AS TO THE ADMISSIBILITY OF

                       Application No. 14312/88

                       by L.E.

                       against the Federal Republic of Germany

        The European Commission of Human Rights, sitting in private,

on 8 March 1989, the following members being present:

             MM.  S. TRECHSEL, Acting President

                  J. A. FROWEIN

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J. C. SOYER

                  H. DANELIUS

                  G. BATLINER

                  H. VANDENBERGHE

             Sir  Basil HALL

                  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 11 October 1988

by  Leila Sami El Makhour against the Federal Republic of Germany and

registered on 25 October 1988 under file No. 14312/88;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having regard to:

-       the respondent Government's observations of 5 December 1988

        and the applicant's observations in reply of 16 December 1988,

        31 January and 13 February 1989;

-       the parties' submissions at the oral hearing on 8 March 1989;

        Having deliberated;

        Decides as follows:

THE FACTS

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

parties, may be summarised as follows:

        The applicant, born in 1957, is presently staying in Berlin

with her Lebanese husband and three children, born in 1977, 1980 and

1982.  She is apparently of Palestinian origin.  She first had a

Palestinian identity card and later she also possessed a Lebanese

passport.  However, it is in dispute whether or not the applicant

acquired Lebanese nationality upon her marriage and whether the

passport was valid.  The Berlin Registration Office (Einwohneramt)

registered the applicant as a stateless person.  Before the Commission

she is represented by Mr.  Kierzynowski, a lawyer practising in Berlin.

        In August 1978 the applicant and her husband arrived in

Berlin for the first time.  They both applied for political asylum.

In February 1980 they returned to Beirut.  The asylum proceedings were

therefore discontinued.  In May 1981 the applicant and her husband

came to Berlin a second time.  They again applied for political

asylum.  Their requests were dismissed in November 1982.  The spouses

instituted court proceedings;  however, in January 1983 they withdrew

their actions and left Berlin.

        In April 1984 they came for the third time to Berlin and again

applied for political asylum.  Since that time they have been staying

with their three children in Berlin.  In July 1984 the applicant and

her husband again withdrew their requests for political asylum.  The

Berlin Registration Office, having regard to a general policy not to

expel persons to Lebanon, issued provisional permissions for them to

stay (Duldungen).

        On 21 December 1987 the Berlin Registration Office, having

regard to a general instruction of the Berlin Senator of the Interior

(Senator für Inneres) dated 1 October 1987 concerning all persons

from Lebanon staying in Berlin at that date ("Altfallregelung"),

granted the applicant's husband a residence permit.

        The instruction of the Berlin Senator of the Interior of 1

October 1987 provides that all persons from Lebanon who have stayed in

Berlin before 1 October 1987 pending or after asylum proceedings and

who have minor children will be granted a residence permit.  Excluded

are inter alia 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), only stateless male

Palestinians of an age liable for military service would be exposed to

such risks and dangers in Lebanon that they are in general not to be

deported to Lebanon.

        On 15 February 1988 the Berlin Registration Office dismissed

the applicant's request for a residence permit.  The Office found 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 applicant had been

convicted of shop-lifting four times.  On 29 May 1979 the Tiergarten

District Court (Amtsgericht) had fined the applicant 600 DM for theft.

On 11 January 1983 the Tiergarten District Court had sentenced the

applicant to three months' imprisonment on three counts of theft, and

the execution of the sentence had been suspended on probation.  On

6 February 1986 the Tiergarten District Court had sentenced the

applicant to three months' imprisonemnt for theft, and the execution

of the sentence had again been suspended on probation.  On 19 December

1986 the Tiergarten District had sentenced the applicant to three

months' imprisonment for theft and suspended the execution of the

sentence on probation.  The appeal (Berufung) of the Berlin Public

Prosecutor's Office (Staatsanwaltschaft) had been dismissed by the

Berlin Regional Court (Landgericht) on 6 March 1987.

        On 15 February 1988 the Berlin Registration Office ordered

the applicant to leave the Federal Republic of Germany within a month

and warned her that she would be deported to Lebanon.

        On 23 March 1988 the applicant lodged an appeal (Widerspruch)

and requested the suspension of the deportation order.  She submitted

in particular that the envisaged deportation would violate her right

to respect for her family life under the Basic Law (Grundgesetz).

        On 30 June 1988 the Berlin Administrative Court (Verwaltungs-

gericht) dismissed the applicant's request for a suspension of the

decision of 15 February 1988 (Antrag auf einstweiligen  Rechts-

schutz).  The Court found that under the relevant provisions of the

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

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

considered the applicant to be a Lebanese national.  The provisions of

the instruction of 1 October 1987 did not apply to her on the ground

that she had committed several criminal offences and had been

sentenced to a total of more than three months' imprisonment.  The

obligation to leave the country and the possible deportation to Lebanon

would not cause a particular hardship to the applicant's family life,

because her husband and children were able to join her.

