AS TO THE ADMISSIBILITY OF

           Application No. 21212/93

           by C.K. and OTHERS

           against Germany

   The European Commission of Human Rights (First Chamber) sitting

in private on 2 September 1994, the following members being present:

      MM.  A. WEITZEL, President

         C.L. ROZAKIS

         F. ERMACORA

         E. BUSUTTIL

         A.S. GÖZÜBÜYÜK

      Mrs. J. LIDDY

      MM.  M.P. PELLONPÄÄ

        B. MARXER

       B. CONFORTI

       N. BRATZA

       I. BÉKÉS

         E. KONSTANTINOV

      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 6 December 1992

by C.K. and OTHERS against Germany and registered on 21 January 1993 under file No. 21212/93;

   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 first applicant, born in 1956, is a Turkish national who in

1966 joined his family living in Germany . The second applicant, a

German national, born in 1956, has been his spouse since December 1981.

The third to sixth applicants are their children, born in 1976, 1980,

1989 and 1990, respectively. The applicants are residing in Bergkamen .

Before the Commission, they are represented by Mr. H.H. Heidmann , a

lawyer practising in Frankfurt/Main.

   On 23 July 1981 the Dortmund Regional Court ( Landgericht )

convicted the first applicant of drug trafficking, and sentenced him

to ten years' imprisonment. The second applicant was convicted of

having acted as an accessory, and sentenced to two years' imprisonment.

   On 6 October 1982 the Head of the Soest County Administration

( Oberkreisdirektor ) requested the first applicant to leave Germany and

ordered his deportation to Turkey on the day of his release.

   On 20 May 1983 the Arnsberg Regional Governor ( Regierungs -

präsident ) dismissed the first and second applicant's administrative

appeal ( Widerspruch ). The Governor, referring to S. 10 para . 1 (2) of

the Aliens Act ( Ausländergesetz ), confirmed the first applicant's

expulsion. Having regard to his criminal conviction of 23 July 1981

and the seriousness of the offences committed by him, the public

interest in the prevention of disorder and crime outweighed the first

applicant's interests in staying in Germany .

   On 25 January 1984 the Arnsberg Administrative Court ( Verwal -

tungsgericht ) dismissed the first and second applicant's action to have

the decision of 6 October 1982 set aside.

   On 3 June 1986 the Arnsberg Administrative Court of Appeal ( Ober -

verwaltungsgericht ), upon the first and second applicant's appeal

( Berufung ), quashed the deportation order on the ground that the

administrative authorities had not established whether the first

applicant risked a second punishment in respect of the above offences,

and, if so, what treatment in the course of criminal proceedings he

would have to face upon his return to Turkey . However, the Court of

Appeal confirmed the reasoning of the lower instances as regards the

order to leave the territory of Germany . The first applicant's long

stay and his family ties in Germany could not outweigh the public

interests. The considerations relating to a possible further

punishment in Turkey would not affect the order to leave the territory.

   On 10 June 1987 the first applicant, having served two thirds of

his prison sentence, was released on probation, the period of probation

being four years. He took residence with his family.

   On 1 December 1987 the Federal Administrative Court ( Bundesver -

waltungsgericht ), upon the first and second applicant's appeal on

points of law (Revision), quashed the Administrative Court of Appeal's

judgment to the extent that his appeal against the order to leave the

territory of Germany had been dismissed, and referred the case back to

that Court. The Federal Administrative Court considered that the

conditions under S. 10 para . 1 (2) of the Aliens Act to order the first

applicant to leave the territory were met. The administrative

authorities had correctly considered that his stay in Germany since

1966 was not decisive. Furthermore, taking into account that the first

applicant constituted a serious threat to important public interests,

his wish to live in Germany together with his family could not take

priority. However, when exercising their discretion in ordering the

first applicant to leave Germany , the authorities had failed to

investigate into the question whether or not he risked further

punishment, in particular capital punishment or inhuman or degrading

treatment, upon his return to Turkey .

   On 3 July 1991 the Arnsberg Administrative Court of Appeal,

having taken further evidence as regards the risk of a further

punishment in Turkey , dismissed the first and second applicant's appeal

against the order to leave the territory. The Court of Appeal observed

that its examination of the case was, in accordance with the judgment

of the Federal Administrative Court , limited to the question whether

there was such a risk of further punishment which might render the

order to leave the territory unlawful, considerations relating to the

first applicant's family life could not again be taken into account.

   The Court of Appeal concluded that, with regard to the offences

of which he had been convicted in 1981, the first applicant would not

risk that criminal charges be again brought in Turkey , or that he be

again punished or that he would be subjected to inhuman treatment in

the course of criminal investigations. In this respect the Court of

Appeal noted that the Turkish authorities had been informed about the

first applicant's conviction. However, it was unlikely that they would

institute criminal proceedings. The Court of Appeal referred to the

provisions of the Turkish Penal Code relating to the punishment, in

Turkey , for offences committed by a Turkish national abroad, and had

also regard to information provided by the Freiburg Max-Planck-

Institute for Foreign and International Penal Law. Moreover, it was

also improbable that the first applicant would be prosecuted in Turkey

on the suspicion of having, at the time, exported the drugs from

Turkey , which would be regarded as a separate offence committed in

Turkey . Having regard to several cases of such a nature, as stated in

information provided by the Max-Planck Institute and the Foreign

Office, the Court of Appeal noted that prosecution presupposed clear

indications in the German proceedings that the drugs had been exported

from Turkey . Consequently, mere presumptions about the origin of

drugs, such as mentioned in the first applicant's case, did not

suffice. The Court of Appeal did not admit an appeal on points of law.

