Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34556/97

by N.B. and F.B.

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 9 April 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

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 13 January 1997

by N.B. and F.B. against Germany and registered on 21 January 1997

under file No. 34556/97;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Decides as follows:

THE FACTS

The first applicant is a Turkish citizen, born in 1971, and

currently living in Turkey. The second applicant, a Turkish citizen,

born 1970, is the wife of the first applicant and resides in Alpirsbach

(Germany).

Before the Commission the applicants are represented by

Mr. Rainer Schmid, a lawyer practising in Nagold.

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

summarised as follows.

The first applicant's parents arrived in Germany in 1968. The

applicant has five brothers and sisters. His elder brother lives in

Turkey. The applicant attended school in different places, at last in

Oberndorf. In 1988 he started to work in a factory in Alpirsbach-

Römmlingsdorf.

On 8 July 1988 he married the second applicant in Turkey. On

27 April 1989 he was issued a residence permit. In February 1990, the

second applicant followed him to Germany. A daughter was born in

November 1990 and a son in July 1991.

On 18 August 1994 the first applicant was convicted by the

Freudenstadt District Court (Amtsgericht) of rape and sentenced to two

years' and four months imprisonment. The District Court found the

applicant guilty of having raped a 19 year old girl in the night of

2 February 1994 in her car by using considerable violence. He had put

his hands around her neck, his thumbs on her larynx and threatened to

kill her if she refused to comply with his wishes. According to the

District Court he had not shown any regrets at the trial. He alleged

that the girl had previously had sexual intercourse with one of his

brothers and had agreed to have sexual intercourse with him as well.

The District Court described the first applicant as a "macho type man

who by reason of his origin and education apparently had difficulties

to understand that a woman would not want to have sexual intercourse

with him".

The first applicant's appeal against this judgment was dismissed

by the Rottweil Regional Court (Landgericht) on 24 February 1995. An

appeal on points of law and a petition for pardon were unsuccessful.

On 13 November 1995 the first applicant began to serve his

sentence.

On 20 December 1995 the Karlsruhe Regional Government

(Regierungspräsidium) ordered the first applicant's expulsion from

Germany and decided that the order to be enforced with immediate

effect. The Regional Government noted that the first applicant had been

convicted of a criminal offence and sentenced to more than two years'

imprisonment. Reference was made in particular to Section 47

para. 2 (1) of the Aliens Act (Ausländergesetz). According to this

provision, a foreigner shall be expelled from Germany if, by a final

judgment, he has been sentenced to a minimum of two years' imprisonment

and his sentence has not been suspended on remand. The Regional

Government recalled that the first applicant had an unlimited residence

permit and therefore enjoyed particular protection against expulsion.

However, pursuant to Section 48 para. 1 of the Aliens Act, a foreigner

could be expelled for serious reasons of public security and order. A

conviction of rape constituted such a reason. By ordering a the first

applicant's expulsion, the authorities had correctly exercised their

discretionary powers and had observed the principle of proportionality.

In the present case the first applicant's conduct and in particular the

absence of any regrets showed that he had no consideration for the

dignity of women. Special and general notions of prevention, namely the

risk that he might commit further offences, and to deterring other

aliens from committing similar offences, justified the first

applicant's expulsion. The Regional Government took account of the

applicant's personal situation, in particular that his wife and his two

children lived in Germany, that he had an employment and a residence

permit. However, the first applicant's youth, the rather recent arrival

of his Turkish wife in Germany and the young age of his children were

circumstances showing that the applicants would face no major problems

if they returned with their children to Turkey.

The first applicant lodged an administrative objection

(Widerspruch) against the expulsion order. These proceedings are still

pending.

On 16 January 1996 the Regional Government indicated as

additional reason for the immediate execution of the expulsion order

that the public interest prevailed over the private interests of the

first applicant to stay in Germany until the final decision was given

in this matter.

The first applicant's request to suspend, pending the outcome of

the appeal proceedings, the execution of the expulsion order was

dismissed by the Karlsruhe Administrative Court (Verwaltungsgericht)

on 26 August 1996. The Court found that the expulsion order had been

issued in accordance with the relevant provisions of the Aliens' Act.

