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AS TO THE ADMISSIBILITY OF

Application No. 16846/90

by Z.Y.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 13 July 1990, the following members being present:

MM. S. TRECHSEL, Acting President

J.A. FROWEIN

F. ERMACORA

G. SPERDUTI

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

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 5 July 1990

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

on 11 July 1990 under file No. 16846/90;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Kurd, is a Turkish citizen, born in 1952.

He is represented by Messrs. Hecker and Partners, a law firm in

Munich.

According to his statements and the documents submitted he

has been living in the Federal Republic of Germany since 1971. His

wife is Turkish and they have three children, two of whom were born in

the Federal Republic of Germany. The family is living is Ingolstadt.

On 28 October 1982 the applicant was convicted of drug

trafficking and sentenced to twelve years' imprisonment. Conviction

and sentence became final on 16 March 1983. He served two-thirds of

the sentence and was released on probation on 16 December 1988.

On 15 April 1983 the competent authorities ordered the

applicant's expulsion after his release.

In the appeal proceedings the authorities declared on

23 September 1987 that the applicant would not be expelled as long as

there was a danger that a death penalty, which might be imposed on him

in Turkey for the drug trafficking offences which led to his conviction

in Germany, would in fact be executed.

On 27 June 1988 the competent authorities in Ingolstadt

informed the applicant that the execution of the expulsion order was

no longer stayed as according to available information there was no

longer a risk that he would receive a death penalty in Turkey. The

applicant brought an action before the Administrative Court in Munich

which decided in his favour on 14 December 1988. The Court held that

the risk of an execution of a possible death penalty was, in the sense

of legal guarantees, excluded only if the offence in question was no

longer subject to capital punishment or if the Turkish Government had

made a binding declaration that it would not execute a death penalty

in the applicant's case. As these requirements were not met the

authorities were bound by their declaration of 23 September 1987.

On appeal, this judgment was set aside by the Bavarian Court

of Appeal (Bayerischer Verwaltungsgerichtshof) and the applicant's

action dismissed on 3 October 1989. This Court considered that, in

view of the sentence already imposed on him in the Federal Republic of

Germany, it could not be expected that the applicant have a death

penalty imposed on him in Turkey for the same offences. In any event

the nearly unanimous opinion prevailed in Turkish legal writing that

the death penalty should be abolished and death penalties were in fact

no longer executed since 1984 as followed from a publication of Dr. F.

Yenisey of the University of Istanbul. A report of 20 January 1988 by

the Foreign Office, so the Court added, confirmed this situation.

Since 1960 no offender in drug trafficking had received a death

sentence.

Insofar as the applicant had also alleged that he risked being

tortured in Turkey the Court pointed out that torture was, according

to the new Turkish penal law, a punishable offence. It added that

under the Özal Government criminal proceedings were instituted on the

suspicion that public officials had committed the offence of torture.

Even if according to press reports offences of the kind in question

still risked occurring, this did not mean that such a risk existed in

the applicant's case.

The applicant's complaint against the appellate court's

refusal to grant him leave to appeal on points of law (Revision) was

rejected by the Federal Administrative Court (Bundesverwaltungsgericht)

on 7 February 1990.

The applicant then lodged a constitutional complaint which was

rejected by a group of three judges of the Federal Constitutional

Court (Bundesverfassungsgericht) on 8 June 1990 as offering no

prospects of success. In the Court's view the applicant had not shown

that the reports relied on by the Administrative Court of Appeal were

incorrect. He had submitted no proof for his allegation that he

risked torture in connection with prosecution for a non-political

offence. Insofar as the applicant invoked the right to protection of

family life the group of three judges stated that he failed to exhaust

ordinary remedies as he did not pursue this particular complaint in

the previous proceedings.

