schmidt, lawyers practising in Berlin.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

In 1990 the applicant came to the Federal Republic of Germany and

applied for refugee status, arguing his German origins. The

applicant's request was dismissed by the Berlin Municipality;

administrative court proceedings are pending.

On 31 October 1994 the Berlin Municipality ordered the

applicant's expulsion, pursuant to the relevant provisions of the

Aliens Act (Ausländergesetz). The applicant was ordered to leave

Germany within one month and informed that, should he not leave

voluntarily, his deportation would be ordered.

In its reasoning, the Municipality noted that on 9 July 1992 the

Berlin Regional Court (Landgericht) had committed the applicant for

trial on the charge of having acted as an accomplice to causing

grievous bodily injury. On 13 June 1992 the Regional Court, applying

S. 153a of the Code of Criminal Procedure (Strafprozeßordnung), had

discontinued the proceedings subject to the conditions that he paid a

sum of money amounting to DEM 20,000 to the Treasury (Justizkasse) and

compensation amounting to DEM 30,000 to the victim of the offence.

S. 153a of the Code of Criminal Procedure concerns the

discontinuation of criminal proceedings subject to conditions and

instructions (Auflagen und Weisungen). According to its paragraph 1,

the Public Prosecutor's Office (Staatsanwaltschaft) may, with the

consent of the competent court and the accused, provisionally refrain

from preferring an indictment relating to an offence (Vergehen) and at

the same time order the accused (1) to take measures providing

reparation, (2) to pay a sum of money to a charitable association or

the Treasury, (3) to take other measures or (4) to make maintenance

payments of a particular amount, if such conditions and instructions

can remove the public interest in prosecution and if this is not in

conflict with the seriousness of the guilt. If the accused fulfils the

conditions and instructions, the act can no longer be prosecuted as an

offence. Paragraph 2 provides that after indictment the court may, with

the consent of both the public prosecutor's office and the accused,

discontinue the proceedings until the end of the trial, during which

the facts are finally assessed, and impose the same conditions and

instructions as mentioned in paragraph 1.

The Municipality considered that the acts which formed the basis

of the trial against him showed that the applicant was not willing to

abide by the laws enacted for the protection of the public. As to the

offence in question, the Municipality stated that, as an accomplice,

the applicant had abducted his sister's housekeeper whom they had

suspected of theft. They had brought her into the forest and had

applied a brutal method to extort an admission of guilt and disclosure

of the hiding-place of the money in question, namely putting a plastic

bag over her head and thus repeatedly depriving her of oxygen.

Eventually she had been brought to her apartment where they had

continued to threaten her with violence. Their victim had finally been

scared to death and had jumped out of the window of her apartment,

situated on the second floor. She had suffered serious and lasting

injuries. The Municipality found that, in taking the law into his

hands, he had seriously violated public safety and order. His

wrongdoing (Fehlverhalten) necessitated his expulsion. Other

foreigners should thereby be discouraged from engaging in such unlawful

conduct.

As regards the applicant's argument that he had not been

convicted of the offence in question, the Municipality considered that

the Regional Court had discontinued the proceedings against him subject

to conditions on the ground that the trial had repeatedly been delayed.

It was unlikely that he would have made compensation payments to the

victim if innocent.

In these and the following proceedings, the applicant was

represented by counsel.

On 6 July 1995 the Berlin Administrative Court (Verwaltungs-

gericht) dismissed the applicant's request for an interim injunction

against his expulsion.

The Administrative Court found that on the basis of a summary

examination of the case in the context of the injunction proceedings

there were no reasons to doubt the lawfulness of the expulsion order.

The Administrative Court recalled that under the relevant provisions

of the Aliens Act, a foreigner could be expelled if he had committed

more than a singular or minor breach of the law (Rechtsverstoß).

Having regard to the course of the criminal proceedings against the

applicant and their discontinuation pursuant to S. 153a of the Code of

Criminal Procedure (Strafprozeßordnung), the Administrative Court found

that these conditions were met in his case. The Court confirmed that

the fact that the applicant had eventually not been convicted did not

prevent the Municipality from basing its expulsion decision on these

events. The Court recalled that, pursuant to the relevant legal

provisions, only the breach of the law as such and not a criminal

conviction was the condition for an expulsion. In the Court's view,

the applicant had committed the breach of the law in question. While

the applicant had always pleaded his innocence, the Court considered

that, on the basis of the contents of the files, there were no

reasonable doubts as to his participation in the events in the night

of 26-27 January 1992. The victim had been repeatedly questioned,

including the questioning by a judge, and had charged the applicant

with the offence. There had been no substantial discrepancies in her

statements. Moreover, as a pre-condition for the discontinuation of

the criminal proceedings, the applicant and the co-accused had been

ordered to make important compensation payments to the victim.

Moreover, the Regional Court had discontinued the proceedings pursuant

to S. 153a of the Code of Criminal Procedure which required that the

suspicion continued to exist and that such procedure was not in

conflict with the seriousness of the guilt. The criminal file showed

that the proceedings had been discontinued mainly on account of the

fact that the victim, due to her injuries, could not attend the trial

for a considerable time and that the lengthy proceedings had been

terminated on the basis of a settlement between the offenders and their

victim.

