CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 septembre 1995

.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. 25168/94                       by Aziz AKBAS                       against Germany        The European Commission of Human Rights (First Chamber) sitting in private on 14 September 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 28 July 1994 by Aziz AKBAS against Germany and registered on 16 September 1994 under file No. 25168/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The facts, as they have been submitted by the applicants, may be summarised as follows.        The applicant, born in 1969, is a Turkish national who in 1975 joined his mother and sister living in Germany.   In June 1993 the applicant married a Turkish national, born in Turkey in 1972, who had apparently come to Germany during her childhood.   When lodging his application the applicant was resident in Dortmund.   Before the Commission, he is represented by Mr. C. Petlalski, a lawyer practising in Dortmund.        On 23 March 1989 the Dortmund District Court (Amtsgericht) convicted the applicant of theft and sentenced him, as a juvenile, to six months' imprisonment on probation.   On 28 April 1989 the Dortmund District Court convicted him of theft and, taking into account his previous conviction, sentenced him, as juvenile, to seven months' imprisonment on probation.   On 26 March 1990 the Dortmund Regional Court convicted the applicant of dangerous assault and, taking into account the previous convictions, sentenced him, as a juvenile, to ten months' imprisonment on probation.   On 12 June 1991 the Dortmund District Court convicted the applicant of driving without a driving licence and imposed a fine of DM 600.        On 5 February 1992 the Dortmund District Court sentenced the applicant of drug trafficking and of theft on four counts and sentenced him, as a juvenile, to one year and ten months' imprisonment.   The execution of the sentence was to be suspended on the condition that the applicant would undergo a drug therapy.   He was released from prison in April 1992 and participated in a drug therapy which he terminated in April 1993.        On 15 March 1993 the Hassberge County Administration (Landratsamt) informed the applicant about its intention to refuse his request for a prolongation of his residence permit and to request him to leave the Federal Republic of Germany in view of his conviction of drug trafficking and theft, and invited him to submit any comments which he might wish to make.   The applicant, represented by counsel, filed his observations on 1 April 1993.        On 5 May 1993 the Hassberge County Administration refused the applicant's request for a prolongation of his residence permit and ordered him to leave Germany.   The applicant was requested to leave within eight weeks after the service of the decision, or in case of a stay of execution, within eight weeks after a final decision.   The County Administration also ordered his expulsion in case that he should not leave Germany in time.        In its decision, the County Administration, having noted the applicant's conviction of drug trafficking, found that the conditions for an expulsion order under S. 47 para. 2 (2) of the Aliens Act (Ausländergesetz) were met.   According to this provision, aliens are, as a rule, to be expelled (Regelausweisung), if they were involved in drug trafficking.        The County Administration also considered whether there were special circumstances to the effect that the applicant's expulsion would appear as unreasonable hardship.   In this respect the Administration observed that the applicant had come to Germany at the age of six and that his expulsion gravely interfered with his personal situation.   However, he had seriously violated the interests of the Federal Republic of Germany.   Referring to the case-law of the Federal Constitutional Court (Bundesverfassungsgericht), the Administration recalled that in general drug offences were a particularly serious reason justifying the expulsion of an alien and outweighed even important private interests.   The applicant could be expected to adapt to the living situation of his home country Turkey.   The fresh start in his life, namely without drugs, could not justify his further stay in the Federal Republic, either.   As regards his mother's stay in Germany, the Administration found that the applicant, being 23 years old, could be expected to life on his own and to entertain the family relations on the basis of visits in Turkey.        The applicant lodged an administrative appeal (Widerspruch) on 3 June 1993.        On 23 June 1993 the Würzburg Administrative Court (Verwaltungs- gericht) dismissed the applicant's request for a stay of execution of the decision of May 1993.   The Court found that the applicant's administrative appeal and envisaged action against the decision refusing his request for a residence permit and ordering him to leave Germany did not offer any prospect of success.   The Administrative Court, having regard in particular to his conviction of February 1992, considered that the decision was in accordance with the relevant provision of the Aliens Act.   The Administrative Court further confirmed in detail the findings of the Administration that the applicant had failed to show any special circumstances that he would require protection against expulsion.   In this respect, the Court also took into account the applicant's submission that he intended to marry a Turkish national with a residence permit in Germany.   The drug therapy had been in the applicant's own interest and, in view of his numerous other convictions which did not relate to his drug consumption, could not be regarded as special circumstance either.        On 23 November 1993 the Bavarian Administrative Court of Appeal (Verwaltungsgerichtshof) dismissed the applicant's appeal.   The Court confirmed the considerations of the lower instances.   Moreover, according to the Administrative Court of Appeal, there was no indication of a violation of the applicant's right to respect for his family life under Article 8 para. 1 of the Convention as his expulsion was justified under Article 8 para. 2.   