Lexploria

The European Commission of Human Rights sitting in private on

10 December 1986, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

F. ERMACORA

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Mr. F. MARTINEZ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 October 1986 by F.

Y.H. against the Federal Republic of Germany and registered on 14

October 1986 under file No. 12461/86;

Having regard to

- the report provided for in Rule 40 of the Rules of Procedure

of the Commission;

- the Commission's decision of 17 October 1986 to request

information from the applicant pursuant to Rule 42 para. 2 (a) of its

Rules of Procedure;

- the information provided by the applicant on 29 October 1986;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as they have been submitted by the applicant,

may be summarised as follows:

The applicant, a Lebanese citizen born in 1960, is currently residing

in Berlin. Before the Commission she is represented by

Mrs. H. Bischoff-Pflanz, chairperson of the Alternative List Fraction

in the Berlin Diet (Abgeordnetenhaus) and Mrs. E. Reese, a lawyer

practising in Berlin.

The applicant is married to a Palestinian residing in Berlin who is

allegedly no longer permitted to return either to the Lebanon or to

Egypt. The husband's request for asylum is currently pending before

the Berlin authorities.

The applicant's first request for asylum in Germany was rejected on

24 February 1983 whereupon on 28 March 1983 she was deported to the

Lebanon.

On 14 April 1983 the applicant returned to Berlin and on 15 April 1983

she requested political asylum. She submitted that if she returned to

the Lebanon she would disappear or be killed in view of the fact that

she and her husband had worked for the Al-Fatah and that she was

married to a Palestinian. This was sufficient for the Lebanese

Government and the Phalange to threaten her life. In this respect she

pointed out that upon her return to Beirut on 28 March 1983 she had

been maltreated at the airport by a military person and later

interrogated for two hours by five or six persons about her husband.

This stopped only when her brother and one K.E.-R., a companion of the

Lebanese Parliamentary President, fetched her. On 1 April 1983 she

was again interrogated and then locked up for two hours. On

14 April 1983 K.E.-R. accompanied her to the Beirut airport when she

left the country.

On 12 February 1985 the Federal Office for the Recognition of Foreign

Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge)

rejected the applicant's request for asylum. It found that

disturbances in the Lebanon resembling civil wars and the resulting

dangers for body and life could not be excluded for the future.

However, this exceptional state did not constitute a ground for

asylum. Moreover, the applicant had been able to leave the Lebanon in

April 1983 without problems. Assuming the difficulties to be true

which she had encountered on 28 March 1983 and 1 April 1983, this

could be explained as measures of the security police relating to her

husband. Nothing indicated that the applicant herself would be

persecuted. Moreover, an indication that the applicant's submissions

lacked a real basis could be seen in the fact that she had mentioned

her activities of 1980 and 1981 for Al-Fatah only at a hearing in 1984

and not while the first asylum proceedings were pending.

With reference to this decision, the Berlin Police President

(Polizeipräsident) requested on 17 April 1985 the applicant to leave

the country before 3 August 1985 (Ausreiseaufforderung). The

President added that it could be expected from the applicant to await

in the Lebanon the outcome of the asylum proceedings instituted by her

husband.

On 21 April 1986 the Police President informed the applicant that he

intended to invite her to leave the country and that the prospective

order would be based on the fact that she had committed criminal

offences. In particular, by decision of 9 June 1983 she had been

sentenced for theft of goods of insignificant value (Diebstahl

geringwertiger Sachen) by the Tiergarten Juvenile Court

(Jugendgericht) to a fine of 15 rates per diem of 4.- DM. On

22 December 1984 the Tiergarten District Court (Amtsgericht), in

summary proceedings (Strafbefehlsverfahren), fined the applicant on

the ground of theft to 30 rates per diem of 20.- DM. On 24 January

1985, the Tiergarten Juvenile Court sentenced the applicant to three

months' imprisonment on probation on the grounds of jointly committed

theft (gemeinschaft- licher Diebstahl).

On 17 May 1985 the applicant filed an objection (Widerspruch) against

the order of 17 April 1985. Therein she postulated a right to remain

in Germany on the basis of Article 6 of the Basic Law (Grundgesetz)

which protects marriage, family and children born out of wedlock. The

fact that she was married to a Palestinian and had worked for the

Al-Fatah would prevent her from creating for herself a basis of

existence in the Lebanon.

On 26 May 1986 the applicant also replied to the order of

21 April 1986, claiming in particular that the deportation was not

justified in view of Article 6 of the Basic Law.

