CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 avril 1997

.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. 34556/97                       by N.B. and F.B.                       against Germany          The European Commission of Human Rights (First Chamber) sitting in private on 9 April 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr     R. NICOLINI              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 13 January 1997 by N.B. and F.B. against Germany and registered on 21 January 1997 under file No. 34556/97;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Decides as follows:   THE FACTS        The first applicant is a Turkish citizen, born in 1971, and currently living in Turkey. The second applicant, a Turkish citizen, born 1970, is the wife of the first applicant and resides in Alpirsbach (Germany).        Before the Commission the applicants are represented by Mr. Rainer Schmid, a lawyer practising in Nagold.        The facts of the case, as submitted by the applicants, may be summarised as follows.        The first applicant's parents arrived in Germany in 1968. The applicant has five brothers and sisters. His elder brother lives in Turkey. The applicant attended school in different places, at last in Oberndorf. In 1988 he started to work in a factory in Alpirsbach- Römmlingsdorf.        On 8 July 1988 he married the second applicant in Turkey. On 27 April 1989 he was issued a residence permit. In February 1990, the second applicant followed him to Germany. A daughter was born in November 1990 and a son in July 1991.        On 18 August 1994 the first applicant was convicted by the Freudenstadt District Court (Amtsgericht) of rape and sentenced to two years' and four months imprisonment. The District Court found the applicant guilty of having raped a 19 year old girl in the night of 2 February 1994 in her car by using considerable violence. He had put his hands around her neck, his thumbs on her larynx and threatened to kill her if she refused to comply with his wishes. According to the District Court he had not shown any regrets at the trial. He alleged that the girl had previously had sexual intercourse with one of his brothers and had agreed to have sexual intercourse with him as well. The District Court described the first applicant as a "macho type man who by reason of his origin and education apparently had difficulties to understand that a woman would not want to have sexual intercourse with him".        The first applicant's appeal against this judgment was dismissed by the Rottweil Regional Court (Landgericht) on 24 February 1995. An appeal on points of law and a petition for pardon were unsuccessful.        On 13 November 1995 the first applicant began to serve his sentence.        On 20 December 1995 the Karlsruhe Regional Government (Regierungspräsidium) ordered the first applicant's expulsion from Germany and decided that the order to be enforced with immediate effect. The Regional Government noted that the first applicant had been convicted of a criminal offence and sentenced to more than two years' imprisonment. Reference was made in particular to Section 47 para. 2 (1) of the Aliens Act (Ausländergesetz). According to this provision, a foreigner shall be expelled from Germany if, by a final judgment, he has been sentenced to a minimum of two years' imprisonment and his sentence has not been suspended on remand. The Regional Government recalled that the first applicant had an unlimited residence permit and therefore enjoyed particular protection against expulsion. However, pursuant to Section 48 para. 1 of the Aliens Act, a foreigner could be expelled for serious reasons of public security and order. A conviction of rape constituted such a reason. By ordering a the first applicant's expulsion, the authorities had correctly exercised their discretionary powers and had observed the principle of proportionality. In the present case the first applicant's conduct and in particular the absence of any regrets showed that he had no consideration for the dignity of women. Special and general notions of prevention, namely the risk that he might commit further offences, and to deterring other aliens from committing similar offences, justified the first applicant's expulsion. The Regional Government took account of the applicant's personal situation, in particular that his wife and his two children lived in Germany, that he had an employment and a residence permit. However, the first applicant's youth, the rather recent arrival of his Turkish wife in Germany and the young age of his children were circumstances showing that the applicants would face no major problems if they returned with their children to Turkey.        The first applicant lodged an administrative objection (Widerspruch) against the expulsion order. These proceedings are still pending.        On 16 January 1996 the Regional Government indicated as additional reason for the immediate execution of the expulsion order that the public interest prevailed over the private interests of the first applicant to stay in Germany until the final decision was given in this matter.        