CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 avril 1989

.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. 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)