Taking into account that the applicant had committed numerous, partly serious, criminal offences, the termination of his residence in Germany was necessary for the prevention of disorder and crime.   The applicant had committed his offences during an important lapse of time and not only as juvenile, but also as adolescent.   The applicant had taken a criminal development and was likely to commit further criminal offences.   Moreover, the applicant had not fully integrated in Germany, in particular he had not learnt a profession and did not succeed in staying for longer periods with his various employers.   He could thus be expected to see his way in Turkey.   Finally, the applicant's marriage with a Turkish national six weeks after the decision of 5 May 1993 could not be regarded as exceptional circumstance on the ground that the spouses were aware that the applicant's residence in Germany was about to terminate.        On 24 January 1994 the Federal Constitutional Court (Bundesver- fassungsgericht) refused to admit the applicants' constitutional complaint (Verfassungsbeschwerde).        On 22 February 1994 the applicant's child was born.        On 3 August 1994 the Diet of the Land Bayern refused the applicant's petition.        On 23 March 1995 the Dortmund Aliens Office (Ausländeramt) reminded the applicant that he has to leave Germany, and invited him to pass at the Office in order to arrange for his departure.        It does not appear whether the applicant has meanwhile left Germany.   COMPLAINTS        The applicant complains under Article 8 of the Convention about the decision of May 1993 refusing his request for a residence permit and ordering him to leave Germany.   THE LAW        The applicant complains that the decision of the Hassberge County Administration of May 1993 will separate the applicant from his family in Germany.   He relies on Article 8 (Art. 8) of the Convention which states, so far as relevant:        "1.    Everyone has the right to respect for his private and      family life ...        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society ... for the      prevention of disorder or crime, ... "        The Commission notes that the applicant lodged an administrative appeal against the decision of May 1993, and subsequently exhausted remedies in court proceedings with a view to obtaining a stay of execution.   In these proceedings the administrative court, in a summary nature, considered the applicant's prospects of success regarding his appeal in the main proceedings.   The applicant did not show that he also exhausted the remedies available to him in the main proceedings regarding the decision in question.   The question, therefore, arises whether the applicant exhausted domestic remedies, as required by Article 26 (Art. 26) of the Convention.   However, this question can be left open as the application is anyway manifestly ill-founded for the following reasons.        The Commission recalls that no right of an alien to enter or to reside in a particular country is as such guaranteed by the Convention. However, the expulsion of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life guaranteed in Article 8 para. 1 (Art. 8-1) (see Eur. Court H.R., Moustaquim judgment of 18 February 1991, Series A no. 193, p. 18, para. 36; No. 9203/80, Dec. 5.5.81, D.R. 24 p. 239).        The Commission finds that the decision refusing the applicant's request for a residence permit and ordering him to leave Germany interferes with his right to respect for family life within the meaning of Article 8 para. 1 (Art. 8-1).   Such interference is in breach of Article 8, unless it is justified under Article 8 para. 2 (Art. 8-2) of the Convention.        As regards the lawfulness of the interference, the Commission observes that the German authorities, when ordering the first applicant to leave Germany, relied on Section 47 para. 2 (2) of the Aliens Act. The interference was therefore "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2).        Moreover, when ordering the first applicant to leave Germany, the German authorities considered that the applicant had been convicted of serious drug offences and that the impugned measure was in the interest of the prevention of disorder and crime.   This is a legitimate aim mentioned in Article 8 para. 2 (Art. 8-2).        As regards the question whether the interference complained of was "necessary in a democratic society", the Commission recalls that the Contracting States enjoy a certain margin of appreciation in assessing whether such a need for an interference exists, but it goes hand in hand with European supervision (see, Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A no. 138, p. 15, para. 128; Funke judgment of 25 February 1993, Series A no. 256-A, p. 24, para. 55).        The Commission notes that the administrative authorities had regard to the applicant's private and family situation.   The German administrative courts also considered in detail the first applicant's long stay in Germany and the situation of his family, including his marriage following the expulsion order in May 1993, and weighed his private and family interests against the public interest in his leaving the country, based on his conviction for drug offences and his previous criminal record.        In these circumstances, the Commission considers that there are relevant and sufficient reasons for the challenged order to leave Germany.   Weighing the applicant's private and family interests, and the public interests at stake, the Commission finds that the German authorities did not overstep the margin of appreciation left to them.        Consequently, the interference with the applicants' right to respect for their private and family life was justified under Article 8 para. 2 (Art. 8-2) in that it can reasonably be considered "necessary in a democratic society ... for the prevention of disorder and crime." Thus there is no appearance of a violation of Article 8 (Art. 8) of the Convention.        It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)