The first applicant's request to suspend, pending the outcome of the appeal proceedings, the execution of the expulsion order was dismissed by the Karlsruhe Administrative Court (Verwaltungsgericht) on 26 August 1996. The Court found that the expulsion order had been issued in accordance with the relevant provisions of the Aliens' Act. The Regional Government had duly exercised their discretion and correctly concluded that the public interest in the prevention of disorder and crime outweighed the first applicant's interests in staying in Germany. The Administrative Court stated in particular that the applicant had used physical force against his victim when committing the offence and had threatened to kill her. The first applicant's readiness to use force and his disdain for the physical integrity of others justified the fear that he might commit further offences if staying in Germany. Even if, according to the Psychological Service of the Rottenburg prison, there was no indication that the first applicant might commit further sexual or other offences, the Court considered that the circumstances of the committal of the offence did not sufficiently exclude the risk of repetition. Finally, the Administrative Court found that the interference with the first applicant's respect for his family life was in any event justified under para. 2 of Article 8 of the Convention.        In a letter addressed on 14 October 1996 to the applicants' lawyer, the Psychological Service of the Rottenburg prison confirmed that the there was no particular risk of the applicant committing further sexual offences. However, they could not completely exclude such a possibility. According to them, solely a further expert opinion could give more indications on this subject.        The first applicant's appeal (Beschwerde) against the decision of the Karlsruhe Administrative Court of 26 August 1996 was dismissed by the Baden-Württemberg Administrative Court of Appeal (Verwaltungsgerichtshof) on 12 November 1996.        On 7 January 1997 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a panel of three judges, decided not to admit the applicant's constitutional complaints for a decision.        In a letter of 17 January 1997 the Rottenburg prison authorities stated that the applicant's conduct and work in prison were exemplary and that he was authorised to move freely within the prison. From the beginning of his detention his wife and children were paying him three monthly visits. The prison authorities further stated that the first applicant deeply regretted having committed the offence and that he was resolved to undertake steps with a view to improving his personality. If the first applicant were not subject to measures relating to his status of a foreigner, he could have been granted provisional leave from prison.        At the end of January or the beginning of February 1997 the first applicant was expelled to Turkey.     COMPLAINTS   1.    The applicants complain under Article 8 of the Convention that the first applicant's expulsion to Turkey violates their right to respect for family life.        They submit that the refusal to suspend the execution of the expulsion order was not proportionate to the aim pursued. The first applicant submits that he had been brought up and educated entirely in Germany, that he is married to a Turkish woman living with their two children in Germany and that he has a permanent employment in this country. He has solely spent his holidays in Turkey where he has no other relatives than an uncle.        The applicants stress that the first applicant's expulsion would put an end to their family life and that they would suffer an irreparable damage if the first applicant were to be separated from his family for several years. The second applicant and the children are seriously affected by the first applicant's expulsion. The children are born in Germany and will attend school this year.        According to the applicants, the German authorities have not correctly exercised their discretionary powers when affirming that there was a risk of the first applicant committing further offences. In this connection the applicants refer to the opinion given by the Psychological Service of the Rottenburg prison on the favourable prognosis of the first applicant's future conduct. They also refer to the fact that the first applicant has already served most of the sentence. His previous criminal behaviour did, therefore no longer justify his expulsion. They also complain that the Administrative Court of Appeal has decided without ordering an additional expert opinion.   2.    The applicants further submit that the violation of Article 8 of the Convention constitutes also an inhuman treatment contrary to Article 3 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 13 January 1997 and registered on 21 January 1997.        On 24 January 1997 the Commission decided not to apply Rule 36 of the Commission Rule's of Procedure.     THE LAW   1.    The applicants complain of the refusal of the German authorities to grant suspensive effect to the expulsion order given against the first applicant pending the outcome of his appeal against the decision to expel him from Germany. They allege that this immediate execution of the expulsion decision and the first applicant's expulsion to Turkey have the effect of breaking up there family life. They rely 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 first observes that the question in issue concerns the refusal to suspend the execution of the expulsion order, but not the expulsion order as such, in respect of which domestic remedies are not yet exhausted.        