FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 69735/01 by Abdellatif CHAIR and Jutta Käthe BRUNKEN against Germany

The European Court of Human Rights (First Section), sitting on 14 February 2006 as a Chamber composed of

Mr C.L. Rozakis , President , Mr L. Loucaides , Mrs F. Tulkens , Mrs E. Steiner , Mr K. H ajiyev , Mrs R. Jaeger , Mr S.E. J ebens , judges ,

and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 11 August 2000 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mr Abdellatif Chair, is a Moroccan national, who was born in 1962. At the time the application was lodged he lived in Hanover . He is currently residing in Morocco . The second applicant, Ms Jutta Käthe Brunken, is a German national and the wife of the first applicant. They were represented before the Court by Mr W. Schindler, a lawyer practising in Hanover . The respondent Go vernment were represented by Mrs A. Wittling-Vogel , Ministerial dirigentin, of the Federal Ministry of Justice.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. General background

In 1987 the first applicant left Morocco in order to complete his chemistry studies in France .

In 1989 he came to Germany at the age of twenty-seven in order to achieve his doctorate degree in chemistry.

In 1990 the competent authorities granted the first applicant a temporary residence permit, which was prolonged first until March 1994 and then until the end of April 1997.

On 13 March 1997 the first applicant married the second applicant. His residence permit was thus prolonged until 14 May 2000 .

In May 1997 a daughter was born to the applicants.

2. Proceedings for criminal offences

On 13 January 1998 the Hanover District Court ( Amtsgericht ) convicted the first applicant of aggravated theft and sentenced him to fifteen daily fines of thirty German marks.

On 21 April 1999 the Hanover Regional Court ( Landgericht ) convicted the first applicant of rape as he had forced, by using a knife, a university student to engage in sexual contact with him. It sentenced him to five years and three months ’ imprisonment. In its reasoning, the Regional Court considered in particular the fact that the first applicant had for the most part confessed his crime and that the crime had to a large part been committed due to the first applicant ’ s considerable intoxication and his growing frustration emanating from the lack of sexual contact with his wife. However, having regard to the fact that the first applicant had performed two acts of sexual coercion, that the incident had an overall duration of forty minutes and that he constantly used force against his victim, these factors could not lead to a mitigation in sentence.

On 5 January 2000 the Federal Court of Justice rejected the first applicant ’ s appeal on points of law.

On 20 June 2002 the Federal Constitutional Court refused to entertain his constitutional complaint for having been lodged out of time.

3. Expulsion proceedings

On 28 July 2000 the Municipality of Hanover ( Ordnungsamt ) ordered the first applicant ’ s expulsion to Morocco . Deportation to Morocco was announced upon his release from prison. Although the applicant was in possession of a valid residence permit and married to a German national, they considered that his conviction for a serious crime made it necessary to expel him under sections 47 § 1 and 48 § 1 of the Aliens Act ( Ausländergesetz, see relevant domestic law below ). The circumstances of the present case left no room for any discretion on the part of the German authorities. The circumstances leading to his last conviction proved that he possessed a considerable amount of criminal energy. As a recidivist ( Wiederholungstäter ), there was a risk that the first applicant would commit further criminal acts in the future. The first applicant ’ s assumption that his victim had willingly engaged in sexual contact with him gave rise to doubts as to whether he had fully comprehended and absorbed the extent of his crime.

According to the authorities, the long time spent in Germany could not prevent his expulsion, as his criminal offences had shown that he had so far not adapted to the living conditions in Germany . Neither his marriage to a German national, nor the fact that they had a child could lead to a different conclusion due to the seriousness of his crime.

On 29 January 2001 the Hanover Regional Government ( Bezirksregierung ) rejected the applicant ’ s objection.

On 3 February 2002 the applicant wrote a letter to the Aliens Office, stating his intention to leave the German territory voluntarily after exhaustion of domestic remedies and to pursue proceedings before the Court from Morocco .

On 13 February 2002 the Hanover Administrative Court ( Verwaltungsgericht ) confirmed the expulsion order of 28 July 2000 . Having regard to the reasoning of the first applicant ’ s criminal conviction, it found that given the seriousness of his crime, his expulsion was necessary in the interest of general deterrence ( Generalprävention ).

