FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62444/00 by Ahmed Duran CAGLAR against Germany

The European Court of Human Rights ( Fourth Section) , sitting on 7 December 2000 as a Chamber composed of

Mr A. Pastor Ridruejo , President , Mr G. Ress , Mr L. Caflisch , Mr J. Makarczyk , Mr I. Cabral Barreto , Mrs N. Vajić , Mr M. Pellonpää , judges , and Mr V Berger , Section Registrar ,

Having regard to the above application introduced on 26 May 2000 and registered on 2 November 2000,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has not been complied with,

Having deliberated, decides as follows:

THE FACTS

The applicant, a Turkish national born in 1946, lives in Ober-Ramstadt (Germany). He is represented before the Court by Mrs Antje Martens, a lawyer practising in Ober-Ramstadt .

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

On 9 September 1971 the applicant entered Germany by virtue of the Agreement concluded on 30 October 1961 between the Government of the Federal Republic of Germany and the Government of the Republic of Turkey on the recruitment of Turkish workers. The applicant was granted the appropriate work and residence permits. On 17 September 1987 he was granted a residence permit of unlimited duration.

The applicant was first employed by a company in Rohrbach . Thereafter he worked in various restaurants.

The applicant’s wife entered Germany in 1972 with the couple’s three children born in Turkey in 1964, 1968 and 1970. She holds a permanent residence permit.

On 12 July 1988 the applicant was arrested and detained pending trial on suspicion of being implicated in a case of drug trafficking.

By a judgment of 6 November 1991, which subsequently became final, the Darmstadt Regional Court ( Landgericht ) convicted the applicant of illegal drug trafficking and sentenced him to seven years’ imprisonment. The applicant’s accomplice was convicted of illegal drug trafficking and attempted importation of narcotics and sentenced to seven years’ and three months’ imprisonment. The court found that the applicant who was not a drug addict, had bought together with his accomplice, a co-national, approximately 1,000 grams of heroin for the price of 70,000 German marks. In March/April 1987 a third person supplied them with two samples of respectively half a gram of heroin. Not being satisfied with the quality, they refused to buy a larger amount. One month later further negotiations took place with the same person and with the same result. As from August 1987 the applicant’s accomplice sold several times altogether about 100 grams of heroin in quantities of 5 to 14.5 grams. According to the court, the applicant and his accomplice acted in a professional way to the detriment of the health and life of numerous drug addicts.

Since 10 September 1992 the applicant served his sentence in the Darmstadt prison. He was granted day parole release and worked for a private enterprise in Weiterstadt . On 24 February 1993 the Darmstadt Regional Court ordered the applicant’s release on probation. The applicant was released on 4 March 1993. He was employed by the private enterprise until 31 August 1993.

After having heard the applicant on several occasions, the Darmstadt-Dieburg Administrative Authorities ordered the applicant’s expulsion on 1 December 1993 and invited him to leave Germany within three months. The decision to expel the applicant was based on Sections 47 and 48 of the Aliens Act ( Ausländergesetz ) according to which an alien is to be expelled when he has been sentenced to a minimum of five years’ imprisonment and serious reasons of public safety and order justify his expulsion. The Administrative Authorities pointed out that the applicant had been convicted of drug offences, sentenced to seven years’ imprisonment and it considered that his expulsion had to be ordered on general preventive grounds having the objective of deterring other aliens. Furthermore, the applicant’s personal conduct when committing the offences indicated a specific risk of re-offending. The Administrative Authorities noted that the applicant’s wife lived for many years in Germany and was granted a residence permit. However, a medical examination did not show that she suffered from psychiatric health problems, as was alleged by the applicant. The couple’s three children were of full age and sufficiently independent to organise their life without their father. The Administrative Authorities concluded that the applicant’s expulsion was justified by the public interest, which had greater importance than the applicant’s personal interest to stay in Germany.

Following the partial dismissal of his objection ( Widerspruch ), the applicant brought the case before the Darmstadt Administrative Court ( Verwaltungsgericht ).