The question before the Commission is therefore whether the refusal of granting the expulsion order suspensive effect, pending the applicant's appeal, reveals an appearance of a violation of the Convention.        The Commission reiterates that no right of an alien to enter or to reside in a particular country is as such guaranteed by the Convention. Contracting States have the right, as a matter of well established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens (see Eur. Court HR, Ahmed v. Austria judgment of 17 December 1996, to be published in Reports of Judgments and Decisions 1996, para. 38).        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 HR, Moustaquim v. Belgium 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 considers that the execution of the impugned measure amounted to an interference with the applicants' exercise of their right to respect for their family life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention. However, such interference is not in breach of Article 8 (Art. 8), if 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, when refusing to grant the expulsion order suspensive effect, the German authorities relied on Section 47 para. 2 (1) and 48 para. 1 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 refusing to grant the expulsion order suspensive effect, the German authorities considered that the applicant had been convicted of a serious offence and that immediate execution of the expulsion order was necessary for the prevention of disorder and crime. The Commission finds that 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 HR, Berrehab v. the Netherlands judgment of 21 June 1988, Series A no. 138, p. 15, para. 128; Funke v. France judgment of 25 February 1993, Series A no. 256-A, p. 24, para. 55). The decisions given by the domestic authorities in the field must be justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, e.g., Eur. Court HR, Nasri v. France judgment of 13 July 1995, Series A no. 320-B, p. 25, para. 41).        The Commission notes that the administrative authorities had regard to the applicant's private and family situation and in particular to the fact that the first applicant was born in Germany and to the situation of his family. They weighed his private and family interests against the public interest in his immediate leaving the country, based on his conviction for rape and on his sentence to more than two years' imprisonment. This reasoning was confirmed by the Baden-Württemberg Administrative Court of Appeal and not contradicted by the Federal Constitutional Court.        In these circumstances, the Commission considers that the reasons given by the German authorities are relevant and sufficient for the refusal to grant the expulsion order suspensive effect and to expel the first applicant before the termination of the proceedings concerning the challenged order to leave Germany. The Commission further notes that it is not unreasonable to expect the first applicant's Turkish wife and young children to follow him to Turkey. The applicants have not shown that the provisional execution of the expulsion order would cause them irreparable or disproportionate damage. Rather the first applicant will be free to return to Germany if he eventually succeeds in his administrative court action. The Commission recalls in this respect that Article 8 (Art. 8) of the Convention does not guarantee a right to choose the most suitable place to develop family life (see Eur. Court HR, Ahmut v. the Netherlands judgment of 28 November 1996, to be published in Reports of Judgments and Decisions 1996, para. 71). Weighing the applicants' private and family interests, and the public interests at stake and taking into account the margin of appreciation which is left to Contracting States in such circumstances, the Commission does not find that the German authorities achieved an improper balance between the interests involved.        Consequently, the interference with the applicants' right guaranteed by Article 8 (Art. 8-2) was justified under para. 2 of that Article 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 this part 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.    The applicants maintain that the first applicant's expulsion from Germany and the consequences for their family life has to be considered as inhuman treatment contrary to Article 3 (Art. 3) of the Convention, which provides:        "No one shall be subjected to torture or to inhuman or      degrading treatment or punishment."        The Commission, having found that the decisions complained of were justified under Article 8 para. 2 (Art. 8-2) of the Convention considers that the same decisions cannot be regarded as constituting inhuman or degrading treatment under Article 3 (Art. 3) of the Convention (see No. 9427/78, Hendriks v. the Netherlands, Comm. Report 8.3.82, para. 130, D.R. 29 pp. 5, 20).          No risk of the first applicant being subject to torture or inhuman treatment in Turkey has been alleged or made out.        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, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.        M.F. BUQUICCHIO                               J. LIDDY         Secretary                                  President    to the First Chamber                       of the First Chamber