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AS TO THE ADMISSIBILITY OF

Application No. 12131/86

by B.A.

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 2 March 1987, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

F. MARTINEZ

Mr. H. C. KRÜGER 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 29 October 1985

by B.A. against the Federal Republic of Germany and registered on

23 April 1986 under file N° 12131/86;

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 is a Turkish citizen, born in 1948 and at present

detained at Butzbach prison, Federal Republic of Germany.

He has been living in Germany since 1972. In 1973 his wife,

also a Turkish citizen, joined him there. Two of their four children

are living in Turkey, the other two, one of whom is handicapped, are

living in Germany.

In November 1979 the applicant tried to smuggle 9.3 kilograms

of hashish from Germany into Switzerland, but was arrested at the

German/Swiss border. He apparently confessed to this offence and was

subsequently convicted of illegal drug trafficking by the Darmstadt

Regional Court (Landgericht) on 27 July 1982, and sentenced to one

year's imprisonment. The execution of this sentence was, however,

suspended for three years.

The applicant submits that before and also after the trial he

and various family members were threatened for having incriminated an

accomplice.

On 11 December 1982, the applicant was again arrested when a

package containing 400 grams of heroin was handed over to him at the

Munich Central Station. The applicant submits that he did not know

that this package contained heroin.

On 25 November 1983 he was convicted by the Munich Regional

Court I (Landgericht I) and sentenced to eight years' imprisonment for

illegal drug trafficking but this judgment was partly set aside on

5 July 1984 by the Federal Court of Justice (Bundesgerichtshof).

Thereupon, on 14 December 1984, the applicant was convicted by another

chamber of the Munich Regional Court I of complicity in illegal

drug trafficking and sentenced to five and a half years' imprisonment.

An appeal on points of law (Revision) filed on 20 December 1984 was

withdrawn on 14 January 1985. Thereby the judgment became final. On

23 January 1985 the applicant's defence counsel received the reasoned

judgment.

On 6 March 1985 the applicant requested a re-trial. This

request was declared inadmissible by the Augsburg Regional Court on

24 July 1985, the applicant's appeal (sofortige Beschwerde) being of

no avail.

In view of these two convictions, the applicant was expelled

(ausgewiesen) from the Federal Republic of Germany by an order of the

City of Munich of 15 April 1985 which was served on his lawyers on

23 April 1985. Additionally, he was ordered to be deported

(abgeschoben) after having served his sentence. Apparently his

deportation was due to take place in February 1987.

COMPLAINTS

Invoking Article 2 of the Convention, the applicant complains

that his life and that of his family were not protected by the German

authorities when he was threatened after having incriminated his

accomplice.

He further complains under Articles 5 and 6 of his arrest and

conviction by the Munich Regional Court. He claims to be the victim

of a plot. The Courts had not admitted evidence on his behalf and had

not been impartial.

He further submits that Article 6 para. 2 was violated as he

was presumed guilty before having been convicted.

As an effective remedy had been denied him, Article 13 had

been violated.

The applicant further complains about conditions at Butzbach

prison, invoking Article 14.

He also alleges a violation of Article 17 of the Convention.

Finally, he complains about his expulsion and deportation,

which would uproot his family and deprive his handicapped child of the

medical care needed. He invokes Article 14 of the Convention and

Article 4 of Protocol No. 4. The applicant also submits that after

his deportation to Turkey he will be prosecuted there for an offence

in connection with the one of which he had been convicted in the

Federal Republic of Germany and that he might face the death penalty.

PROCEEDINGS BEFORE THE COMMISSION

On 10 November 1986 the applicant requested an indication to

the Government of the Federal Republic of Germany that he should not

be deported until his case was decided by the Commission. However, on

14 November 1986 the President decided not to apply Rule 36 of the

Commission's Rules of Procedure.

On 24 November 1986 the applicant requested the Commission to

reconsider the President's ruling, submitting that after his

deportation to Turkey he would be prosecuted there for an offence in

connection with the one of which he had been convicted in the Federal

Republic of Germany and that he might face the death penalty. Having

considered the applicant's request on 12 December 1986, the Commission

decided not to apply Rule 36 of its Rules of Procedure.

THE LAW

1. The applicant complains that he was arrested and convicted in

violation of Articles 5 and 6 (Art. 5, 6) of the Convention.

It is true that Article 5 (Art. 5) secures to everyone the right to

liberty and security of person and Article 6 (Art. 6) to everyone charged with

a criminal offence the right to a fair and public hearing by an independent and

impartial tribunal established by law.