On 3 March 1998 the Administrative Court dismissed the applicant’s claim to have the expulsion order revoked. The court considered that the applicant’s conviction of drug trafficking and his term of emprisonment of seven years reflected a serious breach of public order. The applicant had direct and narrow connections with drug dealers and the drug scene. He had acted in a professional manner as was shown by the quantity of the heroin and the fact that in March/April 1987 he and his accomplice twice refused to accept offers to buy heroin because of its unsatisfactory quality. This also proved that the applicant had a profound knowledge of drugs and did not accept bad quality. Furthermore, the heroin was sold in quantities of five to ten grams during a longer period and the deals were concluded generally in the restaurants in which the applicant was employed. Finally it had to be taken into account that the applicant did not make his confession until very late in the proceedings, namely when he realised that he had no other choice. For that reason, his sentence was relatively more severe than that of his accomplice. The court added that there was no doubt that offences such as illegal heroin trafficking, because of the danger they present for the health of the users and the widespread drug-related criminality, constituted a particularly serious threat to public safety and justified the expulsion of aliens who contravened the laws on drugs for the purpose of deterring other aliens. The court found that the applicant’s conduct which gave rise to his conviction was evidence of a genuine and sufficiently serious risk that he might commit further drug offences. Furthermore, there was no indication of exceptional circumstances that would justify non-expulsion. The court noted that the applicant had been integrated into Germany after having lived there for more than 26 years with his wife and other close members of his family, and that he had been legally employed there for years. The court considered, however, that a foreign national could be denied the right to the protection of his marriage on the basis of general preventive grounds if he had committed drug offences. The applicant’s case was therefore not different from that of other aliens who after a long stay had to leave the country for having committed serious offences.

M oreover, the Administrative Court found that the interference with the applicant’s right to respect for his private and family life, as guaranteed by Article 8 § 1 of the Convention, did not infringe the principle of proportionality. The measure complained of was not disproportionate to the seriousness of the offences committed by the applicant and was thus justified under paragraph 2 of this provision.

On 25 June 1998 the applicant filed a request for leave to appeal ( Antrag auf Zulassung der Berufung ).

On 28 April 1999 the Hessen Administrative Court of Appeal ( Hessischer Verwaltungsgerichtshof ) dismissed this request and on 4 November 1999 rejected the applicant’s request to reconsider this decision.

On 22 November 1999 a panel of three judges of the Federal Constitutional Court ( Bundesverfassungsgericht ) declined to accept the applicant’s constitutional complaint for adjudication and on 4 February 2000 declined to accept for adjudication the applicant’s constitutional complaint against the communication of the Hessen Administrative Court of Appeal of 4 November 1999.

In the meantime, on 10 June 1999, the Darmstadt-Dieburg Administrative Authorities had informed the applicant that he would be expelled to Turkey if he did not to leave Germany before 15 July 1999.

On 2 July 1999 the applicant filed an objection against this decision. He submitted that he had not committed any offence after his conviction in 1991. His personal conduct did thus not indicate any specific risk to the requirements of public order and safety. Furthermore, his wife suffered from serious psychiatric health problems and needed his help. According to him, his expulsion could not be justified only on the basis of general grounds of prevention.

On 7 January 2000 the applicant applied for an interim injunction ( einstweilige Anordnung ) requesting to stay his expulsion pending the administrative proceedings.

On 12 May 2000 the Darmstadt Administrative Court dismissed the request. It confirmed the decision to expel the applicant to Turkey reaffirming that the applicant’s personal interest to stay in Germany did not outweigh the public interest to expel him.

On 4 October 2000 the Hessen Administrative Court of Appeal dismissed the applicant’s request for leave to appeal ( Antrag auf Zulassung der Beschwerde ).

On 3 November 2000 the applicant filed a constitutional complaint against this decision and applied for an interim injunction. These proceedings are still pending.

COMPLAINTS

The applicant complains under Article 3 of the Convention that his envisaged expulsion to Turkey constitutes inhuman and degrading treatment. He submits that that he has not been in Turkey for thirty years, that he is 55 years old and that he would face a very difficult economic situation in that country. Furthermore, it can not be excluded that he will be arrested in Turkey and again be convicted for the same offences for which he had already been convicted in Germany in 1991. If he were to be expelled, there was also the risk of his attempting to commit suicide.

The applicant complains under Article 8 of the Convention that his envisaged expulsion violates his right to respect for his private and family life. He stresses that after more than 30 years of residence in Germany he has fully integrated into German society. With regard to the nature and seriousness of the offence of which he had been convicted, he points out that, having been arrested on 12 July 1988, his sentence was suspended on daily parole on 10 September 1992 and that, on 4 March 1993, he was released on probation. In that connection, the applicant submits that he has not committed any further offence ever since. Moreover, his wife is suffering from serious psychiatric problems and needs his presence. She cannot be expected to follow him to Turkey. His expulsion would put an end to his family life. He maintains that the measure taken by the German authorities against him is in breach of the principle of proportionality in the absence of any pressing social need to expel him.

The applicant complains under Article 6 of the Convention about the fairness and the length of proceedings before the Darmstadt Administrative Court. According to him the court should have heard him in person and with the assistance of a newly appointed lawyer before deciding and should also have referred the case to the Court of Justice of the European Communities for a preliminary ruling under Article 177 of the EEC Treaty. He submits in that context that, having regard to the principles which have been laid down by the Court of Justice in the context of freedom of movement for workers who are nationals of a Member State and which are applicable by analogy to Turkish workers enjoying the rights accorded by Decision No 1/80 of the Association Council established by the Association Agreement between the European Economic Community and Turkey of 19 September 1980 on the development of the Association, a measure expelling an alien as a matter of principle ordered on general preventive grounds following a criminal conviction for a specific offence must be considered to be incompatible with Article 14 (1) of that decision.

