Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25168/94

by Aziz AKBAS

against Germany

The European Commission of Human Rights (First Chamber) sitting

in private on 14 September 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

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 28 July 1994 by

Aziz AKBAS against Germany and registered on 16 September 1994 under

file No. 25168/94;

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 facts, as they have been submitted by the applicants, may be

summarised as follows.

The applicant, born in 1969, is a Turkish national who in 1975

joined his mother and sister living in Germany. In June 1993 the

applicant married a Turkish national, born in Turkey in 1972, who had

apparently come to Germany during her childhood. When lodging his

application the applicant was resident in Dortmund. Before the

Commission, he is represented by Mr. C. Petlalski, a lawyer practising

in Dortmund.

On 23 March 1989 the Dortmund District Court (Amtsgericht)

convicted the applicant of theft and sentenced him, as a juvenile, to

six months' imprisonment on probation. On 28 April 1989 the Dortmund

District Court convicted him of theft and, taking into account his

previous conviction, sentenced him, as juvenile, to seven months'

imprisonment on probation. On 26 March 1990 the Dortmund Regional

Court convicted the applicant of dangerous assault and, taking into

account the previous convictions, sentenced him, as a juvenile, to ten

months' imprisonment on probation. On 12 June 1991 the Dortmund

District Court convicted the applicant of driving without a driving

licence and imposed a fine of DM 600.

On 5 February 1992 the Dortmund District Court sentenced the

applicant of drug trafficking and of theft on four counts and sentenced

him, as a juvenile, to one year and ten months' imprisonment. The

execution of the sentence was to be suspended on the condition that the

applicant would undergo a drug therapy. He was released from prison

in April 1992 and participated in a drug therapy which he terminated

in April 1993.

On 15 March 1993 the Hassberge County Administration

(Landratsamt) informed the applicant about its intention to refuse his

request for a prolongation of his residence permit and to request him

to leave the Federal Republic of Germany in view of his conviction of

drug trafficking and theft, and invited him to submit any comments

which he might wish to make. The applicant, represented by counsel,

filed his observations on 1 April 1993.

On 5 May 1993 the Hassberge County Administration refused the

applicant's request for a prolongation of his residence permit and

ordered him to leave Germany. The applicant was requested to leave

within eight weeks after the service of the decision, or in case of a

stay of execution, within eight weeks after a final decision. The

County Administration also ordered his expulsion in case that he should

not leave Germany in time.

In its decision, the County Administration, having noted the

applicant's conviction of drug trafficking, found that the conditions

for an expulsion order under S. 47 para. 2 (2) of the Aliens Act

(Ausländergesetz) were met. According to this provision, aliens are,

as a rule, to be expelled (Regelausweisung), if they were involved in

drug trafficking.

The County Administration also considered whether there were

special circumstances to the effect that the applicant's expulsion

would appear as unreasonable hardship. In this respect the

Administration observed that the applicant had come to Germany at the

age of six and that his expulsion gravely interfered with his personal

situation. However, he had seriously violated the interests of the

Federal Republic of Germany. Referring to the case-law of the Federal

Constitutional Court (Bundesverfassungsgericht), the Administration

recalled that in general drug offences were a particularly serious

reason justifying the expulsion of an alien and outweighed even

important private interests. The applicant could be expected to adapt

to the living situation of his home country Turkey. The fresh start

in his life, namely without drugs, could not justify his further stay

in the Federal Republic, either. As regards his mother's stay in

Germany, the Administration found that the applicant, being 23 years

old, could be expected to life on his own and to entertain the family

relations on the basis of visits in Turkey.

The applicant lodged an administrative appeal (Widerspruch) on

3 June 1993.

On 23 June 1993 the Würzburg Administrative Court (Verwaltungs-

gericht) dismissed the applicant's request for a stay of execution of

the decision of May 1993. The Court found that the applicant's

administrative appeal and envisaged action against the decision

refusing his request for a residence permit and ordering him to leave

Germany did not offer any prospect of success. The Administrative

Court, having regard in particular to his conviction of February 1992,

considered that the decision was in accordance with the relevant

provision of the Aliens Act. The Administrative Court further

confirmed in detail the findings of the Administration that the

applicant had failed to show any special circumstances that he would

require protection against expulsion. In this respect, the Court also

took into account the applicant's submission that he intended to marry

a Turkish national with a residence permit in Germany. The drug

therapy had been in the applicant's own interest and, in view of his

numerous other convictions which did not relate to his drug

consumption, could not be regarded as special circumstance either.

