FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 44911/98

by T.A. and others

against Germany

The European Court of Human Rights ( Fourth Section) sitting on 19 January 1999 as a Chamber composed of

Mr M. Pellonpää , President ,

Mr G. Ress ,

Mr I. Cabral Barreto ,

Mr V. Butkevych ,

Mrs N. Vajić ,

Mr J. Hedigan ,

Mrs S. Botoucharova , Judges ,

Mr J. A. Pastor Ridruejo ,

Mr L. Caflisch ,

Mr J. Makarczyk , Substitute Judges ,

with Mr V. Berger, S ection Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 November 1998 by T . A . and others against Germany and registered on 10 December 1998 under file No. 44911/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant, born in 1953, is the husband of the second applicant, B. A. , born in 1956. The third to ninth applicants, R. A. , born in 1974, A. A. , born in 1975, I. A. , born in 1980, K. A. , born in 1983, M. A. , born in 1987, M. A. , born in 1989 and M. A. , born in 1991, are the couple ’ s children. They are Lebanese nationals and live in Geesthacht (Germany). In the proceedings before the Court they are represented by Mr Rudolf Klever , a lawyer practising in Hamburg.

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

On 10 May 1990 the applicants, except M. A. , who was born afterwards, reached the Federal Republic of Germany. Their request for political asylum was dismissed by the Federal Office for Refugees ( Bundesamt für die Anerkennung ausländischer Flüchtlinge ) on 24 April 1991. The Federal Office found that the first applicant ’ s submissions according to which he had killed a member of an armed group in Lebanon and according to which his family was exposed to the vengeance of that group and the applicant himself to criminal prosecution and torture were not credible.

The applicants ’ request to be granted a residence permit was unsuccessful. In a judgment of 29 September 1994 the Schleswig-Holstein Administrative Court of ( Oberverwaltungsgericht ) considered that the applicants were not entitled to a residence permit under the relevant provisions of the Aliens Act ( Ausländergesetz ) and had not established a real and substantial fear of persecution in Lebanon. The applicants were ordered to leave the German territory before 9 December 1994.

This decision could not be implemented because the applicants had no travel documents.

On 12 November 1996 the applicants requested unsuccessfully to be granted a residence permit in accordance with the provisions of the Aliens Act ( Ausländergesetz ) applicable in cases of particular hardship ( Härtefallregelung ).

On 6 December 1997, the applicants renewed their request to be granted a residence permit invoking in particular Articles 3 and 8 of the Convention. By a decision of 24 July 1998 the Lauenburg Aliens Office ( Ausländerbehörde ) dismissed this request and ordered their expulsion.

On 31 July 1998 the applicants filed an objection ( Widerspruch ) against this decision which was dismissed by the Lauenburg Administrative Authorities ( Landrat ) on 8 October 1998 on the ground that that Articles 3 and 8 of the Convention did not guarantee a right as such to be granted a residence permit. They considered that the applicants themselves were responsible for their situation. Having failed to co-operate with the authorities with a view to returning to their country, the delay they caused was due to their own fault and they were therefore in no position to invoke Articles 3 and 8 of the Convention.

On 12 October 1998 the Schleswig-Holstein Court of Appeal dismissed the applicants ’ request for leave to appeal ( Antrag auf Zulassung der Beschwerde ).

In the meantime, i.e. on 14 September 1998, the applicants had introduced an action before the Schleswig-Holstein Administrative Court ( Verwaltungsgericht ) requiring that the Lauenburg Aliens Office be ordered to desist from taking any expulsion measures against them. They had also applied for an interim injunction ( einstweilige Verfügung ), requesting to stay their deportation pending these proceedings. The applicants submitted that the decision to expel them after having lived more than eight years in Germany constituted inhuman treatment within the meaning of Article 3 of the Convention and was in breach of their right to respect for their private life as guaranteed by Article 8 § 1 of the Convention.

On 22 September 1998 the Administrative Court dismissed the applicants request for an interim injunction. The proceedings on the merits are still pending.

COMPLAINTS

The applicants complain of the decision of the German authorities to expel them from Germany . They submit that their expulsion from this country after having lived there for more than eight years would constitute inhuman and degrading treatment within the meaning of Article 3 of the Convention and violate their right to respect for their private and family life as guaranteed by Article 8 of the Convention. They submit that they have fully integrated into German social life. The children attend successfully university and school and the youngest daughter was born in Germany. They have all their family and social ties in Germany and their nationality which links them to Lebanon, though a legal reality, does not reflect their actual position in human terms. As integrated aliens they should not be liable to expulsion. Moreover, upon their return to Lebanon they would encounter serious difficulties.