However, even assuming that the applicant could be considered

as having exhausted the domestic remedies at his disposal in view of

the fact that he had already lodged an appeal on points of law

(Revision) and that therefore a second appeal would not have constituted an

effective remedy, the Commission recalls that according to Article 26 (Art. 26)

of the Convention it "may only deal with the matter .... within a period of six

months from the date on which the final decision was taken". According to its

constant jurisprudence the "final decision" within the meaning of Article 26

(Art. 26) refers solely to the final decision involved in the exhaustion of all

domestic remedies according to the generally recognised rules of international

law. In particular, only a remedy which is "effective and sufficient" can be

considered for this purpose (see e.g. decisions on the admissibility of

Applications No. 918/60, Collection of Decisions 7, pp. 108, 110 and No.

654/59, Yearbook 4, pp. 277, 283).

The Commission finds that, in the present case, the

applicant's petition for a retrial, lodged on 6 March 1985, was not an

effective remedy under the generally recognised rules of international

law. Consequently, the decisions regarding this petition cannot be

taken into consideration in determining the date of the final decision

for the purpose of applying the six months' time-limit laid down in

Article 26 (Art. 26). The final decision regarding the applicant's conviction

and sentence is accordingly the decision of the Munich Regional Court

which was given on 14 December 1984 and which became final on

15 January 1985, whereas the present application was submitted to the

Commission on 29 October 1985, that is more than six months after the

date of this decision. Furthermore, an examination of the case does

not disclose the existence of any special circumstances which might

have interrupted or suspended the running of that period.

It follows that this part of the application has been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

2. The applicant further complains of his expulsion and imminent

deportation to Turkey. He also complains that his life was not protected and

of discriminatory treatment at the prison. He invokes Articles 2 and 14

(Art. 2, 14) of the Convention and Article 4 of Protocol No. 4 (P4-4) .

However, the Commission is not required to decide whether or

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

violation of the Convention and in particular whether the provisions invoked by

the applicant are applicable here. Under Article 26 (Art. 26) of the

Convention, the Commission may only deal with a matter after all domestic

remedies have been exhausted according to the generally recognised rules of

international law.

As regards the applicant's expulsion and imminent deportation,

he has not shown that he has lodged an objection (Widerspruch) against

the order of expulsion and deportation or that he has pursued this

matter any further before the competent administrative courts.

It is true that the applicant also complains that subsequent

to his deportation to Turkey he would have to stand trial there and

face the death penalty. However, even if the order of the City of

Munich of 15 April 1985 to expel and deport the applicant had already

become final when the applicant learned about these developments, he

could, in view of this new fact, have requested the authorities to

re-open these proceedings.

However, the applicant has not shown that he made such a

request or that he has in any other manner requested the competent

German authorities to suspend his deportation. Consequently, he

cannot be considered to have exhausted the domestic remedies at his

disposal.

As regards the applicant's complaints under Article 2 (Art. 2) that his

life was not protected and under Article 14 (Art. 14) of discriminatory

treatment at the prison, the Commission observes that the applicant has not

shown that he raised these complaints before the Federal Constitutional Court

or before any other German courts or authorities.

Therefore he did not exhaust the domestic remedies available

to him under German law in this respect.

Moreover, an examination of either complaint does not disclose

the existence of any special circumstances which might have absolved

the applicant, according to the generally recognised rules of

international law, from exhausting the domestic remedies at his

disposal.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and his

application must in this respect be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

3. The applicant also complains under Article 13 (Art. 13) that he has

been denied an effective remedy.

However, the Commission observes that it was possible for him

to lodge an appeal on points of law (Revision) against his conviction,

subsequently to lodge a constitutional complaint and also to raise an

objection (Widerspruch) against the order of expulsion and deportation

and subsequently to bring proceedings before the administrative

courts. The applicant has not demonstrated that he could not make use

of these remedies.

Therefore, the Commission cannot find any appearance of a

violation of Article 13 (Art. 13) of the Convention. It follows that this

complaint must be regarded as manifestly ill-founded within the

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

4. The applicant has finally alleged a violation of Article 17 (Art. 17)

of the Convention. However, the Commission finds no issue under this

provision. It follows that this part of the application must also be rejected

as being 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.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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B. A. v. THE FEDERAL REPUBLIC OF GERMANY

B. A. v. THE FEDERAL REPUBLIC OF GERMANY