The applicant submits a letter dated 12 December 1988

addressed by Amnesty International to his counsel stating that death

sentences may still be imposed in case of conviction for organised

drug trafficking and that it cannot be said whether such a sentence

would receive ratification by the Turkish National Assembly. The

letter refers to an Amnesty International report of 1 June 1987 in

which it is stated that no executions have taken place since 1984 and

that the majority of death sentences in Turkey have been passed by

military courts. The applicant has also submitted press cuttings

according to which Amnesty International investigations proved that

persecution and torture for political reasons still occurred in

Turkey.

COMPLAINTS

The applicant considers that his expulsion would amount to a

violation of Articles 2 para. 1, 3, 6 and 8 of the Convention, Article 1

of Protocol No. 6 and Article 4 of Protocol No. 7. He requests the

Commission to apply Rule 36 of the Commission's Rules of Procedure in

his case.

THE LAW

The applicant complains of his imminent expulsion to Turkey,

where allegedly he risks being sentenced to death and executed and/or

tortured.

1. The Commission has constantly held that the right of an alien

to reside in a particular country is not as such guaranteed by the

Convention. However, expulsion may in exceptional circumstances

involve a violation of the Convention, for example where there is a

serious fear of treatment contrary to Article 3 (Art. 3) of the

Convention (see No. 12102/86, Dec. 9.5.86, D.R. 47 p. 286).

The Commission is not called upon to examine whether the

applicant's submissions concerning the danger of a death sentence

might raise an issue under Article 3 (Art. 3) as according to the

findings of the German courts, uncontested by the applicant, no death

penalty has been pronounced in Turkey in cases concerning drug

trafficking and no death penalties have been executed since 1984 and

in legal writing in Turkey the opinion prevails that the death penalty

should be abolished. There is nothing to show that these findings are

arbitrary and not corroborated by reliable evidence. The German

courts refer to an article written by a member of the University of

Istanbul and to reports of the Foreign Office of the Federal Republic

of Germany.

The letter and report of Amnesty International, referred to by

the applicant, do not constitute any prima facie evidence to the

contrary. While Amnesty International is of the opinion that the

death penalty may still be imposed by Turkish courts in drug

trafficking matters, as it has not yet been abolished, it admits that

since 1984 no executions have occurred and therefore concludes that no

prediction can be made as to whether or not a possible death penalty

would in fact be executed.

Insofar as it is reported by Amnesty International that

torture still occurs, the Commission further notes that these reports

are related to prosecution for political offences.

In these circumstances the Commission cannot find that the

applicant's expulsion would be contrary to Article 3 (Art. 3) of the

Convention on account of a risk of a death sentence or ill-treatment

in Turkey.

In any event the Commission notes that after his return to

Turkey the applicant can bring an application before the Commission

under Article 25 (Art. 25) of the Convention in respect of any

violation of his Convention rights by the Turkish authorities.

It follows that the application must to this extent be

rejected as being manifestly ill-founded within the meaning of

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

2. Insofar as the applicant invokes the right to protection of

family life (Article 8 para. 1) (Art. 8-1), the Commission notes that

the Federal Constitutional Court rejected this complaint for

non-exhaustion of ordinary remedies. It follows that the applicant

cannot be considered as having exhausted domestic remedies and the

application must in this respect be rejected under Articles 26 (Art. 26)

and 27 para. 3 (Art. 27-3) of the Convention.

3. Insofar as the applicant further complains about his expulsion

under Article 6 (Art. 6) of the Convention, Article 1 of Protocol No.

6 (P6-1) and Article 4 of Protocol No. 7 (P7-4), the Commission has

examined these remaining complaints as they have been submitted.

However, after considering these complaints as a whole, the Commission

finds that they do not disclose any appearance of a violation of the

provisions invoked by the applicant.

The application is to this extent again manifestly ill-founded

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (S. TRECHSEL)

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Z.Y. v. THE FEDERAL REPUBLIC OF GERMANY

Z.Y. v. THE FEDERAL REPUBLIC OF GERMANY

LEXI