The Regional Government had duly exercised their discretion and

correctly concluded that the public interest in the prevention of

disorder and crime outweighed the first applicant's interests in

staying in Germany. The Administrative Court stated in particular that

the applicant had used physical force against his victim when

committing the offence and had threatened to kill her. The first

applicant's readiness to use force and his disdain for the physical

integrity of others justified the fear that he might commit further

offences if staying in Germany. Even if, according to the Psychological

Service of the Rottenburg prison, there was no indication that the

first applicant might commit further sexual or other offences, the

Court considered that the circumstances of the committal of the offence

did not sufficiently exclude the risk of repetition. Finally, the

Administrative Court found that the interference with the first

applicant's respect for his family life was in any event justified

under para. 2 of Article 8 of the Convention.

In a letter addressed on 14 October 1996 to the applicants'

lawyer, the Psychological Service of the Rottenburg prison confirmed

that the there was no particular risk of the applicant committing

further sexual offences. However, they could not completely exclude

such a possibility. According to them, solely a further expert opinion

could give more indications on this subject.

The first applicant's appeal (Beschwerde) against the decision

of the Karlsruhe Administrative Court of 26 August 1996 was dismissed

by the Baden-Württemberg Administrative Court of Appeal

(Verwaltungsgerichtshof) on 12 November 1996.

On 7 January 1997 the Federal Constitutional Court

(Bundesverfassungsgericht), sitting as a panel of three judges, decided

not to admit the applicant's constitutional complaints for a decision.

In a letter of 17 January 1997 the Rottenburg prison authorities

stated that the applicant's conduct and work in prison were exemplary

and that he was authorised to move freely within the prison. From the

beginning of his detention his wife and children were paying him three

monthly visits. The prison authorities further stated that the first

applicant deeply regretted having committed the offence and that he was

resolved to undertake steps with a view to improving his personality.

If the first applicant were not subject to measures relating to his

status of a foreigner, he could have been granted provisional leave

from prison.

At the end of January or the beginning of February 1997 the first

applicant was expelled to Turkey.

COMPLAINTS

1. The applicants complain under Article 8 of the Convention that

the first applicant's expulsion to Turkey violates their right to

respect for family life.

They submit that the refusal to suspend the execution of the

expulsion order was not proportionate to the aim pursued. The first

applicant submits that he had been brought up and educated entirely in

Germany, that he is married to a Turkish woman living with their two

children in Germany and that he has a permanent employment in this

country. He has solely spent his holidays in Turkey where he has no

other relatives than an uncle.

The applicants stress that the first applicant's expulsion would

put an end to their family life and that they would suffer an

irreparable damage if the first applicant were to be separated from his

family for several years. The second applicant and the children are

seriously affected by the first applicant's expulsion. The children are

born in Germany and will attend school this year.

According to the applicants, the German authorities have not

correctly exercised their discretionary powers when affirming that

there was a risk of the first applicant committing further offences.

In this connection the applicants refer to the opinion given by the

Psychological Service of the Rottenburg prison on the favourable

prognosis of the first applicant's future conduct. They also refer to

the fact that the first applicant has already served most of the

sentence. His previous criminal behaviour did, therefore no longer

justify his expulsion. They also complain that the Administrative Court

of Appeal has decided without ordering an additional expert opinion.

2. The applicants further submit that the violation of Article 8 of

the Convention constitutes also an inhuman treatment contrary to

Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 January 1997 and registered

on 21 January 1997.

On 24 January 1997 the Commission decided not to apply Rule 36

of the Commission Rule's of Procedure.

THE LAW

1. The applicants complain of the refusal of the German authorities

to grant suspensive effect to the expulsion order given against the

first applicant pending the outcome of his appeal against the decision

to expel him from Germany. They allege that this immediate execution

of the expulsion decision and the first applicant's expulsion to Turkey

have the effect of breaking up there family life. They rely on

Article 8 (Art. 8) of the Convention which states, so far 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 ... for the prevention of disorder or crime, ..."

The Commission first observes that the question in issue concerns

the refusal to suspend the execution of the expulsion order, but not

the expulsion order as such, in respect of which domestic remedies are

not yet exhausted.

The question before the Commission is therefore whether the

refusal of granting the expulsion order suspensive effect, pending the

applicant's appeal, reveals an appearance of a violation of the

Convention.

The Commission reiterates that no right of an alien to enter or

to reside in a particular country is as such guaranteed by the

Convention. Contracting States have the right, as a matter of well

established international law and subject to their treaty obligations

including the Convention, to control the entry, residence and expulsion

of aliens (see Eur. Court HR, Ahmed v. Austria judgment of 17 December

1996, to be published in Reports of Judgments and Decisions 1996,

para. 38).