The Berlin Police President informed the applicant on 5 June 1986,

with reference to the criminal offences which she had committed, that

she had to leave the Federal Republic of Germany within one month.

Thereupon, on 4 July 1986, the applicant filed an objection against

the order of 5 June 1986, claiming that it had not been sufficiently

considered under Article 6 of the Basic Law that, if the applicant was

expelled, the separation from her husband would in fact be of a

permanent nature.

On 10 July 1986 she applied for suspensive effect to be given to the

objection of 4 July 1986. In her statement, the applicant pointed out

that her presence in Germany had been tolerated for nearly a year

after the convictions. Moreover, her deportation would imply a

permanent separation from her husband contrary to Article 6 of the

Basic Law.

On 28 July 1986 the Berlin Administrative Court (Verwaltungs- gericht)

rejected the applicant's request to grant suspensive effect. It found,

inter alia, that the asylum proceedings had been terminated with legal

force on 12 February 1985 and that, on 5 June 1986, the Police

President had not incorrectly referred to the applicant's three

criminal convictions. The applicant could also not claim permanent

residence in Germany on the basis of Article 6 of the Basic Law. It

could be expected from the applicant to await in the Lebanon the

outcome of the husband's asylum proceedings. Only if his request was

rejected would the question have to be examined whether, as the

applicant alleged, it was impossible for the spouses to find a country

were they could live together. Finally, the Court also saw no

impediment to the applicant's expulsion in one of the grounds

mentioned in S. 14 para. 1 of the Aliens' Act (Ausländergesetz). This

provision prohibits the expulsion of a foreigner to a country where

his life or his freedom is threatened, inter alia, on account of his

belonging to a particular social group.

In her subsequent appeal (Beschwerde) the applicant referred first to

the fact that her passport was no longer valid for which reason the

German Red Cross, which organised the return flights to the Lebanon,

would no longer give her a 'plane ticket. In addition, she pointed

out in respect of Article 6 of the Basic Law that it was already now

clear that her husband, who was a stateless person, would not be able

to return to the Lebanon, and that the Federal Republic of Germany was

the only country in which the spouses could live together.

The applicant's appeal was rejected by the Administrative Court of

Appeal (Oberverwaltungsgericht) on 29 August 1986. The Court regarded

it as irrelevant whether or not the applicant could obtain a 'plane

ticket. The issue under Article 6 of the Basic Law would only arise

after the asylum proceedings concerning the husband had been

concluded.

COMPLAINTS

1. The applicant has complained under Article 3 (art. 3) of the

Convention of her imminent expulsion to the Lebanon. She submits that

as a Shiite she would be regarded by the Amal militia as a traitor

since she has married a Sunnite Palestinian. As the wife of a

Palestinian, she would be open to attack by all the competing militia,

even if she attempted to stay in a Palestinian camp. These attacks

would constitute inhuman treatment and might even threaten the

applicant's life.

2. The applicant has in a subsequent letter to the Commission

also alleged that her expulsion to the Lebanon would permanently

separate her from her husband, who is not entitled to reside in the

Lebanon, and thus infringe her right to respect for family life within

the meaning of Article 8 (art. 8) of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was lodged on 8 October 1986 and registered on

14 October 1986.

On 17 October 1986 the Commission decided in accordance with Rule 42

para. 2 (a) of the Commission's Rules of Procedure to invite the

applicant to submit further information on the application.

The information was provided by the applicant on 29 October 1986.

THE LAW

1. The applicant complains under Article 3 (art. 3) of the

Convention of her imminent expulsion to the Lebanon. She submits

that, as the wife of a Palestinian, she would be open to attacks by

competing militia which would constitute inhuman treatment and might

threaten her life.

Article 3 (art. 3) of the Convention forbids, inter alia, inhuman or

degrading treatment and the Commission has consistently held that the

expulsion or extradition of a person could, in certain exceptional

circumstances, involve a violation of Article 3 (art. 3) where there

is serious reason to believe that the person to be expelled or

extradited will be subjected to treatment prohibited by the Article in

the receiving country (see No. 8581/79, Dec. 6.3.80, D.R. 29 p. 48).

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 (art. 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.

The Commission notes at the outset that the applicant has not shown

that she objected to the decision which refused her request for

political asylum on 12 February 1985, or that she eventually raised an

action in this respect before the administrative courts. However, the

Commission recalls its constant case-law according to which, if an

individual complains that his deportation, in execution of an

expulsion measure, exposes him to a serious danger, appeals without

suspensive effect cannot be considered effective. For this reason,

remedies in connection with the asylum proceedings cannot be regarded

as effective in cases such as the present one (see No. 7216/75,

Dec. 20.5.76, D.R. 5 p. 137).

