CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 mars 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF                     Application No. 12131/86                   by B.A.                   against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 2 March 1987, the following members being present:                   MM. C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   B. KIERNAN                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   H. VANDENBERGHE                   F. MARTINEZ                 Mr.   H. C. KRÜGER 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 29 October 1985 by B.A. against the Federal Republic of Germany and registered on 23 April 1986 under file N° 12131/86;           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 applicant is a Turkish citizen, born in 1948 and at present detained at Butzbach prison, Federal Republic of Germany.           He has been living in Germany since 1972.   In 1973 his wife, also a Turkish citizen, joined him there.   Two of their four children are living in Turkey, the other two, one of whom is handicapped, are living in Germany.           In November 1979 the applicant tried to smuggle 9.3 kilograms of hashish from Germany into Switzerland, but was arrested at the German/Swiss border.   He apparently confessed to this offence and was subsequently convicted of illegal drug trafficking by the Darmstadt Regional Court (Landgericht) on 27 July 1982, and sentenced to one year's imprisonment.   The execution of this sentence was, however, suspended for three years.           The applicant submits that before and also after the trial he and various family members were threatened for having incriminated an accomplice.           On 11 December 1982, the applicant was again arrested when a package containing 400 grams of heroin was handed over to him at the Munich Central Station.   The applicant submits that he did not know that this package contained heroin.           On 25 November 1983 he was convicted by the Munich Regional Court I (Landgericht I) and sentenced to eight years' imprisonment for illegal drug trafficking but this judgment was partly set aside on 5 July 1984 by the Federal Court of Justice (Bundesgerichtshof). Thereupon, on 14 December 1984, the applicant was convicted by another chamber of the Munich Regional Court I of complicity in illegal drug trafficking and sentenced to five and a half years' imprisonment. An appeal on points of law (Revision) filed on 20 December 1984 was withdrawn on 14 January 1985.   Thereby the judgment became final.   On 23 January 1985 the applicant's defence counsel received the reasoned judgment.           On 6 March 1985 the applicant requested a re-trial.   This request was declared inadmissible by the Augsburg Regional Court on 24 July 1985, the applicant's appeal (sofortige Beschwerde) being of no avail.           In view of these two convictions, the applicant was expelled (ausgewiesen) from the Federal Republic of Germany by an order of the City of Munich of 15 April 1985 which was served on his lawyers on 23 April 1985.   Additionally, he was ordered to be deported (abgeschoben) after having served his sentence.   Apparently his deportation was due to take place in February 1987.   COMPLAINTS           Invoking Article 2 of the Convention, the applicant complains that his life and that of his family were not protected by the German authorities when he was threatened after having incriminated his accomplice.           He further complains under Articles 5 and 6 of his arrest and conviction by the Munich Regional Court.   He claims to be the victim of a plot.   The Courts had not admitted evidence on his behalf and had not been impartial.           He further submits that Article 6 para. 2 was violated as he was presumed guilty before having been convicted.           As an effective remedy had been denied him, Article 13 had been violated.           The applicant further complains about conditions at Butzbach prison, invoking Article 14.           He also alleges a violation of Article 17 of the Convention.           Finally, he complains about his expulsion and deportation, which would uproot his family and deprive his handicapped child of the medical care needed.   He invokes Article 14 of the Convention and Article 4 of Protocol No. 4.   The applicant also submits that after his deportation to Turkey he will be prosecuted there for an offence in connection with the one of which he had been convicted in the Federal Republic of Germany and that he might face the death penalty.     PROCEEDINGS BEFORE THE COMMISSION          On 10 November 1986 the applicant requested an indication to the Government of the Federal Republic of Germany that he should not be deported until his case was decided by the Commission.   However, on 14 November 1986 the President decided not to apply Rule 36 of the Commission's Rules of Procedure.           On 24 November 1986 the applicant requested the Commission to reconsider the President's ruling, submitting that after his deportation to Turkey he would be prosecuted there for an offence in connection with the one of which he had been convicted in the Federal Republic of Germany and that he might face the death penalty.   Having considered the applicant's request on 12 December 1986, the Commission decided not to apply Rule 36 of its Rules of Procedure.   THE LAW   1.       The applicant complains that he was arrested and convicted in violation of Articles 5 and 6 (Art. 5, 6) of the Convention.           