Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14652/89

by Zaki EIDOU

against the Federal Republic of Germany

The European Commission of Human Rights sitting in private

on 14 April 1989, the following members being present:

MM. S. TRECHSEL, Acting President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. J. RAYMOND, Deputy 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 30 January 1989

by Zaki EIDOU against the Federal Republic of Germany and registered

on 15 February 1989 under file No. 14652/89;

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

applicant, may be summarised as follows:

The applicant, born in 1930, is a stateless Kurd from

Lebanon. When lodging his application he was resident in Berlin

together with his Lebanese wife and eight children. At present he is

detained at a Berlin prison with a view to his deportation. Before

the Commission he is represented by MM. H. T. Schmitt and

J. A. Brückner, lawyers practising in Berlin.

The applicant entered the Federal Republic of Germany in

November 1979. His first three requests for political asylum remained

unsuccessful. On 9 July 1985 the Berlin Registration Office

(Landeseinwohneramt) declared his fourth request irrelevant and

clearly without any chance of success. However, the order to leave

the Federal Republic of Germany was suspended in view of a general

policy not to deport persons to Lebanon. The applicant withdrew his

action before the Berlin Administrative Court (Verwaltungsgericht) on

28 July 1986.

On 12 November 1986 the Berlin Registration Office renewed its

order that the applicant should leave the Federal Republic of

Germany. The applicant's appeal (Widerspruch) was dismissed by the

Berlin Senator of the Interior (Senator für Inneres) on 16 December

1986. The order was not enforced due to lack of travelling papers and

in view of the above-mentioned general policy.

On 12 April 1988 the Berlin Registration Office dismissed the

applicant's requests of 28 January and 15 February 1988 for a

residence permit under the general instruction of the Berlin Senator

of the Interior dated 1 October 1987 concerning all persons from

Lebanon staying in Berlin at that date ("Altfall-Regelung"). The

Registration Office also ordered the applicant to leave the Federal

Republic of Germany within a month and warned him that he would be

deported to Lebanon.

The instruction of the Berlin Senator of the Interior of

1 October 1987 provides that all persons from Lebanon who have

stayed before 1 October 1987 in Berlin pending or after asylum

proceedings and who have minor children will be granted a residence

permit. Excluded are inter alia persons who have committed criminal

offences. These are persons who have been sentenced for criminal

offences to a fine of more than 90 day rates (Tagessätze) or three

months' imprisonment. According to the case law of the Berlin

Administrative Court of Appeal (Oberverwaltungsgericht), stateless

male persons of an age liable for military service are exempted from

that rule.

In its decision of 12 April 1988 the Registration Office found

in particular that the applicant, having committed several criminal

offences, could not be granted a residence permit under the relevant

instruction of the Ministry of the Interior of 1 October 1987. The

Office noted that on 18 February 1985 the Tiergarten District Court

(Amtsgericht) had fined the applicant DM 300 (30 day rates of DM 10)

for theft; on 14 August 1985 the Tiergarten District Court again

fined him DM 300 (30 day rates of DM 10) for theft; both sentences were

cumulated to a fine of DM 450 (45 day rates of DM 10) by decision of

16 December 1985. Furthermore, on 11 August 1986 the applicant was

convicted by the Tiergarten District Court of bodily assault and fined

DM 1000 (100 day rates of DM 10).

Moreover, the Office considered that the applicant's children were

involved in numerous criminal investigation proceedings. His wife,

who had not applied for a residence permit, had been granted a

provisional permission to stay (Duldung) only pending the children's

asylum proceedings. They would also have to leave the Federal

Republic of Germany after refusal of their requests for political

asylum.

On 20 July 1988 the Berlin Administrative Court dismissed the

applicant's request for a suspension of the decision of 12 April 1988

(Antrag auf vorläufigen Rechtsschutz). The Court found that under the

German Aliens' Act (Ausländergesetz) the applicant was obliged to

leave the territory of the Federal Republic of Germany. The Court

considered in particular that, having regard to the applicant's

previous criminal convictions, his envisaged deportation did not

violate his right to respect for his family life. Furthermore, the

applicant, as a stateless Kurd, would not risk any political

persecution upon his return to Lebanon on the ground of his ethnic

origin. The general situation in Lebanon would not exclude his

deportation. He had himself not substantiated any particular danger.

On 22 September 1988 the Berlin Administrative Court of Appeal

dismissed the applicant's appeal (Beschwerde). The Administrative

Court of Appeal found in particular that the applicant had failed to

show any particular risk upon his arrival at Beirut Airport.

On 29 December 1988 the applicant was arrested and detained

with a view to his deportation.

On 3 January 1989 the Berlin Senator of the Interior dismissed

the applicant's appeal (Widerspruch) of 20 May 1988 against the

Registration Office's decision of 12 April 1988. The Senator of the

Interior noted that on 10 May 1988 the applicant had also been

convicted of tax evasion by the Tiergarten District Court and

sentenced to six months' imprisonment on probation. Furthermore it

referred to the reasoning of the Berlin Administrative Court in its

decision of 20 July 1988.