The applicants further submit that they had not lodged a constitutional complaint with the Federal Constitutional Court ( Bundesverfassungsgericht ), because it would have had no reasonable prospects of success. In support of their allegation they submit two constitutional complaints. The first complaint concerns the deportation order of a twenty-five years old Turkish citizen who had been convicted on several occasions of criminal offences and who had arrived in Germany when he was five years old. The second case concerns the deportation order of a Syrian citizen following his divorce from his Polish wife with whom he had a daughter. The mother was granted the child ’ s custody. Mother and daughter live in Germany. In both constitutional complaints Articles 3 and 8 of the Convention and the corresponding provisions of the German Basic Law ( Grundgesetz ) had been invoked. On 30 April 1998 and 19 August 1998 the Federal Constitutional Court , sitting as a panel of three judges, declined to admit these constitutional complaints for adjudication.

The applicants finally invoke Article 13 of the Convention.

PROCEEDINGS BEFORE THE COURT

The application was introduced on 12 November 1998 and registered on 10 December 1998. The applicants requested the Court to stay their deportation from Germany.

On 15 December 1998 the Court (Fourth Section) decided not to indicate to the Government of Germany, pursuant to Rule 39 of the Rules of Court, the measure suggested by the applicants.

THE LAW

1. The applicants complain under Articles 3 and 8 of the Convention about their envisaged expulsion to Lebanon. They maintain that their expulsion after a period of more than eight years of residence in Germany constitutes inhuman and degrading treatment and violates their right to respect for their private and family life. They stress that they have fully integrated into the German society and that they have all their family and social ties in that country where the youngest daughter was born. They also invoke Article 13 of the Convention.

Article 3 of the Convention provides as follows:

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

Article 8 of the Convention states, insofar as relevant:

“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 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 recalls that Contracting States have the right, as a matter of well-established international law and subject to their obligations under international treaties including the Convention, to control the entry, residence and expulsion of aliens. Moreover, it must be noted that the right to political asylum is not contained in either the Convention or its Protocols (see Eur. Court HR, Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, § 102). Nevertheless, expulsion by a Contracting State of an asylum seeker may give rise to an issue under Article 3, and hence engage the responsibility of the State under the Convention, 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 Eur. Court HR, Chahal v. United Kingdom judgment of 15 November 1996, Reports 1996-V, No. 22, p. 1853, §§ 73-74; Ahmed v. Austria judgment of 17 December 1996, Reports 1996-VI, p. 2206, §§ 38 and 39). The Court further recalls that such treatment has to reach a certain level of severity before it can be considered to be contrary to Article 3 of the Convention (see Eur. Cou rt HR, Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 31, § 83).

Moreover, the expulsion of a person from a country where close members of his family reside may amount to an infringement of the right to respect for his private and family life guaranteed in Article 8 § 1 of the Convention (see Eur. Court HR, Moustaquim v. Belgium judgment of 18 February 1991, Series A no. 193, p. 18, § 36).On the other hand, Article 8 does not guarantee a right to choose the most suitable place to develop family life (see Eur. Court HR, Ahmut v. the Netherlands judgment of 28 November 1996, Reports 1996-VI, p.2033, §§ 67 and 71).

In the light of these principles and the particular circumstances of the present case it appears doubtful whether the applicants can claim a right under Articles 3 and 8 of the Convention to reside in Germany or not to be expelled from that country.

However, the Court is not required to decide whether or not the facts alleged by the applicants disclose any appearance of a violation of the Convention. Article 35 § 1 of the Convention provides that the Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. The Court recalls in this respect that Article 35 § 1 of the Convention is intended to provide national authorities with the opportunity of remedying violations alleged by an applicant (cf. Eur. Court HR, López Ostra v. Spain judgment of 9 December 1994, Series A no. 303-C, p. 52, § 38). The Court further recalls that applicants invoking Article 3 of the Convention are not dispensed as a matter of course from exhausting domestic remedies that are available and effective (cf. Eur. Court HR, Bahaddar v. the Netherlands judgment of 19 February 1998, Reports 1998-I, p. 263, § 45).

The Court notes that in the present case the applicants failed to lodge a constitutional complaint with the Federal Constitutional Court. It is true that, in the applicants ’ submissions, they claim that a constitutional complaint would have been futile in view of the case-law of the Federal Constitutional Court in similar cases.

However, while recognising the principle that an applicant is excused from pursuing domestic remedies which are bound to fail, the Court nevertheless finds that in such cases an applicant has to show either by providing relevant court decisions or by presenting other suitable evidence that a remedy available to him would in fact have been of no avail (cf. Comm HR, No. 11945/86, Dec. 12.3.87, D.R. 51, p. 186). The Court considers that the decisions of the Federal Constitutional Court submitted by the applicants were based on factual situations which proved to be different. The Court cannot find it established therefore that a constitutional complaint would to have to be regarded on the face of it as ineffective. The Court further observes that the existence of doubt as to the chances of success of a domestic remedy does not exempt an applicant from the obligation to exhaust it (cf., e.g., Eur. Comm HR, No. 13669/88, Dec. 7.3.90, D.R. 65 p. 245).

The Court concludes that in the present case no special circumstances existed which might have absolved the applicants, according to the generally recognised rules of international law, from exhausting the domestic remedies at their disposal.

It follows that the applicants have not complied with the condition as to the exhaustion of domestic remedies, and the application must therefore be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Vincent Berger Matti Pellonpää Registrar President