Resolution CM /ResDH(2007)125 [1]

Execution of the judgment of the European Court of Human Rights

Yilmaz against Germany

(Application No. 52853/99, judgment of 17 April 2003, final on 17 July 2003)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the fact that the expulsion of the applicant to Turkey by an administrative decision of 4 September 1998 and 12 November 1998, combined with an indefinite exclusion from German territory, amounted to a disproportionate interference in the applicant ' s right to family life, taking into account the circumstances of the case, namely his family situation, in particular the birth of his son on February 1999, and the fact that he held a permanent residence permit in Germany when the expulsion order was made (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with Germany ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM /ResDH(2007)125

Information about the measures to comply with the judgment in the case of

Yilmaz against Germany

Introductory case summary

The case concerns the fact that the expulsion of the applicant to Turkey by an administrative decision of 4 September 1998 and 12 November 1998, combined with an indefinite exclusion from German territory, amounted to a disproportionate interference in the applicant ' s right to family life, taking into account the circumstances of the case, namely his family situation, in particular the birth of his son on February 1999, and the fact that he held a permanent residence permit in Germany when the expulsion order was made (violation of Article 8).

On 7 March 2000 the applicant left Germany for Turkey . On 15 June 2000, the administrative authority of the Allgäu district refused, for the time being, to grant a provisional residence permit to visit his son.

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

Non-pecuniary damage

Total

P aid on

3 000 €

3 000 €

18/08/2003

b) Individual measures

The respondent state indicated that the competent administrative authorities have set a term to the expulsion order, which will expire on 7 March 2007. Since the applicant has not appealed against this decision, it has become final. Article 9, paragraph 3, of the Law on aliens – now replaced by Article 11, paragraph 2 of the Residence Act - provides that before the expiration of the term set to the expulsion order, an alien ' s entry into the Federal Republic of Germany may exceptionally be allowed for a short period of time, when his presence is reasonably necessary or when the refusal of such a permit would be disproportionately harsh ( unbillige Härte ). Thus, the applicant may obtain a short-term residence permit in order to visit his minor child.

II. General measures

The judgment of the European Court has been disseminated by letter of the Government Agent of 24 June 2004 ( with a reference to the relevant paragraphs) to the Bavarian Ministries of Interior and Justice, to the Federal Ministry of Interior, to the Federal Constitutional Court , the Federal Administrative Court and all the justice and interior authorities of the other Länder . All judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice ( www.bmj.de , Themen: Menschenrechte , EGMR) which provides a direct link to the European Court ' s website for judgments in German www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch/ ). As the violation found does not appear to reveal a structural problem, no other general measures are deemed necessary.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent new, similar violations and that Germany has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 31 October 2007 at the 1007th meeting of the Ministers’ Deputies