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Y. v. GERMANY

Doc ref: 17377/90 • ECHR ID: 001-777

Document date: November 9, 1990

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Cited paragraphs: 0
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Outbound citations: 1

Y. v. GERMANY

Doc ref: 17377/90 • ECHR ID: 001-777

Document date: November 9, 1990

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 17377/90

by Y.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 9 November 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. J. RAYMOND, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 October 1990

by Y. against the Federal Republic of Germany and registered on

30 October 1990 under file No. 17377/90;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

The applicant, born in 1952, is a Turkish national and

resident in Nürnberg. Before the Commission he is represented by

Mr. K. H. Becker and Partners, lawyers practising in Nürnberg.

The applicant, who belongs to the Kurd minority, entered the

Federal Republic of Germany in 1980. His marriage to a German

national in 1981 was dissolved by divorce in 1986.

On 30 April 1987 the Federal Office for Refugees (Bundesamt

für die Anerkennung ausländischer Flüchtlinge) dismissed the

applicant's request for political asylum. The Office found in

particular that the applicant had failed to show that upon his return

to Turkey he would be persecuted as a former member of a political

organisation. The applicant withdrew his action before the Ansbach

Administrative Court (Verwaltungsgericht) in September 1988.

In August 1987 the Nürnberg Registration Office

(Einwohnermelde- und Paßamt), having regard to the applicant's

various criminal convictions in the Federal Republic of Germany,

ordered him to leave the Federal Republic of Germany. The applicant

withdrew his appeal in January 1989.

In August 1988 the applicant again married a German national.

In March 1989 the Federal Office for Refugees dismissed the

applicant's second request for political asylum (Asylfolgeantrag).

On 14 June 1989 the Nürnberg Registration Office again ordered

the applicant to leave the territory of the Federal Republic of

Germany. The Office found that the applicant had no residence permit

and that there were no reasons preventing his deportation.

On 17 October 1989 the Ansbach Administrative Court dismissed

the applicant's complaints concerning the decisions of the Federal

Office for Refugees of March 1989 and the Nürnberg Registration Office

of June 1989, respectively. The Court considered that the applicant

had not substantiated any reasons for political persecution in

Turkey. In particular, the criminal proceedings against him in

Turkey - his conviction in 1987 for activities as a member of the

organisation Dev-Sol and sentence to five years' imprisonment - were

only of a criminal, not a political nature. In these and the

following court proceedings, the applicant was represented by

Mr. Becker and Partners.

On 13 March 1990 the Bavarian Administrative Court of

Appeal (Verwaltungsgerichtshof) dismissed the applicant's appeal

(Beschwerde).

On 19 June 1990 the Federal Constitutional Court (Bundes-

verfassungsgericht) declared the applicant's constitutional complaint

(Verfassungsbeschwerde) inadmissible on the ground that he had failed

to produce the relevant court decisions and other documents in time.

Before the Commission the applicant complains that his

deportation to Turkey constitutes inhuman treatment on the ground

that he would have to serve a prison sentence of five years imposed

with regard to his political activities. He would risk torture and

discrimination as a member of the Kurd minority. He invokes Article 3

of the Convention.

However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 of the Convention, it

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

exhausted according to the generally recognised rules of international

law.

According to the Commission's constant jurisprudence there is

no exhaustion of domestic remedies where a domestic appeal is not

admitted because of a procedural mistake (see No. 6878/75, Dec.

6.10.76, D.R. 6 p. 79). The applicant's constitutional complaint was

declared inadmissible by the Federal Constitutional Court on the

ground that he had failed to produce the relevant court decisions in

due time. He has not, therefore, exhausted the domestic remedies

available to him under German law.

It follows that the application must be rejected under Article

27 para. 3 of the Convention.

In any event the Commission notes that after his return to

Turkey the applicant can bring an application before the Commission

under Article 25 of the Convention in respect of any violation of his

Convention rights by the Turkish authorities.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C. A. NØRGAARD)

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