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SETALO v. GERMANY

Doc ref: 34919/97 • ECHR ID: 001-3719

Document date: May 21, 1997

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SETALO v. GERMANY

Doc ref: 34919/97 • ECHR ID: 001-3719

Document date: May 21, 1997

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 34919/97

by Arpad SETALO

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

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 8 December 1996

by Arpad Setalo against Germany and registered on 14 February 1997

under file No. 34919/97;

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, a citizen of former Yugoslavia born in 1969, is

a heating mechanic residing at Villingen-Schwenningen in Germany.

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

summarised as follows.

The applicant, who was born in Germany, spent the first 13 years

of his life in Germany. In 1982 he travelled with his parents to

Yugoslavia where he lived for eight years. While in Yugoslavia, the

applicant completed his schooling, trained as a heating mechanic, and

spent one year in military service.

In 1991 the applicant returned to Germany where he found

employment and was granted a tolerance authorisation (Duldung) in view

of the civil war in former Yugoslavia.

In 1992 the applicant filed a request for a residence

authorisation (Aufenthaltserlaubnis) in Germany, claiming that, if he

returned to former Yugoslavia, there was a danger that he would be

obliged to perform military service. The request was refused by the

Villingen-Schweningen municipality on 8 January 1993.

The applicant's subsequent action was dismissed on 19 September

1995 by the Freiburg Administrative Court (Verwaltungsgericht) as the

applicant had entered Germany in 1991 without a visa. The decision

stated that the applicant could file a further appeal with the Baden-

Württemberg Administrative Court (Verwaltungsgerichtshof).

It appears that the applicant has meanwhile been requested to

leave Germany.

COMPLAINTS

The applicant complains, without reference to a particular

Convention provision, of his forced return to former Yugoslavia. He

submits that he has had hardly anything to do with the Serb language;

that the people in former Yugoslavia are completely alien to him; that

he would not find employment there; and that he experiences his

expulsion as discrimination.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 December 1996.

On 2 January 1997 the Acting President decided not to apply

Rule 36 of the Convention.

The application was registered on 14 February 1997.

THE LAW

The applicant complains, without reference to a particular

Convention provision, of his forced return to former Yugoslavia. He

submits that he has had hardly anything to do with the Serb language;

that the people in former Yugoslavia are completely alien to him; that

he would not find employment there; and that he experiences his

expulsion as discrimination.

The Commission has examined these complaints under Articles 3

and 8 (Art. 3, 8) of the Convention.

Article 3 (Art. 3) of the Convention states:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

Article 8 (Art. 8) of the Convention states, insofar as relevant:

"1. Everyone has the right to respect for his private and

family life ...

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

Under Article 26 (Art. 26) of the Convention the Commission may

only deal with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

In the present case, the applicant has not shown that he filed

an appeal against the decision of the Freiburg Administrative Court of

19 September 1995. He has not shown either that in last resort he

obtained, by means of a constitutional complaint, a decision of the

Federal Constitutional Court (Bundesverfassungsgericht) on the

complaints he is now raising before the Commission.

The applicant has not therefore exhausted the remedies available

to him under German law according to Article 26 (Art. 26) of the

Convention, and his application must be rejected under Article 27 para.

3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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