        Under S. 24 para. 1 of the Code of Administrative Procedure

(Verwaltungsverfahrensgesetz) the competent authority has, ex officio,

to examine the facts.  The authority decides upon the manner and

extent of investigations; it is not bound by the parties' submissions

and requests to take evidence.  Under S. 86 para. 1 of the Code of

Administrative Court Procedure (Verwaltungsgerichtsordnung) the court

has, ex officio, to examine the facts; the parties are to be heard.

The court is not bound by the parties' submissions and requests to

take evidence.

        The applicant's appeal (Beschwerde) against the above refusal

of a suspension was dismissed by the Berlin Administrative Court of

Appeal on 25 July 1988.  The Administrative Court of Appeal found in

particular that the refusal of a residence permit did not interfere

with the applicant's right to respect for her family life in a

disproportionate way.

        The applicant's petition to the Berlin Diet (Abgeordnetenhaus)

was unsuccessful.

        On 2 March 1989 the Berlin Senator of the Interior dismissed

the applicant's appeal of 23 March 1988 against her deportation.

Referring to the decisions in the suspension proceedings, the Senator

found in particular that the applicant had to accept a separation of

her family at least for some time.  Furthermore, even assuming that

the applicant was of Palestinian origin, she had in the meantime

acquired Lebanese nationality and had been able to travel from and to

Lebanon with a Lebanese passport.  In July 1988 a "laissez-passer" had

therefore been correctly issued for her as travelling document,

stating her Lebanese nationality.  Moreover, the Senator found that

the applicant had failed to substantiate individual reasons to fear

persecution in Lebanon as a woman of Palestinian origin.  The Senator

referred in this respect to a report of the Foreign Office (Auswär-

tiges Amt) dated 1 July 1988 according to which Palestinians who are

integrated in Lebanon can live there without problems.  Finally, the

Senator considered that the applicant's sentences had exceeded by far

the limits for a residence permit under the instruction of 1 October

1987, and that she did not even qualify for a provisional residence

permit on probation ("Bewährungsduldung").  The applicant could, under

the relevant regulations, expect permission to return to her family in

Berlin at the earliest two years after her departure ("Die Wieder-

einreise zu Ihrer hier lebenden Familie unter Einhaltung der Einreise-

vorschriften kann Ihnen frühestens nach zwei Jahren - gerechnet vom

Tag Ihrer Ausreise an - in Aussicht gestellt werden.").

COMPLAINTS

1.        The applicant complains under Article 3 of the Convention

that her envisaged deportation to Lebanon would amount to inhuman

treatment.  She submits in particular that she has no relatives in

Beirut who could support her.  She fears that she would, as a woman

without protection, be exposed to the dangers and risks of the civil

war in Lebanon.   As a Palestinian she would be persecuted and

discriminated against in Lebanon.  She submits that she is of

Palestinian origin and did not acquire Lebanese nationality upon

marriage to her husband.  Furthermore, she fears that the Lebanese

authorities will not accept her "laissez-passer" as a valid document

on the ground that such "laissez-passer" are generally only issued to

stateless Kurds and stateless Palestinians who are not registered with

the UNRWA.  She would therefore risk arrest upon her arrival in

Lebanon.

2.        The applicant also complains under Article 8 para. 1

of the Convention that the decision of the German authorities to

deport her to Lebanon violates her right to family life.  She submits

that, having regard to the interests of their children and their

further development, her husband will not be able to follow her to

Lebanon.  She considers that her previous convictions do not justify

this interference under Article 8 para. 2 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 11 October 1988 and

registered on 25 October 1988.

        On 10 November 1988 the Commission decided that, in accordance

with Rule 42 para. 2 (b) of the Rules of Procedure, notice should be

given to the Government of the Federal Republic of Germany of the

application and that they should be invited to submit written

observations on the admissibility and merits of the application.

Furthermore, the Commission decided to indicate to the Government of

the Federal Republic of Germany, in accordance with Rule 36 of the

Rules of Procedure, that it was desirable in the interests of the

parties and the proper conduct of the proceedings before the

Commission not to deport the applicant to Lebanon until the Commission

had had an opportunity to examine the application further during its

December session.

        The Government's observations of 5 December 1988 were received

on 9 December 1988.

        On 15 December 1988 the Commission prolonged the indication

under Rule 36 of its Rules of Procedure until it had had an

opportunity to examine the application further during its January

session.

        The applicant's observations in reply were submitted on

16 December 1988.  Further observations were submitted by the

applicant on 31 January and 13 February 1989.

        On 20 January 1989 the Commission decided to invite the

parties to a hearing on the admissibility and merits of the

application.  Furthermore, it decided to prolong the indication under

Rule 36 of its Rules of Procedure until the date of the hearing.

        On 7 February 1989 the President of the Commission decided

that legal aid should be granted to the applicant for the

representation of her case before the Commission.