PROCEEDINGS BEFORE THE COURT

The application was introduced on 26 May 2000 and registered on 2 November 2000. On 3 November 2000 the applicant requested the Court to stay his deportation from Germany. On 14 November 2000 the President of the Chamber decided not to indicate to the Government of Germany, pursuant to Rule 39 of the Rules of Court, the measure suggested by the applicant.

THE LAW

A. Alleged violation of Article 3 of the Convention

The applicant claims that his expulsion to Turkey would amount to a breach of Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court recalls that Contracting States have the right to control the entry, residence and expulsion of aliens. However, expulsion by a Contracting State may give rise to an issue under Article 3 where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to expel the person in question to that country (see the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 35, §§ 90-91, the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 28, §§ 69-70, and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1853, §§ 73-74).

The court further recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum is, in the nature of things, relative. It depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see the Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 162).

Having regard to the above considerations and having examined the arguments and materials submitted by the applicant, the Court considers that the applicant has not shown that there are substantial grounds for believing that he would face a real risk of being subjected to treatment proscribed by Article 3 if removed to Turkey. In particular, no risk of the applicant being subject to torture or inhuman treatment in Turkey has been alleged or made out. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

B. Alleged violation of Article 8 of the Convention

In the applicant’s submission, the decision to expel him infringed his right to private and family life and violated Article 8 of the Convention, which provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court has no doubt that the decision to expel the applicant amounts to an interference with his right to respect for both his private and his family life.

It must accordingly be determined whether the expulsion order satisfied the conditions set out in paragraph 2, that is to say whether it was “in accordance with the law”, pursued one or more legitimate aims set forth and was “necessary in a democratic society” for them to be achieved.

As regards the lawfulness of the interference, the Court observes that the decision to expel the applicant was based on Sections 47 and 48 of the Aliens Act. The interference was therefore “in accordance with the law” within the meaning of Article 8 § 2.

Moreover, when issuing the impugned decision, the German authorities considered that the interference pursued aims that were wholly compatible with the Convention: the “prevention of ... crime” and the “prevention of disorder”.

The Court recalls that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well ‑ established international law and subject to their treaty obligations, to control the entry and residence of aliens. To that end they have the power to deport aliens convicted of criminal offences (see the El Boujaïdi judgment of 26 September 1997, Reports 1997-VI, p. 1992, § 39, the Boujlifa v. France judgment of 21 October 1997, Reports 1997-VI, p. 2264, § 42, and the Baghli v. France judgment of 30 November 1999 to be published in the official reports of selected judgments and decisions of the Court).

However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, inter alia , the Boujlifa judgment cited above, p. 2264, § 42).

Thus the Court’s task is to determine whether the measure in issue struck a fair balance between the conflicting interests, namely, on the one side, the applicant’s right to respect for his private and family life and, on the other, the prevention of disorder or crime.

The Court notes that the applicant arrived in Germany in September 1971 and has been living there lawfully for almost thirty years. His wife and children also live in that country. Thus, the applicant’s main family and social ties are in Germany. But the Court must also consider the seriousness of the offence of which the applicant was convicted. In this connection, it notes that the Darmstadt Regional Court sentenced the applicant to seven years’ imprisonment for dealing in heroin, a drug particularly hazardous for buyers. The offence indisputably constituted a serious breach of public order and undermined the protection of the health of others. In view of the devastating effects of drugs on people’s lives, the Court appreciates why the authorities show great firmness with regard to those who actively contribute to the spread of this scourge (see the Dalia v. France judgment of 19 February 1998, Reports 1998-I, p. 92, § 54). Although the applicant’s removal from Germany would involve considerable hardship, the Court considers, in the light of the foregoing, and taking into account the margin of appreciation left to the Contracting States in such circumstances (see the Boughanemi v. France judgment of 24 April 1996, Reports 1996 II, p. 610, § 41) , that the decision to expel the applicant was not disproportionate to the legitimate aims pursued. There is therefore no appearance of a violation of Article 8.

It follows that this complaint is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

C. Alleged violation of Article 6 § 1 of the Convention

The applicant complains in substance that he was denied a fair hearing and that the length of the proceedings before the Darmstadt Administrative Court had been unreasonable, contrary to Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”

However, the Court recalls that 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, as the most recent authority, the Maaouia v. France judgment of 5 October 2000 to be published in the official reports of selected judgments and decisions of the Court).

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Antonio Pastor Ridruejo Registrar President