Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19544/92

by Mustafa Fikret KÜÇÜK

against Germany

The European Commission of Human Rights (Second Chamber) sitting

in private on 12 October 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 12 December 1990

by Mustafa Fikret KÜÇÜK against Germany and registered on

26 February 1992 under file No. 19544/92;

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 is a Turkish citizen, born in 1940 and residing in

Istanbul (Turkey).

In a first application to the Commission (No. 16770/90) the

applicant complained of the judgment of the Kiel Regional Court

(Landgericht) of 11 September 1987 by which he was convicted of rape

and sexual harassment and sentenced to five years' and nine months'

imprisonment. On 10 January 1991 the Commission declared this

application inadmissible for non-exhaustion of domestic remedies.

The facts of the present application, as submitted by the

applicant, may be summarised as follows.

On 18 September 1990 and 31 May 1991 the applicant requested to

the re-opening of the criminal proceedings under which he had been

convicted in 1987. This request was dismissed by the Lübeck Regional

Court on 10 September 1991 on the ground that the evidence submitted

by the applicant was not sufficient to set aside his conviction.

The applicant's appeal against this decision was unsuccessful.

A constitutional complaint lodged by the applicant was declared

inadmissible by the Federal Constitutional Court (Bundesverfassungs-

gericht) on 13 March 1992.

In the meanwhile, on 8 March 1990, the Neumünster administrative

authorities had refused to grant the applicant a residence permit and

ordered the applicant to be expelled from Germany after having served

his sentence. The applicant appealed (Widerspruch) against this

decision. He stressed that he was innocent and that his deportation

would separate him from his wife and four minor children who lawfully

resided in Germany.

On 3 May 1991 the administrative authorities dismissed the

applicant's appeal.

On 5 June 1991 the applicant appealed to the Schleswig-Holstein

Administrative Court (Verwaltungsgericht). The appeal was dismissed on

4 December 1991 as being ill-founded.

The Administrative Court noted in particular that in 1975 the

applicant had been convicted of rape by the Neumünster District Court

(Amtsgericht) and sentenced to one year's imprisonment on probation and

that in 1987 he had been convicted by the Kiel Regional Court of rape

and sexual harassment and sentenced to five years' and nine months'

imprisonment. According to the Administrative Court, having been

sentenced to a minimum of five years' imprisonment, the applicant

satisfied the conditions laid down in Section 47, Subsection 1, No. 1

of the Aliens Act and had to be expelled from Germany in accordance

with Section 49 of the Aliens Act. Having regard to the serious nature

of the offences, the applicant's deportation was necessary in the

interest of public safety. His family links did not outweigh the public

interest in imposing his deportation. Furthermore, his family could be

expected to follow him to Turkey in order to maintain family contacts

with him.

On 5 May 1992 the Federal Constitutional Court, sitting as a

panel of three judges, dismissed the applicant's constitutional appeal

against the above decisions as being inadmissible. The Court held that

the applicant had failed to sufficiently substantiate his complaint.

The applicant's further appeals against the decision to deport

him were unsuccessful.

COMPLAINTS

The applicant complains that his case has not been dealt with

fairly by the criminal courts and that he was convicted and sentenced

without having committed any criminal offence. He requests compensation

in an amount of 500 000 DM.

The applicant also complains that his deportation to Turkey was

in breach of his right to respect for family life.

The applicant does not invoke any particular provision of the

Convention.

THE LAW

1. The applicant who claims to be innocent complains of the judgment

given by the Kiel Regional Court (Landgericht) on 11 September 1987 by

which he was convicted of rape and sexual harassment and sentenced to

five years' and nine months' imprisonment.

However, Article 27 para. 1 (b) (Art. 27-1-b) of the Convention

provides that the Commission shall not deal with any application

submitted under Article 25 (Art. 25) which is substantially the same

as a matter which it has already examined and if it contains no new

information. In the present case, the Commission recalls that on

10 January 1991 it declared inadmissible the applicant's Application

No. 16770/90. After examining the present complaint, the Commission

finds that it is essentially the same as the above application and that

it contains no relevant new information. It follows that this part of

the application must be rejected pursuant to Article 27 para. 1 (b)

(Art. 27-1-b) of the Convention.

2. The applicant seems also to complain that he was refused a

retrial.

However, the Commission recalls that this is not a right which

as such is included among the rights and freedoms guaranteed by the

Convention (cf. No. 14739/89, Dec. 9.5.89, D.R. 60 pp. 296, 301).

Furthermore the proceedings concerning applications for retrial do not

involve the determination of a civil right or a criminal charge within

the meaning of Article 6 (Art. 6) of the Convention (cf. No. 7761/77,

Dec. 8.5.78, D.R. 14 pp. 171, 173).

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

3. The applicant finally complains that his deportation to Turkey

violated his right to respect for his family life. The Commission has

examined this complaint under Article 8 (Art. 8) of the Convention

which states, insofar as relevant:

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

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) of

the Convention (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, even assuming that the applicant has exhausted

domestic remedies in accordance with Article 26 (Art. 26) of the

Convention, finds that the applicant's complaints do not disclose any

appearance of a violation of Article 8 (Art. 8) for the following

reasons:

It is true that the applicant's wife and children have been

permitted to establish domicile in Germany where they lawfully reside.

Thus, the applicant's expulsion from Germany interfered with his right

to respect for family life within the meaning of Article 8 para. 1

(Art. 8-1) of the Convention. However, this interference is justified

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

The Commission observes that the German authorities, when

deciding to deport the applicant from Germany, relied on Section 47,

Subsection 1, No. 1 and Section 49 of the Aliens Act. The interference

was therefore "in accordance with the law" within the meaning of

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

Moreover, the Commission observes that the applicant was

convicted of serious criminal offences, namely of rape and of sexual

harassment. The Commission notes in particular that the German courts

considered that the applicant's presence in Germany would constitute

a danger for the public safety. After having considered all

circumstances, they found his family links did not outweigh the public

interest in imposing his deportation. Taking into account the margin

of appreciation which is left to Contracting States in such

circumstances (see Eur. Court H.R., Berrehab judgment of 21 June 1988,

Series A no. 138, p. 15, para. 28), the Commission does not find that

the German authorities achieved an improper balance between the

interests involved.

The Commission therefore considers that the interference with the

applicant's right to respect for family life was justified under this

provision in that it could reasonably be considered "necessary in a

democratic society ... for the prevention of disorder or crime".

The application is therefore manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to President

the Second Chamber of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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KÜÇÜK v. GERMANY

KÜÇÜK v. GERMANY

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