It also considered the expulsion justified in this particular case. The Administrative Court did not view the first applicant as a recidivist, as his prior conviction for theft could not lead to the conclusion that he would continue to commit sexual offences. However, although various expert reports attested the first applicant a positive social prognosis, a positive legal prognosis could only be issued under the condition that the first applicant absolve a successful therapy for couples and take leave of his “illusory concept of masculinity”. At the time when the first applicant ’ s expulsion order was issued, these requirements had not been met.

Despite the first applicant ’ s high professional qualifications and the fact that he had otherwise lived an orderly life, the two criminal offences committed in Germany gave proof to the fact that he had not succeeded in integrating himself into society. This finding was also based on the submissions of a psychological expert, according to whom there had been other situations prior to the rape incident where the first applicant had harassed women, even if such situations had not led to the commission of a sexual offence. If the first applicant did not learn how to adequately deal with problems and conflicts in a pertinent therapy, the Administrative Court could not exclude that he might again commit criminal acts.

The Administrative Court further pointed out that according to the legal practice in Germany , the existence of family ties alone could not prevent the first applicant ’ s expulsion. In any event, at the time of the expulsion decision, there were severe doubts as to the stability of the applicants ’ marriage. It was not certain to what extent the second applicant knew about the details of the crime committed by her husband. The relationship between the spouses was considered to be problematic. The second applicant had also not reacted to an offer to be heard on her husband ’ s expulsion. The first applicant had not substantiated why it was necessary for his wife and child that he remain in Germany, in particular as his wife financially supported the family and had, already prior to the first applicant ’ s imprisonment, arranged for their daughter to be cared for by a third person while she was at work.

The daughter ’ s interest that her father remained in Germany could also not be considered as more important than the public interest in his expulsion. The right to have access to his daughter was only protected insofar as such access had been exercised in the past. Despite regular meetings between the applicant and his daughter, which were apparently being continued, he had failed to substantiate that their ties amounted to a strong parent-child relationship that would warrant his stay in Germany .

On 28 May 2002 the Lower Saxony Administrative Court of Appeal ( Oberverwaltungsgericht ) confirmed that decision and rejected the first applicant ’ s request for leave to appeal.

On 12 December 2002 the Federal Constitutional Court refused to entertain the first applicant ’ s complaint.

4. Further developments

On 13 January 2003 the first applicant lodged a request for an interim order with the aim to be granted temporary suspension of deportation ( Duldung ). On 6 February 2003 the Hanover Administrative Court dismissed this request, stating, firstly, that expulsion was not imminent as the first applicant was still serving his prison sentence. In any event, the applicant ’ s request was unfounded. Referring to its own judgement of 13 February 2002 which had been confirmed by the Administrative Court of Appeal, the Administrative Court upheld that the expulsion order was in accordance with the law and that there was no room for a suspension of deportation. On 26 February 2003 the first applicant lodged a complaint. Following consultation of the case-file, the applicant ’ s counsel withdrew the complaint on 10 March 2003 .

On 27 February 2003 the Hanover Regional Court , sitting as an execution of sentence chamber ( Strafvollstreckungskammer ), ordered the first applicant ’ s release on probation. Based on psychological expert reports and on the submissions of the prison authorities, the Regional Court concluded that if the first applicant continued to abstain from an abuse of alcohol, the risk that he would commit further crimes was comparatively low. It assumed that the four years spent in prison may have contributed to a complete cure from the first applicant ’ s former addiction and considered that the first applicant had comprehended the extent of his crime. While admitting that the relationship to the second applicant had probably deteriorated during the time spent in prison, the Regional Court considered it remarkable that the couple had so far neither divorced, nor had either of the spouses applied for a divorce.

Following the first applicant ’ s release from prison on 2 April 2003 the applicants lived together with their child.

According to the applicants ’ submissions, they started to follow a therapy for couples in March 2004. On 15 March 2004 the Kingdom of Morocco , on the Municipal Authority ’ s request, issued a passport substitute document in order to allow the first applicant ’ s deportation. Following this, the first applicant left his family and went into hiding.