In this respect the Commission observes that, on 4 July 1986, the

applicant objected to the deportation order of 5 June 1986. On

10 July 1986 she applied for suspensive effect to be given her

objection, though this request was eventually rejected by the

Administrative Court and, on 29 August 1986, by the Administrative

Court of Appeal.

Nevertheless, the Commission recalls that under Article 26 (art. 26)

of the Convention it is also required that the substance of any

complaint made before the Commission should have been raised during

the proceedings concerned.

In the present case the applicant is complaining before the Commission

under Article 3 (art. 3) of the Convention of the inhuman treatment

which she will allegedly suffer if she returns to the Lebanon where,

according to her submissions before the Commission, she would be

exposed to attack by the competing militia. However, in the

proceedings before the Administrative Court she complained in

principle that the deportation would separate her permanently from her

husband and thus be contrary to Article 6 of the Basic Law which

protects marriage and family life.

It is true that on 28 July 1986 the Administrative Court found that no

impediment to the applicant's expulsion could be seen in one of the

grounds stated in S. 14 para. 1 of the Aliens' Act which prohibits

expulsion of a foreigner into a State where in certain circumstances

his life or freedom may be threatened.

Nevertheless, the applicant has not shown that in the subsequent

appeal proceedings before the Administrative Court of Appeal she

raised either in form or in substance the complaints which she is now

making before the Commission. Moreover, an examination of the case

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 raising her present

complaint in those proceedings.

It follows that the applicant has not complied with the condition as

to the exhaustion of domestic remedies and her application must be

rejected under Article 27 para. 3 (art. 27-3) of the Convention.

In any event, the Commission finds that the application is also

manifestly ill-founded for the following reasons. Even assuming that

the Commission may in such cases take into account an alleged danger

arising from autonomous groups (see No. 8581/79, ibid.), the applicant

has provided no evidence for her allegation that, while being a

Lebanese citizen, she would be persecuted as the spouse of a

Palestinian currently residing in Berlin, throughout the entire

Lebanon, or in a Palestinian camp established in the country in which

she would have to reside.

The applicant has therefore insufficiently substantiated that her

treatment in the Lebanon would render her expulsion contrary to

Article 3 (art. 3) of of the Convention. It follows that, even if she

had complied with the requirements of Article 26 (art. 26) of the

Convention, the application would have to be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(art. 27-2) of the Convention.

2. The applicant has in a subsequent letter to the Commission

also alleged that her expulsion to the Lebanon would permanently

separate her from her husband, who is not entitled to reside in the

Lebanon, and thus infringe her right to respect for family life within

the meaning of Article 8 (art. 8) of the Convention.

The Commission notes that the applicant filed on 4 July 1986 an

objection against the deportation order of 5 June 1986, and that the

proceedings are still pending. An issue arises therefore as to

whether the applicant has exhausted domestic remedies within the

meaning of Article 26 (art. 26) of the Convention. However, the

Commission is not required to resolve this issue since the application

is in any event inadmissible as being manifestly ill-founded.

The Commission has repeatedly held that no right of an alien to enter

or to reside in a particular country, nor a right not to be expelled

from a particular country, is as such guaranteed by the Convention

(see No. 9203/80, Dec. 5.5.81, D.R. 24 p. 239).

It is true that the applicant claims that her husband could not follow

her to the Lebanon and that, according to the Commission's case-law,

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. This situation may arise where, as in the present

case, a married person is obliged to leave a State in which she has

been living with her spouse and where it is claimed that the spouse

would be unable to follow her to her new residence.

However, Article 8 para. 2 (art. 8-2) permits such interferences with

the rights guaranteed under paragraph 1 of that provision as are in

accordance with the law and necessary in a democratic society for the

prevention of disorder or crime, or for the protection of health and

morals.

The Commission, assuming that the applicant's expulsion from the

Federal Republic of Germany constitutes an interference with her

family life, nevertheless has to take account of her repeated

convictions for property offences. It therefore finds that the

applicant's proposed expulsion is justified under paragraph 2 of

Article 8 (art. 8-2) as a measure taken in accordance with the law and

necessary in a democratic society for the prevention of disorder or

crime.

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.

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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Y. H. v. THE FEDERAL REPUBLIC OF GERMANY

Y. H. v. THE FEDERAL REPUBLIC OF GERMANY