On 12 January 1989 the Schöneberg District Court ordered the

applicant's continued detention. In these review proceedings

(Haftprüfung), the applicant lodged a fifth request for political

asylum, and filed reasons on 17 January 1989.

On 3 February 1989 the Berlin Registration Office decided not

to re-open the applicant's asylum proceedings. It also ordered him to

leave the Federal Republic within a month and warned him that he would

be deported to Lebanon. The Office found that he had failed to invoke

new circumstances or evidence justifying the re-opening of his ayslum

proceedings. In particular, he had failed to substantiate that the

Office had no valid travelling papers for him and that he would

therefore be exposed to danger upon his return to Lebanon. The Office

referred, in this respect, to a decision of the Berlin Administrative

Court of 27 January 1989 in a similar case. Furthermore, the Office

considered that, having regard to the applicant's repeated convictions

and the great number of foreigners staying illegally in Berlin, the

public interest in his departure obviously outweighed his private

interests in staying, especially his right to respect for family life.

He had failed to substantiate either that he could not wait in Lebanon

for his family's return or that his presence in Berlin was for other

reasons necessary for his family.

Appeal proceedings and proceedings concerning the applicant's

request for a suspension of the decision of 3 February 1989 are

pending before the Berlin Administrative Court.

COMPLAINTS

The applicant complains under Articles 2, 3 and 8 para. 1 of

the Convention about his envisaged deportation to Lebanon. He submits

in particular that, having regard to the general political situation in

Lebanon, his deportation to Lebanon would amount to inhuman and

degrading treatment. Furthermore, he alleges that he would have to

face particular problems upon his return to Lebanon with the

travelling papers with which the Berlin Registration Office intended

to deport him.

THE LAW

1. The applicant complains that his deportation to Lebanon

amounts to inhuman treatment within the meaning of Article 3 (Art. 3) of the

Convention. He also invokes Article 2 (Art. 2) of the Convention.

The Commission recalls that according to its constant case-law

neither the right to political asylum nor the right not to be deported

are, as such, guaranteed by the Convention. Nevertheless, a person's

deportation may, in exceptional circumstances, be contrary to the

Convention, and in particular amount to inhuman and degrading treatment

contrary to Article 3 (Art. 3) if there are strong reasons to believe that the

person concerned is thereby put in a situation where he is likely to incur

risks for his life and physical integrity in the country of destination (cf.

No. 10760/84, Dec. 17.5.84, D.R. 38 p. 224; No. 10564/83, Dec. 10.12.84, D.R.

40 p. 262).

The Commission observes under Article 26 (Art. 26) of the Convention

that the applicant's request for a suspension of the deportation order of 12

April 1988 remained unsuccessful. His appeals still pending before the Berlin

Administrative Courts cannot, therefore, be regarded as effective remedies in

respect of his complaint under Article 3 (Art. 3) of the Convention, which the

applicant ought to have exhausted before addressing himself to the Commission.

The Commission finds that, in the particular circumstances of the

present case, there is no indication that in Lebanon the applicant would risk

treatment contrary to Article 3 (Art. 3) of the Convention. The Commission

considers in particular that the applicant, a stateless Kurd, referred to the

general political situation in Lebanon, which was examined in the domestic

proceedings by the Berlin Administrative Court, but failed to show by concrete

submissions concerning his personal situation that his life or physical

integrity would be in a serious danger in Lebanon. Consequently, there is no

appearance of a violation of Article 3 (Art. 3) of the Convention.

It follows that this aspect of the application must be rejected as

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

27-2) of the Convention.

2. Furthermore, the applicant complains under Article 8 (Art. 8) of the

Convention that his envisaged deportation violates his right to respect for his

family life.

However, the Commission is not required under Article 26 (Art. 26) of

the Convention to deal with this complaint as the applicant has failed to

exhaust the remedies available to him under German law.

The Commission observes that the applicant's appeal against the

deportation order of 12 April 1988 has not yet been decided upon by the Berlin

Administrative Court. The applicant has not shown that this appeal is not an

effective remedy in respect of his complaint under Article 8 (Art. 8) of the

Convention, and that he should be absolved, according to the generally

recognised rules of international law, from pursuing the administrative court

proceedings (cf. No. 7216/75, Dec. 20.5.76, D.R. 5 p. 137).

It follows that this part of the application must be rejected under

Article 27 para. 3 (Art. 27-3) in conjunction with Article 26 (Art. 26) of the

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYAMOND) (S. TRECHSEL)

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EIDOU v. THE FEDERAL REPUBLIC OF GERMANY

EIDOU v. THE FEDERAL REPUBLIC OF GERMANY

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