   On 18 December 1991 the Federal Administrative Court refused the

first and second applicant's request for leave to appeal on points of

law ( Beschwerde gegen die Nichtzulassung der Revision). The

Administrative Court of Justice considered that the Court of Appeal's

establishment of the relevant facts could not be objected to.

   On 10 July 1992 the Federal Constitutional Court ( Bundesver -

fassungsgericht ) refused to admit the applicants' constitutional

complaint ( Verfassungsbeschwerde ) on the ground that it offered no

prospect of success. The Constitutional Court , referring to its

constant case-law, considered in particular that the constitutional

right to respect of marriage and family did not generally exclude that

the foreign spouse of a German national be ordered to leave Germany and

deported. The administrative authorities and courts had taken the

applicants' interests to continue their common life in Germany duly

into account. However, with regard to the serious nature of the

criminal offences committed by the first applicant, namely drug

trafficking resulting in a penalty of ten years' imprisonment, these

private interests were outweighed by the public interest in his leaving

Germany . The decision was served on 27 July 1992.

   On 31 August 1992 the Soest Aliens Office dismissed the first and

second applicant's request to limit the first applicant's expulsion in

time. On 24 November 1992 the Aliens Office again ordered the first

applicant to leave the German territory.

   It does not appear that the first applicant has left Germany .

COMPLAINTS

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

the first applicant's expulsion. They submit that the first applicant

was brought up in Germany , and that his family is living here. After

his departure, his wife and children would have to live on social

welfare. They consider that the first applicant's probational release

was based upon a positive prognosis for his future; his previous

criminal behaviour did, therefore, no longer justify his expulsion.

2.  The applicants further submit that upon his return to Turkey the

first applicant risks to be arrested and convicted a second time for

the same drug offences. He also risks prosecution on the ground that

he had not complied with his duty to do military service. The first

applicant states that he fears to be subjected to inhuman treatment by

the Turkish police.

PROCEEDINGS BEFORE THE COMMISSION

   The application was introduced on 6 December 1992. On

17 December 1992 the applicants requested the Commission to take

interim measures in order to stop the first applicant's expulsion. On

15 January 1993 the Commission decided not to apply Rule 36 of the

Commission's Rules of Procedure. The application was registered on

21 January 1993.

THE LAW

1.  The applicants complain that the order to leave the territory of

Germany , issued against the first applicant by the Head of the Soest

County Administration in October 1982, will separate the first

applicant from his family in Germany . 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 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 order issued against the first

applicant to leave Germany interferes with the applicants' 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 (Art. 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 10 para . 1 (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 first applicant's private and family situation. The

German administrative courts also considered the first applicant's long

stay in Germany and the situation of his family, and weighed his

private and family interests against the public interest in his leaving

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

punishment to ten years' imprisonment. This reasoning was confirmed

by the Federal Constitutional Court .

   In these circumstances, the Commission considers that there are

relevant and sufficient reasons for the challenged order to leave

Germany . Weighing the applicants' 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.

   The Commission further observes that the first applicant

continued to stay in Germany in the course of his appeal proceedings

which were successful as regards the deportation order of October 1982.

Having served two-thirds of his prison sentence, he was released on

probation in June 1987, and there is no indication of any subsequent

criminal proceedings against him. However, the first applicant had the

possibility to request the competent authorities to limit his expulsion

in time. The applicants did not show that they exhausted the

administrative court remedies against the refusal of their request, and

against the renewed order of November 1992 that the first applicant

should leave Germany .

   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 this part of the application is manifestly

ill-founded within the meaning of Article 27 para . 2 (Art. 27-2) of the

Convention.

2.  The applicants further submit that upon his return to Turkey the

first applicant risks prosecution in respect of the same drug offences,

and also on the ground that he had not complied with his duty to

perform military service. The first applicant states that he fears to

be subjected to inhuman treatment by the Turkish police.

   The Commission recalls that the expulsion by a Contracting State

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

hence engage the responsibility of that State under the Convention,

where substantial grounds have been shown for believing that the person

concerned faces a real risk of being subjected to torture or to inhuman

or degrading treatment or punishment in the country to which he is

returned (see Eur. Court H.R. , Vilvarajah and Others judgment of

30 October 1991, Series A no. 215, p. 34, para . 103).

   In the present case, the German Courts carefully investigated

into the first applicant's fears that, upon his return to Turkey he

might be prosecuted a second time for the drug offences of which he had

already been convicted in Germany in 1981, and that he might be ill-

treated in the course of such criminal proceedings. Having regard to

information provided by the Freiburg Max-Planck-Institute for

International and Foreign Penal Law and by the German Foreign Office,

the Administrative Court of Appeal concluded that, in the circumstances

of the first applicant's case, there was no risk of further criminal

charges in Turkey . While the first applicant continues to refer to his

fears of a second set of criminal proceedings in Turkey , he failed to

demonstrate that there is a definite and serious risk of his being

prosecuted, and, if so, of being exposed to treatment contrary to

Article 3 (Art. 3) in the course of such criminal proceedings.

   Moreover, as regards the alleged risk of punishment for failure

to complete his period of military service in Turkey , the Commission

observes that the first applicant failed to raise this argument in the

course of the domestic proceedings. In any event, the Commission

recalls that prosecution for desertion from the army does not in itself

constitute treatment contrary to Article 3 (Art. 3) of the Convention

(cf. No. 12364/86, Dec. 17.10.86, D.R. 50 p. 280).

   The Commission therefore concludes that the applicants'

submissions do not disclose any real risk that the first applicant

would be subjected to ill-treatment upon his return to Turkey . In this

respect, the Commission also notes that the deportation order was

quashed by the Arnsberg Administrative Court of Appeal on 3 June 1986.

   It follows that this part of the application is also 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)            (A. WEITZEL)