On 18 March 2004 the applicant filed a request with the Municipal Authority to set a time-limit to the exclusion order which had been issued together with the expulsion order.

On 24 July 2004 the applicant was arrested and on 16 September 2004 he was deported to Morocco where he since resides.

On 9 August 2005 the Municipality of Hanover limited the applicant ’ s exclusion from the German territory to twelve years from the time of deportation, that is until 16 September 2016 . The applicant ’ s request to set a shorter time-limit was rejected. The applicant was further granted the option to apply for a fresh examination of his request in 2013.

B. Relevant domestic law

The rights of entry and residence for foreigners were, at the relevant time, governed by the Aliens Act ( Ausländergesetz ).

According to section 47 § 1, No. 1 of the Aliens Act, a foreigner is to be expelled when he has been sentenced to a minimum of three years ’ imprisonment for having committed wilfully one or more criminal offences. If he is married to a German citizen, a foreigner may only be expelled if serious reasons of public safety and order justify his expulsion (Section 48 § 1). Generally, this will be the case where Section 47 § 1 applies ( Regelausweisung ).

According to section 8 § 2, a foreigner who has been expelled is not permitted to re-enter German territory. This effect shall usually ( in der Regel ) be limited in time upon application.

Section 53 § 4 stipulates that a foreigner may not be deported if such a deportation would not be authorised under the European Convention on Human Rights.

According to section 55 § 2, a foreigner shall be granted temporary suspension of deportation ( Duldung ) for as long as there are legal or factual reasons making his deportation impossible.

The suspension of deportation does not affect the foreigner ’ s duty to leave the country. The time-limit of a suspension should not exceed one year, but it is renewable (section 56 §§ 1 - 2) .

Since 1 January 2005 the entry and residence rights of foreigners are governed by the Residency Act ( Aufenthaltsgesetz ).

COMPLAINTS

1. The first applicant complained under Article 6 of the Convention about the unfairness of the criminal proceedings before the Hanover Regional Court .

2. The first applicant further complained that his conviction for rape and his ensuing expulsion amounted to double punishment.

3. Both applicants complained about the first applicant ’ s expulsion to Morocco under Article 8 of the Convention.

THE LAW

1. Alleged unfairness of the criminal proceedings

The first applicant complained under Article 6 of the Convention that the criminal proceedings before the Hanover Regional Court were unfair, in particular that they were conducted in the absence of an interpreter.

The Government pointed out that the applicant had failed to lodge a constitutional complaint against his criminal conviction within the statutory time limit of one month and had thus failed to exhaust domestic remedies.

Assuming that this complaint was included in the applicant ’ s constitutional complaint, the Court notes that the Federal Constitutional Court rejected the constitutional complaint for having been lodged out of time. It recalls that a complaint made to the Court must first have been put – at least in substance – to the appropriate domestic body, in compliance with the formal requirements prescribed in the domestic law (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). As the applicant failed to do this, he did not make proper use of the remedies available under German law.

This part of the complaint is thus to be rejected for non-exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention.

2. The complaint about double punishment

The first applicant complained that, by first sentencing him to five years ’ imprisonment and then expelling him from Germany , the a uthorities were punishing him twice for the same act.

The Government pointed out that Germany has not ratified Protocol No. 7 to the Convention. Furthermore, the applicant had not raised this complaint before the administrative courts.

Considering the applicant ’ s complaint under Article 6 of the Convention , the Court reiterates that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant ’ s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention (see Maaouia v. France [GC], no. 39652/98, § 40 , ECHR 2000 ‑ X ).

Further considering a possible violation of Article 4 of Protocol No. 7 , the Court notes that Germany has not ratified this Protocol.

Accordingly, this complaint must be rejected as being incompatible with the provisions of the Convention within the meaning of Article 35 § 3.

B. Alleged violations of Article 8 of the Convention

The applicants complained under Article 8 that the first applicant ’ s expulsion would violate their right to respect for private and family life.

Article 8, insofar as relevant, reads as follows:

“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 ... or for the protection of the rights and freedoms of others.”