On 23 November 1993 the Bavarian Administrative Court of Appeal

(Verwaltungsgerichtshof) dismissed the applicant's appeal. The Court

confirmed the considerations of the lower instances. Moreover,

according to the Administrative Court of Appeal, there was no

indication of a violation of the applicant's right to respect for his

family life under Article 8 para. 1 of the Convention as his expulsion

was justified under Article 8 para. 2. Taking into account that the

applicant had committed numerous, partly serious, criminal offences,

the termination of his residence in Germany was necessary for the

prevention of disorder and crime. The applicant had committed his

offences during an important lapse of time and not only as juvenile,

but also as adolescent. The applicant had taken a criminal development

and was likely to commit further criminal offences. Moreover, the

applicant had not fully integrated in Germany, in particular he had not

learnt a profession and did not succeed in staying for longer periods

with his various employers. He could thus be expected to see his way

in Turkey. Finally, the applicant's marriage with a Turkish national

six weeks after the decision of 5 May 1993 could not be regarded as

exceptional circumstance on the ground that the spouses were aware that

the applicant's residence in Germany was about to terminate.

On 24 January 1994 the Federal Constitutional Court (Bundesver-

fassungsgericht) refused to admit the applicants' constitutional

complaint (Verfassungsbeschwerde).

On 22 February 1994 the applicant's child was born.

On 3 August 1994 the Diet of the Land Bayern refused the

applicant's petition.

On 23 March 1995 the Dortmund Aliens Office (Ausländeramt)

reminded the applicant that he has to leave Germany, and invited him

to pass at the Office in order to arrange for his departure.

It does not appear whether the applicant has meanwhile left

Germany.

COMPLAINTS

The applicant complains under Article 8 of the Convention about

the decision of May 1993 refusing his request for a residence permit

and ordering him to leave Germany.

THE LAW

The applicant complains that the decision of the Hassberge County

Administration of May 1993 will separate the applicant from his family

in Germany. He relies 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 notes that the applicant lodged an administrative

appeal against the decision of May 1993, and subsequently exhausted

remedies in court proceedings with a view to obtaining a stay of

execution. In these proceedings the administrative court, in a summary

nature, considered the applicant's prospects of success regarding his

appeal in the main proceedings. The applicant did not show that he

also exhausted the remedies available to him in the main proceedings

regarding the decision in question. The question, therefore, arises

whether the applicant exhausted domestic remedies, as required by

Article 26 (Art. 26) of the Convention. However, this question can be

left open as the application is anyway manifestly ill-founded for the

following reasons.

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

reside in a particular country is as such guaranteed by the Convention.

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 H.R., Moustaquim 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 finds that the decision refusing the applicant's

request for a residence permit and ordering him to leave Germany

interferes with his right to respect for family life within the meaning

of Article 8 para. 1 (Art. 8-1). Such interference is in breach of

Article 8, unless 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 the German authorities, when ordering the first applicant

to leave Germany, relied on Section 47 para. 2 (2) 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 ordering the first applicant to leave Germany, the

German authorities considered that the applicant had been convicted of

serious drug offences and that the impugned measure was in the interest

of the prevention of disorder and crime. 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 H.R., Berrehab

judgment of 21 June 1988, Series A no. 138, p. 15, para. 128; Funke

judgment of 25 February 1993, Series A no. 256-A, p. 24, para. 55).

The Commission notes that the administrative authorities had

regard to the applicant's private and family situation. The German

administrative courts also considered in detail the first applicant's

long stay in Germany and the situation of his family, including his

marriage following the expulsion order in May 1993, and weighed his

private and family interests against the public interest in his leaving

the country, based on his conviction for drug offences and his previous

criminal record.

In these circumstances, the Commission considers that there are

relevant and sufficient reasons for the challenged order to leave

Germany. Weighing the applicant's private and family interests, and

the public interests at stake, the Commission finds that the German

authorities did not overstep the margin of appreciation left to them.

Consequently, the interference with the applicants' right to

respect for their private and family life was justified under Article 8

para. 2 (Art. 8-2) 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 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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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AKBAS v. GERMANY

AKBAS v. GERMANY

LEXI