The Administrative Court further considered that no other

reasons, including the circumstance that the applicant's mother and his

sister had meanwhile acquired German nationality, hindered his

expulsion.

On 5 September 1995 the Berlin Administrative Court of Appeal

(Oberverwaltungsgericht) dismissed the applicant's appeal (Beschwerde).

The applicant lodged a constitutional complaint (Verfassungs-

beschwerde) with the Federal Constitutional Court (Bundes-

verfassungsgericht), arguing inter alia that the expulsion order ran

counter to the presumption of innocence.

On 24 October 1995 the Federal Constitutional Court refused to

entertain the applicant's constitutional complaint. The decision was

served on 31 October 1995.

COMPLAINTS

The applicant complains about the expulsion order issued against

him on 31 October 1992. He considers that the Municipality's reasoning

in this decision amounts to a breach of the presumption of innocence,

as guaranteed by Article 6 para. 2 of the Convention.

As regards the condition of the exhaustion of domestic remedies,

the applicant submits that he did not have to await the outcome of

domestic proceedings which do not have suspensive effect before lodging

his complaint about the expulsion order with the Commission. In this

context he states that upon his return to Ukraine he would run a risk

to life or health, as he was being sought by the Russian Public

Prosecutor's Office as a witness in proceedings against high-ranking

officers.

THE LAW

1. The applicant complains about the expulsion order issued by the

Berlin Municipality on 31 October 1992.

2. The Commission recalls that the Contracting States have the

right, as a matter of well-established international law and subject

to their treaty obligations including the provisions of the Convention,

to control the entry, residence and expulsion of aliens. The right to

political asylum is not protected in either the Convention or its

Protocols (cf. Eur. Court HR, Vilvarajah and Others v. the United

Kingdom judgment of 30 October 1991, Series A no. 215, p. 34,

para. 102).

3. The Commission observes that, in his submissions as to the formal

requirements under Article 26 (Art. 26) of the Convention, the

applicant maintains that he would run a risk to his life and health,

if returned to Ukraine.

The Commission has examined this allegation under Article 3

(Art. 3) of the Convention which provides that "[n]o one shall be

subjected to torture or to inhuman or degrading treatment or

punishment".

The Commission recalls that expulsion by a Contracting State of

a foreigner may give rise to an issue under Article 3 (Art. 3) of the

Convention and hence engage the responsibility of that State under the

Convention, where substantial grounds have been shown for believing

that the person concerned would face a real risk of being subjected to

torture or to inhuman or degrading treatment or punishment in the

country to which he is to be expelled (Vilvarajah and Others judgment,

op. cit., para. 103). Since the nature of the Contracting States'

responsibility under Article 3 (Art. 3) in cases of this kind lies in

the act of exposing an individual to the risk of ill-treatment, the

existence of the risk must be assessed primarily with reference to

those facts which were known or ought to have been known to the

Contracting State at the time of the expulsion; a mere possibility of

ill-treatment is not in itself sufficient (Vilvarajah and Others

judgment, op. cit., p. 36, para. 107 and p. 37, para. 111).

The Commission finds that the applicant's allegations do not

relate to his own criminal prosecution, but to his possible questioning

in proceedings against third persons. Considering all circumstances,

the Commission concludes that the applicant has failed to show that,

upon his return to Ukraine, he would be exposed to a real risk of being

subjected to treatment contrary to Article 3 (Art. 3) of the

Convention.

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.

4. The applicant affirms that the expulsion order violates the

principle of the presumption of innocence, as guaranteed by Article 6

para. 2 (Art. 6-2) of the Convention.

This provision reads as follows:

"Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The principle of the presumption of innocence is first of all a

procedural guarantee applying in any kind of criminal procedure;

however, in a wider sense, it protects everybody against being treated

by public officials as being guilty of an offence before this is

established according to law by a competent court (cf. Eur Court HR,

Allenet de Ribemont v. France judgment of 10 February 1995, Series A

no. 308, p. 16, para. 35; see also No. 9295/85, Dec. 6.10.82, D.R. 30,

p. 227; No. 10857/84, Dec. 15.7.86, D.R. 48, p. 106).

In the present case, the criminal charge against the applicant

dated back to 1992. The criminal proceedings were discontinued by the

Berlin Regional Court on 13 June 1992 pursuant to S. 153a of the Code

of Criminal Procedure subject to the condition that he accepted paying

substantial sums of money to the Treasury and to the victim of the

offence.

In the context of the expulsion proceedings, the German

authorities were called on to examine whether the applicant's conduct

in Germany had amounted to a serious violation of the public safety and

order, justifying his expulsion in accordance with the relevant

provisions of the Aliens Act. The Berlin Municipality, as confirmed

by the administrative courts, considered the events which had given

rise to the criminal proceedings against the applicant about two years

earlier. It referred in particular to the fact that the applicant had

accepted the conditions attached to the discontinuation of the

proceedings.

Having accepted to pay a considerable amount of compensation to

the victim as well as to pay a further substantial sum of money to the

Treasury in relation to the charges against him, the applicant cannot

claim to be the victim of a violation of the presumption of innocence,

as guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention, in the

ensuing expulsion proceedings.

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, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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FUKS v. GERMANY

FUKS v. GERMANY

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