        At the hearing which was held on 8 March 1989 the parties were

represented as follows:

For the Government

Mr.  Meyer-Ladewig     Ministerialdirigent,

                      Federal Ministry of Justice, Agent

Mr.  Voss              Senatsrat,

                      Berlin Senator of

                      the Interior,                Adviser

For the Applicant

Mr.  Kierzynowski      Lawyer,                      Representative

THE LAW

        The applicant complains that her envisaged deportation to

Lebanon would amount to inhuman treatment and violates her right to

respect for her family life with her husband and three children.  She

invokes Articles 3 and 8 (Art. 3, 8) of the Convention.

        Article 3 (Art. 3) of the Convention provides that "no one shall be

subjected to torture or to inhuman or degrading treatment or

punishment." The Commission has constantly held that the deportation

or extradition of a person can, in certain exceptional circumstances,

involve a violation of Article 3 (Art. 3) where there is serious reason to

believe that the person to be deported 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).

        Article 8 para. 1 (Art. 8-1) of the Convention, inter alia, provides

that everyone has the right to respect for his family life.  According to

Article 8 para. 2 (Art. 8-2) there shall be no interference by a public

authority with this right except such as is in accordance with the law and is

necessary in a democratic society, inter alia, for the prevention of disorder

or crime.

        The respondent Government contend that the application is inadmissible

for non-exhaustion of domestic remedies within the meaning of Article 26 (Art.

26) of the Convention.  They submit that the applicant has not exhausted the

main administrative appeal proceedings before the Berlin administrative courts,

and that she failed to raise the substance of her complaint under Article 3

(Art. 3) of the Convention in the court proceedings concerning her request for

a suspension of the deportation order.

        The Commission recalls that if an individual complains that his

deportation violates Article 3 (Art. 3) of the Convention, only appeals with

suspensive effect can be considered effective (see No. 7216/75, Dec. 20.5.76,

D.R. 5 p. 137).  In the present case, the applicant's request for a suspension

of the deportation order remained unsuccessful.

        Furthermore, the Commission finds that, in the particular circumstances

of the present case, the applicant was not required to invoke before the

domestic authorities, in addition to her complaint about the imminent

separation from her family, her fears about the dangers and risks for her as a

single woman of Palestinian origin in Lebanon.  The Commission notes in

particular that, according to the established case law of the Berlin

Administrative Court of Appeal, which was not questioned by the respondent

Government, it was accepted that only stateless male Palestinians of an age

liable for military service were exposed to such dangers that they should not

be deported to Lebanon.  Consequently, no effective remedy as to this

allegation existed for the applicant.  Moreover, it is to be noted that, under

S. 86 para. 1 of the Administrative Code of Procedure, the Berlin

administrative courts had, ex officio, to examine the facts and to apply the

law accordingly.

        The applicant's complaint under Article 8 para. 1 (Art. 8-1) of the

Convention can also not be rejected for non-exhaustion of domestic remedies

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

of the Convention, since it is only another aspect of the decision to deport

the applicant to Lebanon, which cannot be dealt with separately.

        Furthermore, the Commission observes that the Berlin Senator of the

Interior, in his decision of 2 March 1989 dismissing the applicant's appeal of

23 March 1988, stated that the applicant could expect permission to return to

Berlin at the earliest after two years from the date of her departure.  At the

hearing on 8 March 1989, the respondent Government submitted that in similar

cases foreigners who had not been granted a residence permit under the

instruction of 1 October 1987 and who had had to leave Berlin, had, for

humanitarian reasons, already been permitted to return to Berlin.

        The Commission also notes that the Berlin Administrative Court and the

Berlin Court of Appeal, in the suspension proceedings in 1988, examined the

effect of the applicant's envisaged deportation upon her family life.  The

Berlin Senator of the Interior, in the above decision of 2 March 1989, referred

to the reasoning of the Berlin Administrative Courts in the suspension

proceedings concerning the alleged violation of her right to respect for her

family life.  The Commission observes that the main proceedings, which lasted

almost one year at the level of the administrative appeal proceedings, may not

terminate before expiry of the period of two years, when the applicant can

expect permission to return to Berlin.

        The Commission considers that the applicant, in these special

circumstances, cannot be required to await the outcome of the main proceedings.

        As to the well-foundedness of the application, the respondent

Government have submitted that the applicant failed to substantiate that she

would risk treatment contrary to Article 3 (Art. 3) of the Convention upon her

return to Lebanon.  As regards Article 8 (Art. 8) of the Convention, the

Government maintain that she had not shown that her family could not follow her

to Lebanon.  In any event, having regard to the applicant's conviction for

property offences, the interference with her right to respect for her family

life would be necessary in a democratic society for the prevention of disorder

and crime.

        The Commission, however, considers that the applicant's complaints

under Articles 3 and 8 para. 1 (Art. 3, 8-1) of the Convention raise complex

issues of fact and law which can only be resolved by an examination of the

merits.  The application cannot, therefore, be declared manifestly ill-founded.

No other grounds for inadmissibility have been established.

        For these reasons, the Commission

        DECLARES THE APPLICATION ADMISSIBLE

        without prejudging the merits of the case

Deputy Secretary to the Commission  Acting President of the Commission

     (J. RAYMOND)                           (S. TRECHSEL)