1. The applicants ’ victim status

The Government questioned the first applicant ’ s status of a victim under Article 34 of the Convention, pointing out that he had indicated, by letter of 3 April 2002 , that he would leave Germany voluntarily after exhaustion of domestic remedies and that he would pursue his application to the Court from Morocco . According to the Government, this statement seems to indicate that the applicant did not feel aggrieved by a temporary stay in his home state and by the ensuing separation from his family.

The applicants contested these submissions. They claimed that the first applicant merely intended to avoid being forcefully deported.

The Court notes that the applicant, in his letter of 3 April 2002 , expressed his intention to pursue the proceedings before this Court. Accordingly, he cannot be regarded as having waived any of his rights under the Convention. This objection must therefore be rejected.

2. Alleged failure to exhaust domestic remedies

The Government further submitted that the first applicant had failed to exhaust domestic remedies because he did not lodge a complaint against the decision of the Hanover Administrative Court of 6 February 2003 which denied him a temporary suspension of deportation. They argue that such a suspension could have effectively prevented a separation of the applicants ’ family. According to the Government, the principle of subsidiarity required that domestic authorities be granted the opportunity to review all relevant facts which might lead to a violation of the Convention. They pointed out that the first applicant ’ s deportation occurred three years and eight months after the Hanover Regional Government had rejected the applicant ’ s objection against the expulsion order. The Government maintained that, in the meantime, changes relevant for a temporary suspension of deportation could have arisen, such as the alleged beginning of a couple therapy in March 2004 and the daughter ’ s entry into school.

The applicant s claimed that the first applicant withdrew his complaint against the decision of 6 February 2003 because it did not have any prospect of success, taking into account the previous decisions of the Hanover Administrative Court of 13 February 2002 and of the Administrative Court of Appeal of 28 May 2002 . They further pointed out that a suspension of deportation did not affect the validity and enforce ability of the expulsion order.

In the Court ’ s opinion, the question whether the applicants can be regarded as having exhausted domestic remedies must be further examined together w ith the merits of the complaint under Article 8 of the Convention. Thus, the Court finds necessary to join the Government ’ s objection in this regard to the merits of the case.

3. Merits

With respect to the merits of their complaint, the applicants submitted that the expulsion order infringed their right to enjoy their family life without being justified under § 2 of Article 8. They pointed out that they had lived together with their child before and after the first applicant ’ s imprisonment. The second applicant and their daughter could not be reasonably expected to follow the first applicant to Morocco , occasional contacts being insufficient to maintain the family relationship. They further stressed that the first applicant had not committed any further crimes after his release from prison and that his expulsion would deprive the applicants of the possibility to undergo a couple therapy and thus to solve the problems which initially lead to the crime in question.

The Government accepted that the relationship between the applicants and their child fell within the ambit of Article 8 § 1 of the Convention. They questioned however whether the expulsion order itself could be regarded as an interference with this right, because the separation of the family was not effected by the expulsion order as such, but by the actual deportation. Even assuming an interference with the applicants ’ rights under Article 8 § 1, the Government regarded this to be justified under § 2 of that same provision. In this respect they stressed the seriousness of the crime the first applicant committed. They further pointed out that the first applicant was already twenty-seven years old when entering German territory and undisputedly maintained close family ties with Morocco . On the other hand, the ties between the applicants became lose as a result of the imprisonment and the fact that the second applicant had refused any contact with the first applicant between November 2000 and November 2001. The Government finally alleged that the applicants could maintain contact after the first applicant ’ s deportation via visits and telephone conversations and that the exclusion order which was issued together with the expulsion order could be limited in time on the applicants ’ request. With respect to the decision on the time-limit to the first applicant ’ s exclusion, the Government pointed out that this was a separate administrative act which could not be reviewed by the Court prior to exhaustion of domestic remedies.

The Courts considers, in the light of the parties ’ submissions, that the complaint raises serious issues of facts and law under the Convention, the determination of which should depend on an examination of the merits.

The Courts concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court b y a majority

Decides to join to the merits the Government ’ s objection concerning the exhaustion of domestic remedies with respect to the applicants ’ complaint under Article 8 of the Convention;

Declares admissible, without prejudging the merits of the case, the applicants ’ complaint that the first applicant ’ s expulsion from Germany would violate their right to respect for their family life;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos R ozakis Registrar President