It is true that Article 5 (Art. 5) secures to everyone the right to liberty and security of person and Article 6 (Art. 6) to everyone charged with a criminal offence the right to a fair and public hearing by an independent and impartial tribunal established by law.           However, even assuming that the applicant could be considered as having exhausted the domestic remedies at his disposal in view of the fact that he had already lodged an appeal on points of law (Revision) and that therefore a second appeal would not have constituted an effective remedy, the Commission recalls that according to Article 26 (Art. 26) of the Convention it "may only deal with the matter .... within a period of six months from the date on which the final decision was taken".   According to its constant jurisprudence the "final decision" within the meaning of Article 26 (Art. 26) refers solely to the final decision involved in the exhaustion of all domestic remedies according to the generally recognised rules of international law.   In particular, only a remedy which is "effective and sufficient" can be considered for this purpose (see e.g. decisions on the admissibility of Applications No. 918/60, Collection of Decisions 7, pp. 108, 110 and No. 654/59, Yearbook 4, pp. 277, 283).           The Commission finds that, in the present case, the applicant's petition for a retrial, lodged on 6 March 1985, was not an effective remedy under the generally recognised rules of international law.   Consequently, the decisions regarding this petition cannot be taken into consideration in determining the date of the final decision for the purpose of applying the six months' time-limit laid down in Article 26 (Art. 26).   The final decision regarding the applicant's conviction and sentence is accordingly the decision of the Munich Regional Court which was given on 14 December 1984 and which became final on 15 January 1985, whereas the present application was submitted to the Commission on 29 October 1985, that is more than six months after the date of this decision.   Furthermore, an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of that period.           It follows that this part of the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.       The applicant further complains of his expulsion and imminent deportation to Turkey.   He also complains that his life was not protected and of discriminatory treatment at the prison.   He invokes Articles 2 and 14 (Art. 2, 14) of the Convention and Article 4 of Protocol No. 4 (P4-4) .           However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of the Convention and in particular whether the provisions invoked by the applicant are applicable here.   Under Article 26 (Art. 26) of the Convention, the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           As regards the applicant's expulsion and imminent deportation, he has not shown that he has lodged an objection (Widerspruch) against the order of expulsion and deportation or that he has pursued this matter any further before the competent administrative courts.           It is true that the applicant also complains that subsequent to his deportation to Turkey he would have to stand trial there and face the death penalty.   However, even if the order of the City of Munich of 15 April 1985 to expel and deport the applicant had already become final when the applicant learned about these developments, he could, in view of this new fact, have requested the authorities to re-open these proceedings.           However, the applicant has not shown that he made such a request or that he has in any other manner requested the competent German authorities to suspend his deportation.   Consequently, he cannot be considered to have exhausted the domestic remedies at his disposal.           As regards the applicant's complaints under Article 2 (Art. 2) that his life was not protected and under Article 14 (Art. 14) of discriminatory treatment at the prison, the Commission observes that the applicant has not shown that he raised these complaints before the Federal Constitutional Court or before any other German courts or authorities.           Therefore he did not exhaust the domestic remedies available to him under German law in this respect.           Moreover, an examination of either complaint does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and his application must in this respect be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.       The applicant also complains under Article 13 (Art. 13) that he has been denied an effective remedy.           However, the Commission observes that it was possible for him to lodge an appeal on points of law (Revision) against his conviction, subsequently to lodge a constitutional complaint and also to raise an objection (Widerspruch) against the order of expulsion and deportation and subsequently to bring proceedings before the administrative courts.   The applicant has not demonstrated that he could not make use of these remedies.           Therefore, the Commission cannot find any appearance of a violation of Article 13 (Art. 13) of the Convention.   It follows that this complaint must be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       The applicant has finally alleged a violation of Article 17 (Art. 17) of the Convention.   However, the Commission finds no issue under this provision.   It follows that this part of the application must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission            President of the Commission               (H.C. KRÜGER)                             (C.A. NØRGAARD)