However, 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) (see Eur. Court HR, Moustaquim v. Belgium judgment of 18

February 1991, Series A no. 193, p. 18, para. 36; No. 9203/80, Dec.

5.5.81, D.R. 24, p. 239).

The Commission considers that the execution of the impugned

measure amounted to an interference with the applicants' exercise of

their right to respect for their family life within the meaning of

Article 8 para. 1 (Art. 8-1) of the Convention. However, such

interference is not in breach of Article 8 (Art. 8), if it is justified

under Article 8 para. 2 (Art. 8-2) of the Convention.

As regards the lawfulness of the interference, the Commission

observes that, when refusing to grant the expulsion order suspensive

effect, the German authorities relied on Section 47 para. 2 (1) and 48

para. 1 of the Aliens Act. The interference was therefore "in

accordance with the law" within the meaning of Article 8 para. 2

(Art. 8-2).

Moreover, when refusing to grant the expulsion order suspensive

effect, the German authorities considered that the applicant had been

convicted of a serious offence and that immediate execution of the

expulsion order was necessary for the prevention of disorder and crime.

The Commission finds that this is a legitimate aim mentioned in

Article 8 para. 2 (Art. 8-2).

As regards the question whether the interference complained of

was "necessary in a democratic society", the Commission recalls that

the Contracting States enjoy a certain margin of appreciation in

assessing whether such a need for an interference exists, but it goes

hand in hand with European supervision (see, Eur. Court HR, Berrehab

v. the Netherlands judgment of 21 June 1988, Series A no. 138, p. 15,

para. 128; Funke v. France judgment of 25 February 1993, Series A

no. 256-A, p. 24, para. 55). The decisions given by the domestic

authorities in the field must be justified by a pressing social need

and, in particular, proportionate to the legitimate aim pursued (see,

e.g., Eur. Court HR, Nasri v. France judgment of 13 July 1995, Series A

no. 320-B, p. 25, para. 41).

The Commission notes that the administrative authorities had

regard to the applicant's private and family situation and in

particular to the fact that the first applicant was born in Germany and

to the situation of his family. They weighed his private and family

interests against the public interest in his immediate leaving the

country, based on his conviction for rape and on his sentence to more

than two years' imprisonment. This reasoning was confirmed by the

Baden-Württemberg Administrative Court of Appeal and not contradicted

by the Federal Constitutional Court.

In these circumstances, the Commission considers that the reasons

given by the German authorities are relevant and sufficient for the

refusal to grant the expulsion order suspensive effect and to expel the

first applicant before the termination of the proceedings concerning

the challenged order to leave Germany. The Commission further notes

that it is not unreasonable to expect the first applicant's Turkish

wife and young children to follow him to Turkey. The applicants have

not shown that the provisional execution of the expulsion order would

cause them irreparable or disproportionate damage. Rather the first

applicant will be free to return to Germany if he eventually succeeds

in his administrative court action. The Commission recalls in this

respect that Article 8 (Art. 8) of the Convention does not guarantee

a right to choose the most suitable place to develop family life (see

Eur. Court HR, Ahmut v. the Netherlands judgment of 28 November 1996,

to be published in Reports of Judgments and Decisions 1996, para. 71).

Weighing the applicants' private and family interests, and the public

interests at stake and taking into account the margin of appreciation

which is left to Contracting States in such circumstances, the

Commission does not find that the German authorities achieved an

improper balance between the interests involved.

Consequently, the interference with the applicants' right

guaranteed by Article 8 (Art. 8-2) was justified under para. 2 of that

Article in that it can reasonably be considered "necessary in a

democratic society ... for the prevention of disorder and crime." Thus

there is no appearance of a violation of Article 8 (Art. 8) of the

Convention.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicants maintain that the first applicant's expulsion from

Germany and the consequences for their family life has to be considered

as inhuman treatment contrary to Article 3 (Art. 3) of the Convention,

which provides:

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

degrading treatment or punishment."

The Commission, having found that the decisions complained of

were justified under Article 8 para. 2 (Art. 8-2) of the Convention

considers that the same decisions cannot be regarded as constituting

inhuman or degrading treatment under Article 3 (Art. 3) of the

Convention (see No. 9427/78, Hendriks v. the Netherlands, Comm. Report

8.3.82, para. 130, D.R. 29 pp. 5, 20).

No risk of the first applicant being subject to torture or

inhuman treatment in Turkey has been alleged or made out.

It follows that this part of the application must also be

rejected as being 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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N.B. AND F.B. v. GERMANY

N.B. AND F.B. v. GERMANY

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